Texas COVID-19 Update: Many Businesses Must Now Require Employees and Customers to Wear Face Coverings or Risk Civil Monetary Penalties

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Seyfarth Synopsis:  As COVID-19 cases spike in the state of Texas, many large Texas counties are now mandating businesses to require employees and customers to wear face coverings or face civil penalties. In a reversal of prior policy, Governor Greg Abbott will not prevent local governments from enforcing these new ordinances. Texas employers should continue reading below for an overview of these new requirements and penalties in Texas’ largest counties.

Texas Governor Greg Abbott has consistently taken the position that face masks and face coverings are important to reduce the spread of COVID-19. But he has previously stopped short of issuing a statewide mandate on this issue, and has prevented local governments from imposing civil penalties on individuals who fail to comply with local mask/face covering requirements. However, as COVID-19 cases in the state of Texas surge, local governments and the Governor appear to have reached a possible compromise. Governor Abbott recently announced that he approved of recent local ordinances requiring businesses to force their employees and customers to wear masks or face coverings, including potential civil penalties for businesses who do not comply. Civil or criminal penalties for individuals who fail to wear face coverings are still off the table.

Summary of Common Local Requirements

Over the past week, many Texas counties have passed new local ordinances requiring commercial businesses providing goods or services directly to the public to develop and implement a health and safety policy. At a minimum, these policies must require mandatory face coverings for all employees and visitors when they are in an area or performing an activity which will necessarily involve close contact or proximity to co-workers or the public and where six feet of separation is not feasible. The health and safety policy may include the implementation of other mitigating measures designed to control and reduce the transmission of COVID-19, such as temperate checks and health screenings.  In addition, businesses must display the health and safety policy in a conspicuous location sufficient to provide notice to employees and visitors of the safety requirements.  Some of the local ordinances include sample or template policies available to employers for posting.  Links to those postings are available below.

The local ordinances include the potential for varying fines against non-compliant businesses. However, they do not impose civil or criminal penalties on individuals for failure to wear a face covering.  Details about potential civil fines and other county-specific information are outlined below.

Bexar County

Bexar County was one of the first counties in Texas to pass an order imposing fines on commercial businesses who fail to require visitors and employees to wear face coverings.  Bexar County also issued a sample poster for businesses to display the health and safety policy requirements.  The sample poster is available here. 

The Bexar County Order went into effect June 17, 2020 and remains in effect through June 30, 2020.  Businesses who fail to develop and implement the health and safety policy by June 22, 2020, however, may incur a fine not to exceed $1,000 per violation.

Cameron County

The Cameron County Order went into effect June 19, 2020 and will continue through June 30, 2020.  Notwithstanding the effective date, businesses have until June 24, 2020 to develop, implement, and ensure compliance with the required health and safety policy before being assessed penalties.  Failure to do so may result in a fine against the business not to exceed $500 per violation.

Dallas County

The Dallas County Order took effect June 19, 2020 and continues through August 4, 2020.  Dallas County businesses must develop and implement a health and safety policy, as required by the Order.  Failure to do so by June 24, 2020 may result in a fine to the business not to exceed $500 for each violation.

El Paso County

The El Paso County Order differs slightly from the common requirements outlined above.  The Order requires all businesses (not just commercial businesses providing goods or services directly to the public) in the County of El Paso to develop and implement a health and safety policy. The broad Order applies to any for-profit, non-profit, educational entities, and offices and departments for the County of El Paso, regardless of the nature of the service, the function they perform, or its corporate or entity structure.  Businesses must require employees and visitors to wear face coverings while on business premises, as described above.  However, gyms and exercise establishments are only required to mandate individuals inside the business establishment to wear face covering at all times except when an individual is actively engaging in exercise. 

The El Paso County Order went into effect June 21, 2020 and does not have a set expiration date.  El Paso County businesses were required to develop and implement the health and safety policy by June 21, 2020.  Failure to do so may result in a fine against the business not to exceed $500 for each violation.

Harris County

The Harris County Order imposes requirements similar to the common requirements outlined above.  But the Order clarifies that Harris County businesses may also implement other mitigating measures, and specifically cites the measures included in the Harris County Public Health Guidance document “Business Guidance for Mitigating the Spread”, which encourages businesses to maximize telecommuting, stagger start and end time, avoid meetings with more than ten people, and health checks, among other things. 

Harris County also issued a sample poster for businesses to display the health and safety policy requirements.  The sample poster is available here.

The Harris County Order went into effect June 22, 2020 and remains in effect through June 30, 2020, although it is likely that the Order will be extended.  Businesses have until June 27, 2020 to  develop and implement the health and safety policy to avoid fines.  Failure to develop and implement a health and safety policy by June 27, 2020 may result in a fine against the business not to exceed $1,000 for each violation. 

Hays County

The Hays County Order went into effect June 22, 2020 and expires July 20, 2020.   Hays County businesses were required to develop and implement the health and safety policy by June 22, 2020.  However, unlike other recent mask/face covering orders, the Hays County Order does not include potential fines for non-compliant businesses.  Instead, the Order generally provides that any peace officer or other person with lawful authority is authorized to enforce the provisions of the Hays County Order, in accordance with the limitations contained in the executive orders of Governor Abbott.

Hidalgo County

The Hidalgo County Order requires all commercial “Covered Services”, as enumerated in Hidalgo County’s Amended Emergency Order 20-008,[1] that are not listed by the U.S. Department of Homeland Security’s Cyber Security and Infrastructure Security Agency or religious services, and that provide goods and services directly to the public to implement a health and safety policy for employees and customers and to post the policy, as outlined above.  The Hidalgo County Order went into effect June 18, 2020 and continues until it is modified, rescinded superseded, or amended.  Hidalgo County businesses were required to develop and implement the health and safety policy by June 20, 2020 to avoid fines.  Failure to do so may result in a fine against the business of $1,000 per violation.

Travis County

The Travis County Order imposes requirements similar to the common requirements outlined at the beginning of this article.  The Order, however, clarifies that businesses may also implement other mitigating measures, and specifically cites the measures included in the Travis County Prevention Guidelines attached at Exhibit B of the Travis County Order.  The Order also allows businesses to implement policies for alternative methods of service for those unable to wear masks. 

Travis County issued a sample poster for businesses to display the health and safety policy requirements.  The sample poster is attached at Exhibit C of the Travis County Order.

The Travis County Order went into effect on June 18, 2020 and will continue through August 15, 2020.  However, businesses have until June 23, 2020 to develop and implement the health and safety policy to avoid fines.  Failure to develop and implement a health and safety policy by June 23, 2020 may result in a fine against the business not to exceed $1,000 for each violation.

 

[1] Amended Emergency Order 20-008 does not define “Covered Services” but the term likely means businesses reopened in accordance with Governor Abbott’s Executive Order GA-26.