Austin and San Antonio-Area Businesses Now Required to Adopt Plans Mandating Face Coverings, But Fines May Be Imposed in San Antonio

On June 17, 2020, Bexar County Judge Nelson Wolff issued Executive Order NW-10, requiring all businesses operating in the county, which includes San Antonio, to implement a health and safety policy to include the mandated use of face coverings by employees and customers when social distancing of at least six feet is not possible. The order, which went into effect at 12:01 p.m. on June 17, 2020, and continues through June 30, 2020, exposes businesses to potential fines of up to $1,000 for each violation.

On April 27, 2020, Texas Governor Greg Abbott issued Executive Order GA-18, wherein he encouraged individuals to wear face coverings, but prohibited local authorities from imposing a civil or criminal penalty on individuals who refused. As Texas has gradually reopened, the number of COVID-19 cases and associated hospitalizations has dramatically increased, resulting in a June 16, 2020, request to Governor Abbott from San Antonio Mayor Ron Nirenberg and eight other Texas mayors to allow each city’s local officials to decide whether to require the use of face coverings to prevent the spread of COVID-19. In response, Governor Abbott reiterated his position that individuals should not face penalties, but emphasized other tools available to local governments to slow the spread of the virus, including fines on businesses.

Consistent with this message, Judge Wolff’s order provides that “no civil or criminal penalty will be imposed on individuals for failure to wear a face covering.” As such, Governor Abbott subsequently approved Judge Wolff’s order, with the governor’s spokesperson recognizing that the county order “is not inconsistent” with Executive Order GA-18 or his subsequent executive orders.

Importantly, Judge Wolff’s order requires “commercial entities in Bexar County providing goods or services directly to the public [to] develop and implement a health and safety policy” that “require[s], at a minimum, that all employees or visitors” to the business “wear face coverings when in an area or performing an activity which will necessarily involve close contact or proximity to co-workers or the public where six feet of separation is not feasible.” The order also requires businesses to post their health and safety plans “in a conspicuous location sufficient to provide notice to employees and visitors of all health and safety requirements.” The plans must be posted by June 22, 2020. Failure to implement this policy, including the mandated use of face coverings, is what will expose businesses to possible fines of up to $1,000 per violation. Finally, the order makes clear that face coverings are secondary to, and not a replacement for, other mitigation efforts, including social distancing, frequent handwashing, and self-isolation when ill.

Austin Mayor Steve Adler soon followed Judge Wolff’s lead by issuing Order No. 20200617-014. This order, which applies to all commercial entities in the City of Austin providing goods or services directly to the public, took effect as of 11:59 p.m. on June 17, 2020, and continues through August 15, 2020. Importantly, unlike Judge Wolff’s order, the Austin order does not contemplate the issuance of any monetary penalties for violations.

Covered businesses in Austin must “develop and implement a health and safety policy or plan . . . [that] require[s], at a minimum, that all employees and visitors wear face coverings while on the commercial entity’s business premises or other facilities except in the following circumstances:

1. when the person is alone in a separate single space, whether indoors or outdoors;
2. when the person is in the presence only of other members of the same household or residence, whether indoors or outdoors;
3. when doing so poses a greater mental or physical health, safety, or security risk;
4. when the person is outdoors engaging in an allowed activity while alone, or with only members of the same household or residence, or while maintaining a consistent separation of six feet or more from others and engaging in conduct authorized and as allowed by Governor’s Order GA-26 or subsequent executive order; or
5. when the person is eating or drinking in a restaurant or bar.”

The Austin order requires businesses to post their health and safety policies or plans by June 23, 2020, in a conspicuous location that will provide notice to employees and visitors.

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