NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

To promote health and suppress COVID-19, Tarrant County Judge B. Glen Whitley announced the issuance of a stay-at-home order (the “Order”).  The Order further restricts activities of all persons residing and businesses operating in Tarrant County, Texas, and takes effect at 11:59 p.m. on March 24, 2020 and continues at least until April 7, 2020.

Like the Stay Safe, Stay Home Order issued on March 23 in nearby Dallas County, the Order requires all individuals living in Tarrant County to stay home and leave only for essential travel, to go to work in an essential business, government service or essential critical infrastructure, or to perform minimum basic operations.

What does this Order mean for businesses operating in Tarrant County?

Unless a business fits the Order’s definition of an “essential business,” it must immediately close its doors to the public but may continue “minimum business operations” as long as its employees and contractors maintain social distancing. Minimum business operations are limited to those operations necessary to (1) maintain security, upkeep and maintenance of premises, equipment or inventory; (2) facilitate work from home; (3) facilitate online or call-in sales performed by employees in a store or facility that is closed to the public; and (4) perform in-store repair services in a store or facility that is closed to the public.  

Although businesses deemed essential may continue to operate, they must not only maintain social distancing but also adhere to new business-specific restrictions. For instance, healthcare facilities may continue operating but are prohibited from performing elective medical, surgical and dental procedures and must postpone or cancel such services. Similarly, funeral homes, crematoriums and cemeteries may operate, but no more than 10 non-employees may be present at the same time.   

What is an Essential Business?

The Order identifies 15 categories of businesses deemed essential: (1) essential health care services; (2) essential government functions; (3) essential critical infrastructure; (4) essential retail; (5) providers of basic necessities to economically-disadvantaged populations; (6) essential services necessary to maintain essential operations of residences or other essential businesses; (7) news media; (8) financial institutions; (9) real estate transactions; (10) childcare services; (11) animal shelters, zoos, and other businesses that maintain live animals; (12) construction; (13) funeral services; (14) worship services; and (15) moving supply services. There is no formal procedure for determining whether a business’s operations are essential; instead, Judge Whitley encouraged businesses to “use common sense” to determine whether their operations are essential. Additionally, the Order provides some guidance to assist businesses in making such determination:

• Essential Health Care Services. These include healthcare operations such as hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers, substance abuse providers, blood banks, medical research, or any related and/or ancillary healthcare services, and veterinary care provided to animals. Also included in this category are home-based care, residential facilities and shelters for seniors, adults, or children. Healthcare operations do not include fitness and exercise gyms and similar facilities. Also, healthcare services do not include elective medical, surgical, and dental procedures as established in accordance with this declaration.

• Essential Government Functions. All services provided by local governments needed to ensure the continuing operation of the government agencies to provide for the health, safety and welfare of the public. All essential government functions shall be performed in compliance with social distancing requirements of six feet, to the extent possible.

• Essential Critical Infrastructure. This category includes work necessary to operate and maintain the 16 critical infrastructure sectors as identified by the National Cybersecurity and Infrastructure Agency (CISA), including public works construction; residential and commercial construction; airport operations; water; sewer; gas; electrical; oil refining; roads and highways; public transportation and other private transportation providers such as Uber and Lyft that provide transportation services necessary for the performance of essential activities, essential businesses, essential infrastructure, or essential government functions; solid waste collection and removal; internet and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services); financial institutions; defense and national security-related operations; and essential manufacturing operations.

• Essential Retail. Included in this category are organizations that provide, sell, cultivate, ship or deliver human or pet food or essential goods, offer lodging, repair automobiles and bicycles, supply products needed to work from home, provide laundry services, sell liquor or prepared foods by delivery, take out, drive-in, drive-through, and sell hardware or products necessary for essential repairs and maintenance of a home or business.

• Providers of Basic Necessities to Economically Disadvantaged Populations. Social services and charitable organizations that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise vulnerable individuals.

• Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses. Businesses that collect, process and dispose of trash and recyclables, repair automobiles, clean and maintain buildings, warehouse and distribute goods, perform pool, plumbing, electrical or security services, support or provide necessary supplies to other essential businesses and assist others in complying with legally-mandated activities.

• News Media. Newspapers, television, radio, and other media services.

• Financial Institutions. Banks and related financial institutions, consumer lenders, sales and finance lenders, credit unions, appraisers, and title companies.

• Real Estate Transactions. Services related to current real estate transactions. As much business as possible must be conducted with web-based technology to limit in-person contact.

• Childcare Services. Childcare facilities providing services that enable employees who perform Essential Activities or work for an Essential Business to work as permitted.

• Animal Shelters, Zoos, and Other Businesses that Maintain Live Animals. Businesses that maintain and care for live animals are not permitted to allow any visitors or patrons, but may continue to operate to the extent necessary to provide the necessary care for the animals. Nothing in this section shall prohibit a non-employee from entering the premises to perform health care services or other Essential Business services.

• Construction. Construction under a valid permit issued by a governmental entity.

• Funeral Services. Funeral homes, crematoriums and cemeteries may operate, but no more than 10 non-employees may be present at the same time.

• Worship Services. No in-person worship services are permitted. Needed staff can attend to produce audio/video services for transmission.

• Moving Supply Services. Businesses that provide residential and/or commercial moving services and necessary moving supplies.

Of particular importance, the Order does not appear to distinguish between nonessential and essential operations within a single operating business.  Thus, businesses exempted as an “essential business” may continue all operations, including back office and supporting operations.  

Other jurisdictions have stay-at-home orders; what is unique about this Order?

The Order includes a price-gouging provision not historically found in other stay-at-home orders. That provision prohibits sellers from selling groceries, beverages, toilet articles, ice, meals, medicine and medical equipment and supplies for a price greater than what was charged for those same goods and services on March 16, 2020—the day before the Tarrant County Commissioners issued a Renewal of Declaration of Local Disaster due to Public Health Emergency.

How will the Order be enforced?

Those found in violation of the Order are subject to criminal prosecution. Specifically, a violation of the Order constitutes a Class B misdemeanor, which is punishable by confinement in jail for up to 180 days or a fine of up to $1,000.

Are there any other related orders that impact businesses in Tarrant County?

Large cities within Tarrant County have also issued stay-at-home orders. On March 24, 2020, Mayor Betsy Price announced the City of Fort Worth’s stay-at-home order, which materially tracks the Order, but does not specify how the city anticipates enforcing its stay-at-home order and does not include a price-gouging provision. That same day, the City of Arlington issued its stay-at-home order. It too materially tracks the Order, but adds “wedding services” to the list of essential businesses. Both stay-at-home orders include business-specific restrictions on essential businesses that are not otherwise found in the Order. For instance, Arlington and Fort Worth restaurants offering take out, delivery, drive-in or drive-through services are prohibited from having more than 10 non-employees present inside the restaurant at any one time. Both stay-at-home orders take effect at 11:59 p.m. on March 24, 2020 and continue at least until April 3, 2020.

Next Steps

As the response to COVID-19 is constantly evolving, businesses should continue to monitor developments taking place at the federal, state, and local levels and contact experienced legal counsel to assist with questions regarding their coverage and obligations under these types of orders.