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March 2020

Texas Employment Law Update – Texas Municipalities Implement Shelter-in-Place Policy and Order Workers and Non-Essential Businesses to Stay Home

March 26, 2020;
Updated March 28, 2020 to reflect new guidance from the U.S. Department of Labor

Texas Governor Greg Abbott announced on March 22, 2020 that he would refrain from issuing a statewide shelter-in-place order amid the coronavirus pandemic and instead would leave the decision up to city and county leaders.  In the days that followed, numerous Texas cities and counties issued local versions of shelter-in-place orders that vary in length and substance. 

In this update, we will explore the critical details of each order, the differences between these orders, and what this means for Texas employers.

What the Orders Say – and Don’t Say

On March 22, 2020, Dallas County issued a “shelter in place” order, which took effect at 11:59 p.m. on Monday, March 23, 2020, and runs until April 3, 2020, unless extended.  The order generally requires Dallas County residents to remain at home except when performing Essential Activities, Essential Business, or Essential Governmental Functions (residents of shared dwellings may use common or shared outdoor space so long as they maintain a distance of at least six feet from any other person).

On March 23, 2020, San Antonio Mayor Ron Nirenberg and Bexar County (San Antonio) Judge Nelson Wolff similarly issued a “shelter in place” order.  On March 24, 2020, Bell County, Collin County, Denton County, El Paso County, Harris County, Hays County, Hunt County, McClennan County, Rockwall County, Tarrant County, Travis County and Williamson County issued their own orders, as did the cities of Austin, Dallas, El Paso and Waco.  Other counties and cities are expected to follow suit in the coming days.

With the exception of Collin County, discussed below, the Dallas County order serves as the model for the others.  The Orders provide:

Essential Activities for which residents may leave home include:

  • Activities or tasks essential to the health and safety of a resident or member of their family or household (e.g., obtaining medical supplies or medication, seeking health care, or obtaining supplies needed to work from home);
  • Obtaining necessary services or supplies for a resident or member of their family or household, or to deliver those services or supplies to others (e.g., obtaining food, household consumer products, pet food and supplies, and other "products necessary to maintain the safety, sanitation, and essential operation of residences);
  • Outdoor activities, as long as all involved maintain six feet of social distancing (e.g., walking, biking, hiking, or running);
  • Caring for a family member or pet in another household;
  • Performing work providing essential products and services at an Essential Business; and
  • Carrying out other activities specifically allowed in the Order.

Businesses other than Essential Businesses (as defined below) are ordered to cease “all activities at facilities located within the County,” although the Order clarifies that not-essential businesses may continue to allow employees and contractors to work from home.  In addition, Essential Businesses must “to the greatest extent possible” comply with a set of Social Distancing Guidelines available here.

The Orders defines Essential Businesses to include:

1.       Essential Healthcare Operations, including hospitals, clinics, dentists, pharmacies, and biotech companies, healthcare facilities, healthcare suppliers, mental health providers, substance abuse service providers, blood banks, medical research, laboratory services, or any related and/or ancillary healthcare services.”  Also exempted are home-based and residential care for seniors, adults, and children, as well as veterinary care and animal health and welfare services.  The Orders also ban “elective medical, surgical, and dental procedures” which “can be postponed or cancelled based on patient risk” considering the need to redirect resources to the COVID-19 response.  Notably, Governor Greg Abbott has issued a statewide ban that prohibits all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death,” excepting those procedures which can be “performed in accordance with the commonly accepted standard of clinical practice [and] would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”

2.       Essential Government Functions, including “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.” Those functions, however, must be performed in compliance with the Social Distancing Guidelines.

3.       Essential Critical Infrastructure activities, including the operation and maintenance of public works construction, residential and commercial construction, internet, and telecommunications systems, financial institutions, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, defense and national security-related operations, and essential manufacturing operations. All work by Essential Businesses must comply with the Social Distancing Guidelines.

4.       Essential Retail including grocery stores, warehouse stores, big-box stores, bodegas, liquor stores, gas stations and convenience stores, farmers’ markets that sell food products and household staples, farming, fishing, livestock cultivation, businesses that ship or deliver goods or services directly to residences, restaurants and other facilities that prepare and serve food for delivery or carry out, schools and other facilities that typically provide free services on a pick-up and take-away basis only, laundromats, dry cleaners, laundry service providers, gas stations, auto-supply, auto and bicycle repair, hardware stores, and businesses that supply products needed for people to work from home.

5.       Providers of Basic Necessities to Economically Disadvantaged Populations, defined as “[b]usinesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.”

6.       Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses, including trash and recycling collection and disposal, mail and shipping services, building cleaning and maintenance, warehouse/distribution and fulfillment, storage for essential businesses, funeral homes, crematoriums and cemeteries, plumbers, electricians, exterminators, “other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and Essential Businesses,” professional services including legal and accounting services as needed to support compliance with other legally mandated activities, and businesses that supply other Essential Businesses with supplies needed to operate.

7.       News Media including newspapers, television, radio, and “other media services.”

8.       Childcare Services defined as “[c]hildcare facilities providing services that enable employees exempted in this Order to work as permitted.”

