Reopening the Economy: Part 1
By Preston W. Rose
McGuire, Craddock & Strother, P.C.
April 30, 2020
With some areas in the United States starting to see gradual decreases in hospitalizations and other coronavirus (“COVID”) statistics, many business owners are starting to wonder how the economy will start reopening after government mandated restrictions begin to ease. This article will provide a general overview of the various levels of government guidance: starting with the federal guidance, then addressing the guidance released by Texas, and lastly summarizing the guidance from Dallas County. practical tips and advice for employers, please look for the firm’s companion article to be published later this week, “What Employers Need to Know About Reopening.” For many business owners and employees, even once the economy has been “reopened,” it may be a while before it is business as usual.
On April 16, 2020, President Donald Trump announced a phased plan for reopening the United States. The plan proposes a state and regional approach, recognizing that certain parts of the country and even separate areas within states will need to be reopened on different timelines to account for local circumstances. The federal guidelines provide a data-driven, three-phased approach that gradually becomes less restrictive. Before a state or region begins the first phase of reopening, the plan recommends that three milestones should be met: (1) there should be a downward trajectory of influenza-like illnesses and COVID-like cases reported within a 14-day period; (2) then, over a subsequent 14-day period, there should be either a downward trajectory of documented cases or a downward trajectory of positive tests as a percentage of total tests; and (3) healthcare facilities should be able to treat all patients without “crisis care,” and a testing program should exist to test at-risk healthcare workers. The same milestones should be met again before the state or region progresses to subsequent phases. The timelines listed below provide for the fastest progression possible through the phases from the current date, but actual progression may, and likely will be, much slower. States or regions that experience any resurgence in COVID cases will not advance to the next phase, unless such milestones are met, and may return to more restrictive phases at the discretion of local and state governments.
Each phase builds on the prior phase, allowing more economic activity. The federal milestones should be met before moving to the next phase.
Phase One: 0 – 2 weeks
- Gatherings of more than 10 should be avoided unless precautionary measures are observed; still maintain physical distancing
- Limit non-essential travel
- Telework encouraged; if returning to work, return in phases and keep common areas closed
- Special accommodations for at-risk employees strongly suggested
- Schools and organized youth activities that are currently closed should remain closed
- Visits to senior living and hospital facilities still prohibited
- Large venues: sit-down dining, sporting venues, movie theaters, places of worship, etc., can reopen with strict physical distancing rules
- Elective surgeries at outpatient facilities can resume
- Gyms can open with strict physical distancing and sanitation protocols
- Bars should remain closed
Phase Two: 2 – 4 weeks
- Gatherings of more than 50 should be avoided unless precautionary measures are observed; still maintain physical distancing
- Telework continued to be encouraged; common areas continue to be closed and moderate social distancing should be enforced
- Special accommodations for at-risk employees still strongly suggested
- Return of non-essential travel
- Schools and organized youth activities can reopen
- Visits to senior living and hospital facilities still prohibited
- Large venues: sit-down dining, sporting venues, movie theaters, places of worship, etc., can operate with moderate physical distancing rules
- Elective surgeries at in-patient facilities can resume, in addition to the continued operation of outpatient facilities
- Gyms can continue to operate under the same rules
- Bars may reopen with limited, standing-room capacity
Phase Three: 4 – 6 weeks
- Vulnerable individuals can resume public interactions, but should practice physical distancing
- Resume unrestricted staffing of worksites
- Visits to senior living and hospital facilities can resume
- Large venues: sit-down dining, sporting venues, movie theaters, places of worship, etc., can operate with limited physical distancing rules
- Gyms can remain open if they follow proper sanitation guidelines
- Bars may add additional standing-room capacity
While the federal guidelines provide a high-level plan for states to reopen their economies, the guidelines leave substantial leeway for state and local governments to tailor the approach to conditions on the ground as may be necessary. The next section will explore guidance the State of Texas has released thus far.
On April 27, 2020, Texas Governor Greg Abbott released his plan to reopen Texas. The plan, coordinated in conjunction with health experts, seeks to reopen the Texas economy as fast as possible while maintaining public safety. The State plan will guide Texas’ path forward with the Texas stay-at-home order expiring on April 30. Before issuing the plan, Governor Abbott issued several Executive Orders that relaxed restrictions on things such as certain elective surgeries, non-essential retail stores capable of operating as “retail to-go,” and places of worship, in addition to creating the “Governor’s Strike Force to Open Texas.”
The State plan builds on the federal phased plan and provides for the opening of the Texas economy in phases based on recommendations from health experts and available data. The State plan acknowledges that the reopening of stores and business must be done gradually and can be reversed if health circumstances require. Phase One is slated to start on May 1, and last until May 15, but is subject to further extension. Phase One not only allows the essential services to continue operating unaffected, but also carves out new non-essential businesses that may reopen, subject to certain limitations and conditions. The main features of Phase One are listed below. For all of the details, including industry-specific checklists for patrons and establishments, please see the full report at the link provided in footnote 2.
