On August 11, 2021, Dallas County Judge Clay Jenkins signed an emergency executive order, taking effect at 11:59 p.m. that same day, requiring “all child care centers and Pre-K through 12 Public Schools operating in Dallas County,” as well as “all commercial entities in Dallas County providing goods or services directly to the public,” to “develop and implement a health and safety policy” that requires “universal indoor masking” regardless of vaccination status. The emergency order does not define “child care centers” or state any specific exceptions to the mask requirement other than for “children under 2 years of age.” Following the announcement, many school districts in the county confirmed they would enforce a mask mandate in accordance with the emergency order.
The order states that “commercial entities in Dallas County providing goods and services directly to the public … must post the Health and Safety Policy required by this Executive Order in a conspicuous location sufficient to provide notice to employees and visitors of all health and safety requirements.” The Frequently Asked Questions (FAQs) that the office of the county judge published along with the emergency order provide some clarity on this point, stating that “businesses” must post the health and safety plan “in a location where employees and visitors can easily see it before entering the business premises.” (Emphasis added.)
Unfortunately, both the emergency order and the FAQs provide little guidance as to what constitutes a “commercial entit[y] … providing goods or services directly to the public,” leaving many businesses grappling with whether the emergency order applies to them or to all their locations such as a corporate office where members of the public do not visit. Oral comments made by Judge Jenkins suggest he intended for the order to apply to office-based locations, but that remains unclear and could depend on the type of business and the location at issue.
The FAQs state that “[c]ommon areas of residential propert[ies], such as laundry rooms, mail rooms, gyms, lobbies, and elevators, are subject to the mandatory face mask requirements included in this Order.” Thus, Judge Jenkins may have intended for the emergency order to apply equally to common areas in commercial buildings. What is a “common area” in a given office environment will be fact-specific and depend on the physical layout of the office.
The FAQs do provide some insight as to what it means to “implement” the required health and safety policy pursuant to the emergency order, stating:
Businesses must take reasonable steps to enforce the face mask requirements of this Order, such as posting signage stating that masks are required, having employees monitoring the premises to ensure that all employees and visitors are wearing a face mask, and verbally instructing any visitor not wearing a face mask that a mask is required to enter the premises.
According to the FAQs, businesses will not be subject to fines or penalties “if they take all reasonable steps to enforce the face mask requirements.” However, the order states that “[s]tarting at 11:59 p.m. on Saturday, August 14, 2021, a business can be fined up to $1,000 for each violation. This means if a business does not take reasonable steps to enforce the face mask requirements, a business can be fined up to $1,000 for each person the business allows to enter their premises without a face mask.” Individuals, on the other hand, will not be subject to civil or criminal fines or penalties for failing to wear a face mask. Neither the executive order nor the FAQs indicate who will monitor compliance, investigate complaints, or issue fines, but in the past, Dallas code compliance and the county health department appeared primarily responsible for doing so.
The emergency order is a result of rising COVID-19 cases amid high-transmission of the Delta variant in Dallas County coupled with a successful challenge by Judge Jenkins to Governor Abbott’s Executive Order GA 38, which prohibits local governmental entities and officials from mandating face coverings anywhere in Texas. Specifically, Judge Jenkins successfully obtained a temporary restraining order (TRO) against the governor’s Executive Order GA 38 from a Dallas County district court judge late on August 10, 2021. In issuing the TRO, the district court judge found the citizens of Dallas County would suffer irreparable harm if the governor’s executive order continues to preclude Judge Jenkins from implementing the mitigation strategies he believes to be appropriate. The TRO is in effect through August 24, 2021, when there will be a hearing to determine whether a permanent injunction of the governor’s executive order should issue.
However, the legal battle in the war between Governor Abbott and Judge Jenkins—along with other local Texas officials who issue similar orders—will not have to wait until August 24. Only a few hours after Judge Jenkins announced his emergency order, Governor Abbott and Texas Attorney General Ken Paxton filed a mandamus petition in the Texas 5th District Court of Appeals, seeking to strike down the actions taken by Judge Jenkins. Governor Abbott and Attorney General Paxton also issued a press release stating that “[t]he State of Texas will continue to vigorously fight the temporary restraining order to protect the rights and freedoms of all Texans.” It remains to be seen who will win this battle of elected officials in the Texas courts.
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) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