The Orders also provide that "[r]eligious and worship services may only be provided by video and teleconference," and requires that in-person preparations for such services be limited to 10 people who must adhere to the Social Distancing Guidelines.  The Orders also carry forward several measures already in place across the counties, including a suspension of eviction hearings and writs of possession for 60 days.

It is important to note that Collin County, in a diversion from all other Texas counties and cities issuing shelter in place orders, has deemed all businesses “essential businesses.”  Collin County Judge Chris Hill has stated that if businesses are able to stay open while staying within the governor’s guidelines of no more than 10 people, then they should stay open for business.

Period of Enforcement

As illustrated below, the effective period for the shelter in place orders varies by city and county. Importantly, individuals are expected to follow the orders for their county of residence, not their county of employment, with the exception of Cameron County, which has ordered: “all employees of Cameron County who do not reside in Cameron County are ORDERED to shelter in their place of residence.”  For example, a Dallas County resident who is employed in Collin County must follow the restrictions set forth in the Dallas County Order until April 3, 2020 although Collin County’s Order differs in substance and expires on March 31.

County/City

Begins

Expires

Bell County

March 23, 2020

April 3, 2020

Bexar County/City of San Antonio

March 24, 2020

April 9, 2020

Brazoria County

March 26, 2020

April 3, 2020

Brazos County

March 24, 2020

April 7, 2020

Burnet County

March 25, 2020

Until further notice

Cameron County

March 25, 2020

April 8, 2020

Castro County

March 24, 2020

April 3, 2020

Chambers County

March 24, 2020

April 3, 2020

Collin County

March 24, 2020

March 31, 2020

City of Corsicana

March 25, 2020

April 8, 2020

Dallas County/City of Dallas

March 23, 2020

April 3, 2020

Denton County

March 25, 2020

April 1, 2020

Ellis County

March 25, 2020

April 15, 2020

El Paso County/City of El Paso

March 24, 2020

Until further notice

Fort Bend County

March 24, 2020

April 3, 2020

Galveston County

March 24, 2020

April 3, 2020

Gregg County

March 26, 2020

April 9, 2020

Harris County

March 24, 2020

April 3, 2020

Hays County

March 26, 2020

April 10, 2020

Hidalgo County

March 22, 2020

April 5, 2020

City of Hideaway

March 25, 2020

April 1, 2020

Hood County

March 25, 2020

April 7, 2020

Hunt County

March 24, 2020

April 3, 2020

Kaufman County

March 25, 2020

April 8, 2020

City of Lampasas

March 23, 2020

April 3, 2020

Liberty County

March 24, 2020

April 3, 2020

City of Longview

March 26, 2020

April 9, 2020

McLennan County/Waco

March 23, 2020

April 7, 2020

Milam County

March 23, 2020

May 4, 2020

City of New Braunfels

March 25, 2020

Until further notice

Navarro County

March 25, 2020

April 8, 2020

Nueces County

March 26, 2020

April 8, 2020

Parker County

March 23, 2020

April 22, 2020

Polk County

March 25, 2020

April 3, 2020

City of Richardson

March 24, 2020

April 30, 2020

Robertson County

March 25, 2020

April 8, 2020

Rockwall County

March 24, 2020

April 15, 2020

San Jacinto County

March 25, 2020

April 19, 2020

Stephens County

March 23, 2020

Until further notice

Tarrant County/City of Fort Worth

March 24, 2020

April 3, 2020

City of Teague

March 25, 2020

April 3, 2020

Travis County/City of Austin

March 24, 2020

April 13, 2020

Val Verde County

March 23, 2020

April 3, 2020

City of Van

March 27, 2020

April 3, 2020

Williamson County

March 24, 2020

April 13, 2020

 

Changes to Your Workforce

Whether or not your business is deemed “essential,” you may be considering changes to your workforce for employee safety and in response to the undeniable economic impact of the pandemic. Such changes may include furloughing employees, laying off employees, or reducing an employees’ rate of pay/hours.

We suggest you consider all available options carefully before making any decision, and refer to the following chart for an overview, with details below the chart. Whether notice is legally required as detailed below, we recommend all employers provide written notice to employees of their decision, including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future. Goodwill toward your employees will go a long way in rebuilding the business.

Option

Description

 

Important Information

Furlough

§  Temporary suspension of employment during which employees do not receive wages

§  Those on furlough remain employed

 

§  Advise employees they must not work during the furlough period and employer should consider employer maintaining control over employer issued mobile devices and limiting or cutting off employee email access.

§  Employee receipt of continuation of health benefits dependent on health insurance policies, plan documents and other policies or agreements with employees. 

§  Employer may restrict the use of vacation/PTO during furlough.

§  Employee is entitled to federal sick pay under the Families First Coronavirus Response Act (FFCRA) if employer has 500 or fewer employees.

§  See below regarding more detail on the FFCRA.

§  Employees may receive Unemployment Compensation Insurance.

Layoff/

Termination

A layoff is the removal of an employee from the workforce, without any guarantee of returning to work.

 

A termination is a complete and permanent separation of employment.

