(NOTE: Executive Order GA-21 was issued May 5, 2020 and expands the list of reopened services discussed below. We have discussed certain provisions of GA-21 related to schools in an updated post available here.)
On April 27, 2020, Governor Abbott issued Executive Order GA-18, allowing certain businesses to physically reopen at 25% capacity. Very little of GA-18 impacts schools in a new way, but as districts work to make decisions about graduation, prom, and other activities, it is useful to take a more in-depth look at the primary mandate contained in the order.
Schools are still ordered to remain closed to in-person classroom attendance by students and may not recommence before the end of the 2019-2020 school year. As in the previous order, “teachers and staff are encouraged to continue to work remotely from home if possible, but may return to schools to conduct remote video instruction, as well as perform administrative duties under the strict terms required by [TEA].” TEA’s guidelines for doing so are discussed here.
Executive Order GA-18, which will remain in effect until May 15th, reasserts the Governor’s previous mandate regarding in-person contact and adds additional guidance for individuals over 65:
[E]very person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and minimize in-person contact with people who are not in the same household. People over the age of 65, however, are strongly encouraged to stay at home as much as possible; to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days; and, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation. (All emphasis added)
The individual components of the first sentence above (underlined) are discussed below, including the extent to which gatherings may be allowed and what constitutes an essential or reopened service. Regardless of what may fall within the scope of that first sentence, people are still prohibited by GA-18 from “visiting bars, gyms, public swimming pools, interactive amusement venues such as bowling alleys and video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons.”
1. The Primary Mandate: Minimize Social Gatherings & In-Person Contact
GA-18 does not define social gathering, nor does it specify a certain number of people who would constitute an impermissible gathering. Previously, Governor Abbott banned gatherings of more than ten people, but that number was eliminated in GA-14 on March 31, 2020. GA-14 imposed increased social-distancing restrictions by limiting all gatherings of any size except as necessary to provide or obtain essential services. GA-18 reasserts this restriction, with certain adjustments to the list of excepted activities (discussed below). The current ban on social gatherings should therefore be read in conjunction with the requirement to “minimize in-person contact” with people who do not live with you.
Governor Abbott specifically notes that GA-18 does not prohibit people from accessing essential or reopened services or engaging in essential daily activities “so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.” GA-18 lists the following as examples of essential daily activities that may be performed with necessary precautions:
- Going to the grocery store or gas station;
- Providing or obtaining other essential or reopened services;
- Visiting parks;
- Hunting or fishing; or
- Engaging in physical activity like jogging, bicycling, or other outdoor sports.
2. The Exceptions: Essential Services & Reopened Services
Under the language of GA-18, the only exceptions to the Governor’s prohibition of social gatherings and in-person contact are those activities that are “necessary” to provide or obtain (1) essential services or (2) reopened services.
(a) What is an “Essential Service” under GA-18?
The previous order defined “essential services” as “everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0 [CISA Guidance 2.0], plus religious services conducted in churches, congregations, and houses of worship.” (Our discussion about what constitutes an “essential service” under Version 2.0 is available here.) Homeland Security issued updated guidance in the form of Version 3.0 on April 17th. Governor Abbott’s GA-18 incorporates everything listed in the new Version 3.0 into the definition of essential services.
While Version 3.0 adds several more pages to its list of those services deemed to be essential during the COVID-19 pandemic, most of the additions do not pertain to school operations. None of the critical services identified in Version 2.0 appear to have been eliminated in Version 3.0. There is still 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, including the following:
- 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[;]” and
- “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.”
Version 3.0 also adds the following services to the category of Healthcare and Public Health that may be relevant to at-home services provided by districts under IDEA (though IDEA is not specifically referenced):
- Healthcare providers such as nurses, physical therapists, speech therapists, occupational therapists, speech pathologists (all but speech therapists were included in Version 2.0);
- Human services providers, especially for at risk populations such as:
- Home delivered meal providers for older adults, people with disabilities, and others with chronic health conditions.
- Home-maker services for frail, homebound, older adults.
- Personal assistance services providers to support activities of daily living for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services.
