Texas Governor Greg Abbott issued Executive Order GA-14 on March 31, directing every person in Texas to minimize social gatherings and in-person contact with people who do not live in the same household except where necessary to provide or obtain essential services.
Executive Order GA-14 defines essential services to consist of (1) everything listed by the Cybersecurity and Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response Version 2.0 (CISA Guidance 2.0); (2) other services added to this list with the approval of the Texas Division of Emergency Management (TDEM); and (3) religious services conducted in churches, congregations, and houses of worship (to the extent such services cannot be conducted remotely).
The CISA Guidance 2.0 classifies 17 sectors as employing essential critical infrastructure workers:
Workers and businesses that qualify under CISA Guidance 2.0 will be considered exempt providers of essential services under Executive Order GA-14.
Notably, workers and business that fall within the essential services category are also automatically exempt from the travel-related quarantine requirements established by Texas Executive Order GA-11 (and Governor Abbott’s related proclamation) and Texas Executive Order GA-12, without the need to apply for an exemption from TDEM.
Executive Order GA-14 expressly supersedes any conflicting order issued by local officials in response to the COVID-19 pandemic, to the extent that such local order restricts essential services allowed by Executive Order GA-14 or permits gatherings prohibited by Executive Order GA-14. Local officials may continue to enforce local restrictions as long as such local restrictions are consistent with Executive Order GA-14.
Prior to the issuance of Executive Order GA-14, many Texas counties implemented orders with their own definitions of “essential businesses,” and exempted businesses considered “essential” from mandated closures.
Some counties entirely deferred to CISA Guidance 2.0 in their definitions, and some incorporated businesses recognized under CISA Guidance 2.0 as essential into their definitions as a type of essential business. Others defined essential businesses independently, without reference to CISA Guidance 2.0. Local officials must now reconcile their definitions of essential businesses with Executive Order GA-14.
A business previously exempt under the governing county's definition of essential businesses that qualifies under CISA Guidance 2.0 as essential will remain exempt from closure. A business previously exempt under the governing county's definition that does not qualify under CISA Guidance 2.0 as essential is no longer exempt, and will likely need to close to comply with Executive Order GA-14.
Businesses that do not qualify as an exempt essential service provider under Executive Order GA-14 can submit a request for a determination from TDEM to be included within the exemption. In submitting such a request, a business is required to assert that it is in the best interests of the State of Texas to have such business’s workforce continue at full capacity in order to properly respond to the COVID-19 pandemic.
Those businesses that are exempt from closure are still required to adhere to the guidelines from the president and the CDC by practicing good hygiene, environmental cleanliness, and sanitation; implementing social distancing; and working from home if possible. Moreover, Executive Order GA-14 further directs that all business services are to be provided through remote teleworking from home unless they are essential services that cannot be provided through remote teleworking.
Executive Order GA-14 takes effect at 12:01 am on April 2, 2020 and currently remains in effect through April 30, 2020.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Dallas
Janice Z. Davis
David I. Monteiro
Lauren A. West
Houston
Gregory N. Etzel
David J. Levy
Stefanie R. Moll
Michelle Pector
Sydney Reed
Ian A. Wright