 

§   Notice required if employer is subject to federal WARN Act.

§   Final pay due no later than the business day next succeeding the date of discharge.

§  When an employee is laid off, the employer shall pay in full all wages no later than the next regular pay day, though it’s customary to pay on the last day.

§   Employer need not pay out accrued sick leave at time of termination or layoff.

§   If you layoff or terminate a salaried employee, you need only pay them through the final day of work (unless contractually obligated otherwise).

§   Provide timely notice regarding COBRA benefits. 

Reduction in Pay

Reducing an employee’s hourly rate or prospective salary

 

§   Ensure you pay hourly, non-exempt, non-tipped employees minimum wage: $7.25 per hour

§ Reductions in the predetermined salary of an employee who is exempt could cause a loss of the exemption. An employee whose salary is reduced needs to be paid at least the minimum wage and overtime pay required for non-exempt employees.     

An employer is not prohibited from prospectively reducing the predetermined salary amount to be paid regularly to an exempt employee during a business or economic slowdown, provided the change is bona fide and not used as a device to evade the salary basis requirements. In such cases the employee must still receive a salary basis of at least the minimum amount to maintain the exemption- at least $684 per week in Texas.

Reduction in Hours

Reduce hours for non-exempt employees and pay only the hours worked.

 

§   Texas has an alternative to laying off employees if business has slowed to COVID-19.  The Texas Workforce Commission offers a Shared Work program which is a smart alternative to a layoff.  The program allows employers to reduce the hours of full-time employees by between 10% but not more than 40%, while their workers collect partial unemployment benefits to replace a portion of their lost wages in proportion to the reduction In hours.

     * All employers with 2 or more F/T or P/T employees can participate in the program, which is not designed for seasonal operations.  To qualify, the business’ reduction of work cannot be less than 10% or more than 40%.

§   Take care not to reduce hours in a way that appears discriminatory – such as only for higher paid (and generally older) workers.

§   Employees may be receive Unemployment Compensation Insurance and workers who do not work may be entitled to unemployment benefits.

Work From Home

An employee is permitted to work remotely (out of the office), generally by accessing employer files through a virtual desktop.

 

 

§   Employers should look to their employee handbook and company policies and practices regarding reimbursement for such expenses as home internet, cell phone usage, printer ink, paper, and other relevant supplies. If required to pay, demand proof of incurred expenses.

§   Send clear directives to non-exempt employees to take and record rest breaks and meal periods.

§   The Dallas County ordinance expressly permits non-essential employees to work from home, regardless of whether an essential or non-essential business.


What Should You Do?

With many employers facing the difficult decision of whether to furlough or lay off employees, the critical question is the expense associated with each choice.  If you have a generous vacation policy, and many tenured employees with banks of hours, it may be more expensive to lay off employees because you would be required to pay out all earned vacation. If you furlough employees, you must maintain benefits and pay sick leave as requested, which includes federal and/or state. Your business also may be required to pay sick leave under the new federal law. You may consider layoff or furlough of some employees and reduction in hourly pay or salary for others.

Other Laws to Keep in Mind

Texas Unemployment Insurance

Work-search requirements and the “waiting week” have been waived for unemployment claimants.  Unemployment benefits insurance much more efficient and streamlined: employees may go to https://twc.texas.gov/ to file on their person computer, tablet or Smartphone.

Texas Shared Work Program

There is an alternative to laying off employees if business has slowed down as a result of COVID-19.  The Texas Workforce Commission offers a Shared Work program, which is a smart alternative to a layoff.  The program allows employers to reduce the hours of full-time employees by as much as forty percent, while their workers collect partial unemployment benefits to replace a portion of their lost wages.

All employers with two or more full-time or permanent part-time employees can participate in the program, which is not designed for seasonal separations.  To qualify, the business’ reduction of work cannot be less than ten percent or more than forty percent, and the reduction must affect at least ten percent of the employees in a unit.  Additional details are available here.

New Federal Sick Leave Law

The Families First Coronavirus Response Act ("FFCRA") becomes effective April 1, 2020.

  • Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:
  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  (This includes any government order directing people to remain at home unless they work for an essential business);
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
  5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.
  • If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
     
  • Intermittent sick leave is permitted with the consent of the employer (it is not required).
     
  • If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
     
  • Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
     
  • Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
     
  • Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
     
  • Employers must require documentation in support of the reason for leave and include:  
    • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
    • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above). 
       
  • If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay – Employees must be paid based on their required compensation as follows:

  • Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
  • Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act 

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

  • The EFMLE applies under the following circumstances:
  1. The EFMLE applies to employers with fewer than 500 employees (see below);
  2. Employees must be employed at least 30 calendar days at the time leave is requested;
  3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
  4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
  5. The employee must be restored to their position upon return from leave.
  • An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
     
  • Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
     
  • If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
     
  • If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
     
  • Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL. 

The factors are not evaluated as stand-alone.  The entire relationship is to be reviewed in its totality. 

Visit our COVID-19 Hub for ongoing updates.

COVID-19 Task Force

Nathan D. Pearman
Kirstie M. Simmerman



COVID-19 Task Force
Employment Law