- Home health providers who deliver healthcare services for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services.
(b) What is a “Reopened Service” under GA-18?
Under the Governor’s previous order, “reopened services” were any non-essential retail services that could be provided through pickup or delivery (retail to go). Under GA-18, the definition of “reopened services” is expanded to include the following:
- In-store retail services, for retail establishments operating at up to 25% occupancy.
- Dine-in restaurant services, for restaurants operating at up to 25% occupancy (but only those restaurants with less than 51% of gross receipts from alcohol); no valet services are allowed except for disabled parking.
- Movie theaters operating at up to 25% occupancy for any individual theater for any screening.
- Shopping malls operating at up to 25% occupancy of the mall, but food-court dining areas, play areas, and interactive displays and settings must remain closed.
- Museums and libraries operating at up to 25% occupancy (but local public museums and libraries can open only if permitted by local government). Any interactive functions or exhibits must remain closed, including child play areas.
- Services provided by an individual working alone in an office.
- Golf course operations.
- Local government operations, including county and municipal governmental operations relating to permitting, recordation, and document-filing services, as determined by the local government.
In counties with five or fewer cases of COVID-19, in-store retail, dine-in restaurant, movie theaters, shopping malls, museums, and libraries may open and operate at up to 50% total occupancy, provided the county has filed the required form with DSHS and is in compliance with its requirements.
As to these reopened services, Governor Abbott includes this warning:
Notwithstanding anything herein to the contrary, the governor may by proclamation identify any county or counties in which reopened services are thereafter prohibited, in the governor’s sole discretion, based on the governor’s determination in consultation with medical professionals that only essential services should be permitted in the county, including based on factors such as an increase in the transmission of COVID-l9 or in the amount of COVID-19-related hospitalizations or fatalities.
3. A Condition on the Exceptions
GA-18 states that, even when providing or obtaining essential or reopened services, “people and businesses should follow the minimum standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus, and should implement social distancing, work from home if possible, and practice good hygiene, environmental cleanliness, and sanitation.” Governor Abbott is also encouraging individuals to wear face coverings, but notes that civil or criminal penalties may not be imposed for failure to do so.
4. What’s the Impact of GA-18 in My County?
Governor Abbott expressly states in his order that GA-18 “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 or reopened services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list of essential services or the list or scope of reopened services as set forth in this executive order.”
Although the “but only to the extent” language makes it seem as though counties have some wiggle-room, the clauses that follow have the practical effect of eliminating that flexibility. Counties cannot restrict essential services or reopened services allowed under GA-18, and they are also now expressly prohibited from expanding the list or scope of such services. Additionally, counties cannot allow any gatherings that are prohibited under the order.
The Attorney General issued an informal opinion letter on April 20, 2020 to Commissioner Morath regarding whether local orders could prevent and restrict teachers and staff from accessing public school buildings to perform essential services. That letter explains that the Governor’s Executive Order supersedes any conflicting local order, and local officials cannot prohibit these essential services. (Note that the Attorney General was interpreting the previous order, GA-16, at the time; however, the reasoning still applies to the current order, GA-18.)
5. What About Proms & Graduations?
(NOTE: Our updated discussion about graduations is available here.)
Unfortunately, there is not yet a clear answer about how to handle proms and graduations. Proms and graduations are not expressly addressed in the language of GA-18. Traditional, in-person proms probably would not comply with the Governor’s current ban on gatherings and instructions to minimize in-person contact with individuals not in the same household.
Graduations will depend. Per TEA’s updated Guidance for 2020 Seniors, districts may conduct completely virtual graduation ceremonies without the need to obtain any approval from TEA or other authorities to do so. As for in-person ceremonies, TEA has indicated that it is working with public-health specialists and a superintendent task force to identify the circumstances under which in-person ceremonies may occur and will be releasing guidelines soon.
Notwithstanding any guidance from TEA or executive orders, existing contracts with venues still need to be consulted to determine the parties’ obligations and remedies with respect to cancellation and how government orders impact contractual duties.
If you have questions about the current Executive Order or your district’s contract with a prom or graduation venue, please let us know.