Texas Phase One (later phases to be determined):
- Except for when necessary to provide or receive essential services and reopened services, Texans should avoid contact with others and continue following social distancing measures
- “Essential services” continue to be those listed by the U.S. Department of Homeland Security, with the addition of religious services
- In addition to essential services, the following services may reopen:
• Retail to-go services (i.e., pickup, delivery, etc.)
• In-store retail services – 25 percent occupancy permitted
• Dine-in restaurant services – 25 percent occupancy permitted
• Note: Establishments with 51 percent or more of gross receipts from alcohol sales are not eligible to be reopened
• Movie theaters – 25 percent occupancy per individual theater permitted
• Shopping malls – 25 percent occupancy permitted
• Note: Food courts, play areas, and interactive displays to remain closed
• Museums and libraries – 25 percent occupancy permitted
• Note: Unlike other establishments, local authorities have the last say on whether local public museums and local public libraries are permitted to open
• Rural County Exception – 50 percent occupancy permitted for all of the services listed above, if a qualifying county registers with the Texas Department of State Health Services and has 5 or fewer confirmed COVID cases
• Note: there are ongoing requirements that counties must meet to remain eligible for the special rules
• Sole proprietors working in an office alone
• Golf courses
• Outdoor sports in groups of less than four people, provided proper health protocols can be followed
• Local government operations
- Services/activities EXCLUDED that remain CLOSED or PROHIBITED:
• Bars, gyms, public swimming pools, arcades, bowling alleys, massage establishments, tattoo and piercing studios, and cosmetology salons
• Visits to senior living centers, nursing homes, and similar establishments are still prohibited
• Students still not allowed to return to schools
• Note: Camps and barbershops are not listed on the reopened list and will remain closed subject to further guidance
The State guidelines preempt inconsistent local guidelines, but do not prevent local governments from enforcing restrictions that are consistent with the State guidance. A good example of this is how certain counties, primarily large counties, have mandated nose and mouth coverings for people in public places. While the State guidelines do not have a similar mandate, the guidelines do not prevent such local measures, though the State bars fines or imprisonment for violations of such local mask requirements. In the coming weeks, Texans can expect further guidance from the State with increased openings possible if the State does not see a rebound in COVID cases. The latest Dallas County order is summarized below.
- Services/activities EXCLUDED that remain CLOSED or PROHIBITED:
On April 21, Dallas County Commissioners voted to extend Dallas’ “Safer-at-Home” order until May 15. This means that businesses should keep in mind both the protocols established by the Dallas County Order and the guidance from Governor Abbott’s plan when creating a strategy for resuming business. In a press release following Governor Abbott’s proposal of his plan to reopen Texas, Dallas County Judge Clay Jenkins indicated that he would reserve comment until Dallas County Health and Human Services Director Dr. Philip Huang and local physician leaders had carefully reviewed the specifics of the plan, but expressed concern that certain measures in the State plan deviate from the advice of public health experts. Judge Jenkins will likely continue providing guidance on distancing and protective measures for Dallas County residents as businesses are gradually reopened under the State plan. In the event the Dallas County “Safer-at-Home” order does conflict with the State plan, the State plan will supersede. Dallas County is likely to reissue a follow-up order in light of the new State plan.
For industry-specific guidance, please review the Dallas County “Safer-at-Home” order, but in general, the guidelines are as follows:
• All non-essential services and services not reopened by the State are to remain closed, other than “minimum basic operations”
• Limit non-essential travel
• Those businesses or services that do reopen still must practice social distancing to the extent possible
• The number of customers in stores/businesses should be limited
• Retail to-go purchases from reopened retail locations should be placed in the backseat or trunk, if possible
• Employees and customers should wear masks at all times
• Employees should take their temperature before coming into work
• If any symptoms of fever are present, the employee may not go to work
• Once equipment becomes available, employers should take employees’ and contractors’ temperatures, sending home anyone who has a fever
• Employers must provide soap and water for hand washing or hand sanitizer
• Employers should allow non-essential employees to work from home when possible
While it may take some time for the economy to begin to reopen, with the recent guidance issued at the federal, state, and local levels, non-essential businesses that have been closed are beginning to see a path to reopening. As this guidance continues to evolve as we move through the various phases outlined by the federal, state, and local governments, MCS will provide updates. For more information or for advice on whether and how a specific business may reopen, please contact Preston W. Rose at firstname.lastname@example.org.
This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
The Governor’s Report to Open Texas, can be found at: https://gov.texas.gov/uploads/files/organization/opentexas/OpenTexas-Report.pdf.
Executive Order No. GA-15 can be found at: https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-15.pdf.
Executive Order No. GA-16 can be found at: https://gov.texas.gov/uploads/files/press/EO-GA-16_Opening_Texas_COVID-19_FINAL_04-17-2020.pdf.
Executive Order No. GA-17 can be found at: https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-17.pdf.
Executive Order No. GA-18 can be found at: https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-18.pdf.
Find the April 23 Order here: https://www.dallascounty.org/Assets/uploads/docs/covid-19/orders-media/042320-DallasCountyOrder.pdf
Find Clay Jenkins’ statement here: https://twitter.com/JudgeClayJ/status/1254961478857351170/photo/1.