Dallas County Judge Jenkins Issues Stay-at-Home Order Through April 30, 2020

On April 3, 2020, Dallas County Judge Clay Jenkins issued an amended “safe at home” order modifying the Declaration of Local Disaster for Public Health Emergency he issued on March 12, 2020. The amended order requires Dallas County residents to stay at home and permits them to leave their residences only for:

1. essential activities;
2. to provide or perform essential governmental functions; or
3. to operate essential businesses, including “essential healthcare operations,” “essential critical infrastructure,” and “essential retail,” all of which are detailed below.

The amended order went into effect at 11:10:00 a.m. on April 3, 2020, and will continue through 11:59 p.m. on April 30, 2020. Judge Jenkins also issued a separate order extending the Declaration of Local Disaster until 11:59 p.m. on May 20, 2020.

The purpose of the amended order is to reduce the spread of COVID-19 in the Dallas County region. The following comments summarize the amended order, with emphasis on areas that impact employers.

The amended order requires the following from businesses and implicitly, employers:

(b) All businesses operating within Dallas County, except Essential Businesses as defined in below in Section 2, are required to cease all activities at facilities located within the County except Minimum Basic Operations as defined in Section 2. For clarity, businesses may continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e. working from home). To the greatest extent possible, all Essential Businesses shall comply with the Social Distancing Rules attached, including maintaining six feet social distancing for both employees and the general public.

Non-“essential businesses” are allowed to perform the minimum necessary activities to maintain the value of the businesses’ inventory, ensure security, process payroll and employee benefits and other related functions, and to facilitate employees of the business being able to continue to work remotely from their residences. Non-essential businesses can also continue operations if they are completed remotely. Restaurants, microbreweries, micro-distilleries, or wineries may only provide take-out, delivery, or drive-through services.

The amended order adds an enforcement mechanism whereby a violation of the amended order is now considered a misdemeanor punishable by a fine not to exceed $1,000 and/or confinement in jail for a term not to exceed 180 days. Dallas County’s sheriff and fire marshal’s offices, and “other peace officers” are tasked with enforcing the amended order.

Additional information on specific terms of the amended order is provided below.

 Essential Healthcare Operations

The amended order defines “Essential Healthcare Operations” as follows:

• “Healthcare operations, including hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, mental health providers, substance abuse service providers, blood banks, medical research, laboratory services, or any related and/or ancillary healthcare services. Home-based and residential-based care for seniors, adults, or children are also considered healthcare operations. Healthcare operations also includes veterinary care.”

The amended order includes some exemptions. In particular, the amended order explicitly excludes “fitness and exercise gyms and similar facilities” from the definition of Essential Healthcare Operations. The amended order further excludes “elective medical, surgical, and dental procedures” from the definition of Essential Healthcare Operations.

The amended order prohibits all elective medical, surgical, and dental procedures. It, however, directs hospitals, ambulatory surgery centers, dental offices, and other medical facilities to identify which procedures are elective.

Essential Government Functions

The amended order defines “Essential Government Functions” as follows:

• “All services provided by local governments needed to ensure the continuing operation of the government agencies to provide for the health, safety and welfare of the public.
• All Essential Government Functions shall be performed in compliance with social distancing requirements of six feet, to the extent possible.”

Essential Critical Infrastructure

The amended order defines “Essential Critical Infrastructure” as follows:

“Work necessary to the operations and maintenance of the 16 critical infrastructure sectors as identified by the National Cybersecurity and Infrastructure Agency (CISA) including”:

• Public works construction,
• Residential and commercial construction,
• Airport operations,
• Water,
• Sewer,
• Gas,
• Electrical,
• Oil refining,
• Roads and highways,
• Public transportation,
• Solid waste collection and removal,
• Internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services),
• Financial institutions,
• Defense and national security-related operations,
• Essential manufacturing operations provided that they carry out those services or that work in compliance with social distancing requirements of six feet, to the extent possible.
• Essential Businesses providing essential infrastructure should implement screening precautions to protect employees and all activity is required to be performed in compliance with social distancing guidelines.”

Essential Retail

The amended order defines “Essential Retail” as follows:

• “Food service providers, including grocery stores, warehouse stores, big-box stores, bodegas, liquor stores, gas stations and convenience stores, farmers’ markets that sell food products and household staples. Food cultivation, including farming, fishing, and livestock.
• Businesses that ship or deliver groceries, food, goods or services directly to residences.
• Restaurants and other facilities that prepare and serve food, but only for delivery or carry out.
• Schools and other entities that typically provide free services to students or members of the public on a pick-up and take-away basis only.
• The restriction of delivery or carry out does not apply to cafes and restaurants located within hospital and medical facilities.
• Laundromats, dry cleaners, and laundry service providers.
• Gas stations, auto-supply, auto and bicycle repair, hardware stores, and related facilities.
• Businesses that supply products needed for people to work from home.
• Providers of Basic Necessities to Economically Disadvantaged Populations. Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.
• Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses.
  • Trash and recycling collection, processing and disposal, mail and shipping services, building cleaning, maintenance and security, warehouse/distribution and fulfillment, storage for essential businesses, funeral homes, crematoriums and cemeteries.
  • Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and Essential Businesses.
  • Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities.
  • Businesses that supply other essential businesses with support or supplies needed to operate.
• News Media. Newspapers, television, radio, and other media services.
• Childcare Services. Childcare facilities providing services that enable employees exempted in this Order to work as permitted.”

