State and local governments across the nation have applied varying approaches to address the question of what constitutes an essential business during the COVID-19 pandemic.
On March 19, 2020, Governor Abbott issued Executive Order GA-08, banning social gatherings in groups of more than ten people. The March 19th Order stated that government entities and businesses would continue providing “essential services” but did not define what services were deemed to be essential.
On March 28, 2020, in an effort to assist state and local governments, the U.S. Department of Homeland Security’s Critical Infrastructure Security Agency issued its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0 (“CISA Guidance”), which provides an advisory list of critical-infrastructure sectors, workers, and functions that should continue during the COVID-19 response. The next day, based on the advice of medical experts, President Trump announced that restrictive social distancing guidelines should extend through April 30, 2020.
Following that announcement, Governor Abbott issued Executive Order GA-14 on March 31, 2020, which supersedes Executive Order GA-08 and will remain in effect until April 30th absent further action by the Governor. The March 31st Order mandates that “every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gatherings and minimize in-person contact with people who are not in the same household.” Schools are ordered to remain closed to “in-person classroom attendance” and must not reopen before May 4, 2020.
The March 31st Order further states that, “[i]n providing or obtaining essential services, people and businesses should follow 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.” With respect to that last point, “all services should be provided through remote telework from home unless they are essential services that cannot be provided through remote telework.”
Order GA-14 defines “essential services” as “everything listed by the U.S. Department of Homeland Security in its [CISA Guidance], plus religious services conducted in churches, congregations, and houses of worship.” Although the CISA Guidance itself states that the list is advisory in nature, the list is now a state directive by virtue of Governor Abbott’s Order. There is not a specific category in the Guidance devoted to schools or school-district operations; however, many aspects of district operations are identified in other industry categories. The following is a bullet-point summary of the CISA Guidance as it pertains to the operation of schools:
- The following are included within the category of “Other Community- or Government-Based Operations and Essential Functions”:
- “Educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions.”
- “Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC) . . . .”
- “Workers who maintain digital systems infrastructure supporting other critical government operations.”
- “Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID 19 relief efforts.”
- Additional aspects of school-district operations can be found in other categories of the CISA Guidance pertaining to food service, transportation and logistics, communications and information technology, financial services, and hygiene products and services:
- “Government, private, and non-governmental organizations’ workers essential for food assistance programs (including school lunch programs) . . . .”
- “[Transportation] Workers supporting the distribution of food . . . .”
- “Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, . . . .”
- “Workers supporting communications systems and information technology—and work from home solutions—used by law enforcement, . . . education, and other critical industries and businesses.”
- “Employees required in person to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.”
- “Workers who are needed to provide, process and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement; . . . .”
- “Workers who support financial operations . . . , such as those . . . providing accounting services.”
- “Workers providing disinfection services, for all essential facilities and modes of transportation, and supporting the sanitation of all food manufacturing processes and operations from wholesale to retail.”
- “Support required for continuity of services, including commercial disinfectant services, janitorial/cleaning personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line employees.”
Under Governor Abbott’s March 31st Executive Order, other essential services may be added to the list with the approval of the Texas Division of Emergency Management.
Importantly, Governor Abbott expressly stated that his Order “shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order.” In other words, a county may adopt a broader list of essential services, but it may not allow gatherings Governor Abbott has prohibited. To the latter point, recall the Order’s primary mandate: “[E]very person in Texas shall, except where necessary to provide or obtain essential services, minimize social gatherings and minimize in-person contact with people who are not in the same household.”
Failure to comply with executive orders issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement.