On March 2, 2021, Governor Abbott issued Executive Order GA-34, which goes into effect on March 10, 2021. The Executive Order will lift all state and local mask mandates and operating limits for all but a few Texas businesses. How does this order affect Texas employers’ obligations? Read below to find out more.
Executive Order GA-34
From March 10, 2021 forward, Executive Order GA-34 eliminates all state and local mask mandates and operating limits for businesses in counties that are not in an “area with high hospitalization.”
An “area with high hospitalization” is defined to mean a Trauma Service Area that has at least seven consecutive days in which the number of COVID-19 hospitalized patients exceed 15% of total hospital capacity. Such a Trauma Service Area remains an “area with high hospitalization” until it has seven consecutive days in which the number of COVID-19 hospitalized patients is 15% or less of total hospital capacity. A list of areas with high hospitalization will be maintained at www.dshs.texas.gov/ga3031. As of the date of this writing, such areas comprise Culberson County, El Paso County, and Hudspeth County.
County judges in areas with high hospitalization may impose operating limits on businesses of 50% or greater of total occupancy, except for schools and child-care services. Although the order prohibits counties from imposing penalties for not wearing a face mask, legally authorized officials (e.g., police officers) may remove people who are not wearing face masks, at the request of the business establishment or property owner.
Taking all of this together, most Texas employers (those outside of “areas with high hospitalization”) will not be required—under Texas law or local law—to require customers or employees to wear masks, or to limit the operating capacity of their businesses.
But that said, should Texas employers change their COVID safety practices in light of Executive Order GA-34?
Employers’ Obligations to Maintain a Safe Workplace
Under the federal Occupational Safety and Health Act, most employers are required to maintain a safe workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Although the U.S. Occupational Safety and Health Administration (OSHA) has not yet issued legally enforceable safety standards, it has issued guidance recommending that employers adopt COVID-19 Prevention Programs, which include the following elements:
1. Assign a workplace coordinator who will be responsible for COVID-19 issues for the employer.
2. Identify how workers might be exposed to COVID-19 at work. This includes identifying when workers might be in close contact with others who could be infected, and when workers might touch frequently touched surfaces.
3. Identify measures to limit the spread of COVID-19 in the workplace. Examples include:
a. Separating and sending infected (or potentially infected) workers home.
b. Implementing physical distancing in all work areas (see here for a sample poster).
c. Installing barriers, such as plexiglass windows, especially if a workstation cannot be moved to be more than six feet away from other people.
d. Requiring face masks (see here, here, and here for sample posters).
e. Improving ventilation.
f. Using applicable personal protective equipment (PPE).
g. Providing supplies necessary for good hygiene, such as tissues, no-touch trash cans, soap and water and/or hand sanitizer, and posters on handwashing (for example, here and here).
h. Routinely cleaning and disinfecting the workplace.
4. Consider reasonable accommodations if requested from older workers or workers with serious medical conditions, to protect them from the risk of contracting COVID-19.
5. Ask workers to report COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace, without fear of retaliation.
6. Educate workers on your business’s COVID-19 policies and procedures.
7. Instruct workers who are infected or potentially infected to stay home and quarantine. Follow CDC guidelines for workers who have or likely have COVID-19, or who have been exposed to COVID-19.
8. Minimize the negative impact of quarantine and isolation on workers. This may include remote work if possible, or allowing workers to use paid sick leave.
9. Isolate workers who show symptoms at work, send them home, and encourage them to seek medical attention.
10. Clean and disinfect the workplace after people with suspected or confirmed COVID-19 have been in the facility.
11. Provide guidance on COVID-19 screening and testing.
12. Record and report any COVID-19 infections and deaths.
13. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
14. When COVID-19 vaccines become available, make them available at no cost to workers.
15. Do not distinguish between vaccinated and non-vaccinated workers.
In short, irrespective of Executive Order GA-34, the federal government still recommends that employers require face masks, implement social–distancing procedures and hygiene protocols, and take other measures to fulfill their general duty to maintain a safe workplace. While the Texas state government may be doing away with the prior, state-issued mask requirement, Texas employers should consider continuing to require masks (for employees, vendors, customers, and others), social distancing, and other safety precautions, as recommended by OSHA and the CDC.
If you have questions about implementing a COVID-19 Prevention Program, of if you need tips to stay COVID-19 compliant, please reach out to your legal counsel for more information.
 Religious services are also exempted.