In May 2020, Governor Greg Abbott announced a three-phase plan to reopen the State of Texas as COVID-19 cases in the state began leveling off.  However, in June 2020, Governor Abbott paused his plan due to an increase in the number of reported cases in the state.  On September 17, 2020, the Governor hosted a press conference at which he announced the resumption of his plan and the relaxing of many COVID-19-related restrictions by issuing two new executive orders: GA-30 and GA-31.

Executive Order GA-30: most businesses may operate at 50% capacity or higher

With GA-30, Governor Abbott declared that the new standard for business operations is 50% capacity.  Some exceptions to this rule exist, which may increase or decrease an establishment’s allowed capacity.

The following establishments may operate at 100% capacity:

• “Essential Services” as defined by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) in its guidance on the Essential Critical Infrastructure Workforce, Version 4.0. That guidance document can be found here.
• Religious services of all kinds, including those conducted inside houses of worship;
• Local government operations;
• Child-care services;
• Youth camps, including all summer camps and other daytime and overnight camps for youth;
• Recreational sports programs for youths and adults;
• Any public or private schools, including institutions of higher education; and
• Drive in concerts, movies, and similar events that facilitate social distancing and generally require spectators to remain in their vehicles.

The following establishments may also operate at 100% capacity if they can operate with at least six feet of social distancing between work stations.  If this is not possible, these businesses must operate at 50% capacity:

• Cosmetology salons, hair salons, barber shops, nail salons, and the like;
• Massage establishments; and
• Other personal care and beauty services including tanning salons, tattoo and piercing studios, hair removal services, and hair loss and growth services.

The following establishments may operate at 75% of their stated capacity unless they are in an area of high hospitalizations, in which case they must operate at 50% capacity.  A current list of areas of high hospitalizations can be found here.

• In-store retail businesses;
• Dine-in restaurants who gain less than 51% of their gross receipts from the sale of alcohol and whose customers only eat or drink while seated;
• Office buildings;
• Manufacturers;
• Museums and libraries; and
• Gyms and exercise facilities and classes.

Certain establishments and activities remain prohibited or must remain closed.  Those include:

• Outdoor gatherings in excess of 10 people, except those allowed by the above provisions (e.g. worship services, recreational programs) or those for which the Mayor or County Judge approves such a gathering and it is otherwise consistent with the remainder of GA-30;
• Bars, though they may continue to utilize drive-thru, pickup, and delivery options for food and alcohol as allowed by Texas Alcoholic Beverage Commission (TABC); and
• Commercial rafting or tubing services.

Certain Texas counties have attested to the Texas Department of State Health Services (DSHS) that minimal cases of COVID-19 exist within the county.  Businesses in such counties which would normally be subject to the 50% capacity rule may operate at 75% capacity.  Currently the threshold for this designation is five (5) total COVID-19 cases in the county.  DSHS can provide current information on each county’s status.

Other important provisions in this order include:

• Facilities with retractable roofs are considered indoor facilities even if the roof is open;
• Employees are not factored into the capacity percentage count, except for manufacturing and office workers;
• People over the age of 65 are still encouraged to remain quarantined to the extent possible; and
• All previous executive orders relating to COVID-19 are amended to remove jail as a possible penalty for violation of any executive order relating to COVID-19.

If your business or establishment does not appear on this list as an exception to the 50% capacity rule, it is likely that you are limited to 50% capacity until further notice.

The full text of GA-30 can be found here.

Executive Order GA-31: relaxing restrictions on certain medical facilities

Executive Order GA-31 provides that the prohibition on elective medical procedures is limited to medical facilities in areas of high hospitalization.  Those areas can be found here.  In other words, facilities not located in high hospitalization areas may resume elective procedures.  However, even facilities located in these high hospitalization areas may perform elective procedures if they are performed in accordance with commonly accepted standards of clinical practice and do not deplete resources needed to treat COVID-19 patients.

Additionally, all hospitals licensed under Chapter 241 of the Texas Health & Safety Code must reserve at least 10% of their capacity for the treatment of COVID-19 patients.  However, in the case of hospital networks comprised of more than one facility, each facility does not need to reserve 10% of its capacity, as long as the hospital network reserves 10% of its capacity across all facilities located in the same Trauma Service Area.

The full text of GA-31 can be found here.

New Rules Governing Nursing Homes and Long-term Care Facilities

Finally, Governor Abbott announced new visitation rules applicable to nursing homes, assisted living facilities, intermediate care facilities, home and community-based service providers, and inpatient hospice, which go into effect on September 24, 2020.  Under these new rules, residents at these facilities may designate two essential caregivers—including family members—who will be provided necessary training to allow them to go into these facilities for scheduled visits, including into resident’s rooms.  These caregivers will not be required to adhere to social distancing while in a resident’s room, but only one caregiver may visit at a time.

For persons not designated as essential caregivers, these facilities may begin to allow the scheduling of outdoor no-contact visits, open window visits, or indoor visits with the use of plexiglass safety barriers to prevent the potential spread of COVID-19.

More information about the Governor’s press conference and announcements can be found here.