Additional Comments

• The amended order prohibits persons from selling any of the following good or services for more than the regular retail price the person charged for the goods or services on March 16, 2020:
  • groceries, beverages, toilet articles, and ice;
  • restaurant, cafeteria, and boarding-house meals; and
  • medicine, pharmaceutical and medical equipment, and supplies.
• The amended order implores residents to follow social distancing practices and attaches a chart of best practices to follow.
• The amended order encourages manufacturers that restructure or modify their operations so that “a substantial part of their business is for the purpose of manufacturing and producing ventilators [to] apply for an ‘essential business’ exemption.
• The amended order lifts previously implemented restrictions on delivery hours.
• The amended order directs employees of private businesses and nonprofits with six or more employees in the City of Dallas that they “can use their paid sick leave when they are sick or to care for sick family members.”
• The amended order prohibits public or private gatherings.

Dallas County also published additional rules and answers to frequently asked questions (FAQs) applicable to the manufacturing and distributing and construction industries, and long-term care facilities to assist in application of the amended order to these “essential businesses.”

Manufacturing and Distributing Industries

• Employees must take their temperature before going to work, and if an employee’s temperature is over 99.6 degrees Fahrenheit, they must remain at home.
• To the extent possible, employers must check their employees’ temperatures before employees begin work. If an employee’s temperature is over 99.6 degrees Fahrenheit, he or she must be sent home immediately.
• Employees may not gather during meals or breaks.
• Employees must keep six feet of distance between one another at all times, unless “the work being performed requires multiple individuals for the safety of the employees.”
• If possible, employers shall adjust timing of shifts to allow for more physical distance between employees.
• When possible, employers must allow non-essential employees to work from home.
• Employers must provide soap and water, and if not available, hand sanitizer, in the work place, including in all restrooms.
• Employees must wash their hands for at least 20 seconds before “beginning work, before any food preparation, before and after the use of shared items, after any meal or restroom breaks, and immediately prior to departing the work site.”
• When possible, employers shall discourage their employees from sharing work tools.
• Employers must provide employees a 15-minute rest break for every 4 hours worked so employees can follow hygiene guidelines.
• “There shall be no adverse action taken against an employee who has, due to possible exposure to coronavirus, (1) been quarantined or advised to self-quarantine; (2) have not reported to work because the worker has a temperature of 99.6 degrees or higher; and (3) requested to use paid sick leave under the employer’s policy.”
• At each work site, one member of management must be designated as the COVID-19 safety monitor, and one non-management senior hourly employee (or non-management employee if an hourly employee is not available) must be designated as vice safety monitor to oversee enforcement of these rules.

Construction Industry

• Only “new” construction is prohibited under the amended order. New construction is any “‘elective construction or maintenance’ project that would begin on or after 12:01 a.m. on March 30, 2020.”
• “Elective construction or maintenance” means “any new construction, including but not limited to, additions, alterations, conversions, expansions, reconstruction, renovations, rehabilitations, and replacements, that is primarily intended to increase the value or aesthetics of a residence or business. Construction or maintenance needed for the safety or continued use of a residence or business is not considered elective under this Order.”
• Construction sites may only have as many workers as the space allows to maintain six feet of distance between workers.
• Contractors must make efforts to implement shift work.

Long-Term Care Facilities (LTCFs)

• If a resident of an LTCF is diagnosed with COVID-19, the LTCF shall:
  • Immediately notify all staff of the diagnosis via a staff meeting, phone call, text message or email.
  • Immediately inform all mentally competent residents that a resident has been diagnosed with COVID-19. If a resident is asleep at the time of the diagnosis, the resident shall be notified immediately after he or she wakes. The LTCF shall document all notifications, including the time and method of delivery of the notifications and maintain records of same.
  • Immediately inform family members and responsible parties of all residents of the diagnosis by phone, text message, or email.
  • Within 30 minutes of identification of a case, post a notification regarding the resident’s COVID-19 diagnosis for public viewing at the LTCF’s main entrance, and prominently display said notification on the LTCF’s website. This website posting must be on the LTCF’s local webpage in addition to the LTCF’s corporate website.
  • Provide proof of completion of the four notification requirements mentioned above to Dallas County Health and Human Services within six business hours of the identification of a resident’s diagnosis of COVID-19.
• If an LTCF resident is diagnosed with COVID-19, the LTCF shall institute the following measures:
  • All health care personnel must wear masks for patient care and must have temperature and symptom checks prior to each shift. If a worker has a temperature above 99.6 degrees Fahrenheit, then he or she must remain at home.
  • The facility will be closed to new admissions and will also close all services.
  • All LTCF workers are prohibited from working at any LTCFs other than the impacted LTCF, and the administrator of each LTCF shall keep a list of all employees who have worked at any other LTCFs.
• “Any standards prohibiting improper transfer of patients will be strictly enforced.”
• An LTCF resident may transfer to home care, but only after the resident has tested negative for COVID-19. In the case of such a transfer, the LTCF must provide a copy of this order to those in the household to which the resident is being transferred, and all persons in the household are ordered to isolate at home. Members of the household who work in essential healthcare operations may continue to work in accordance with guidance by the U.S. Centers for Disease Control and Prevention.
• The LTCF shall inform the Health and Human Services Commission of all COVID-19 cases the same day each case is identified. The notification must also include a tally of total cases.

Businesses outside the exemptions listed in the amended order may need to act quickly to ensure they are able to comply with the amended order’s requirement that only certain operations continue after 11:10 a.m. on April 3, 2020. Employers may want to refer to Ogletree Deakins’ tips for a rapid shutdown and for continuing to operate a manufacturing business.

Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs and the firm’s FAQs.