Texas Employer Requirements for the “Great Reopening”

Governor Greg Abbott is allowing retail businesses to reopen for curbside and home delivery on Friday, April 24, and is talking about allowing many other businesses, like hair salons, to reopen soon. But Texas employers should know that there are many requirements to protect your employees and customers from COVID-19 that you must address before you reopen.

The Department of State Health Services has condensed the “retail to go” requirements down to two pages here, and employment lawyers like me expect that similar precautions will be required as other businesses start to serve customers again.

The first decision an employer in the Texas Panhandle must face is whether to reopen at all. Gov. Abbott specifically said on Wednesday, April 22, in radio interviews, “there are some counties where the coronavirus outbreak is still progressing too rapidly, and they may not be able to fully participate in the initial phase of reopening until they get the spread of the coronavirus in their county under control.” Guess which counties he specifically named? Moore, Potter and Randall. Yes, friends, we are now a hot spot in Amarillo. The virus is not “under control” here, according to our governor.

Our area is seeing the kind of spike in COVID-19 cases that should make you at least carefully consider waiting to reopen. However, if you decide that economically you must open your retail business for curbside and delivery, or another business once allowed, here are the minimum requirements for employers, according to the DHSH guidance regarding the Texas Retail to Go Order:

  • Train all employees on environmental cleaning and disinfection, hand hygiene, and respiratory etiquette. Do you know how to do that yourself? Have you read all the CDC guidelines for businesses and obtained the necessary cleaning supplies and personal protective equipment? It is not just a matter of occasionally wiping down a light switch with a Clorox wipe (if you could even purchase Clorox wipes right now). For example, do your employees use any shared equipment in your business, such as bar code scanners, pens, card readers, cash registers? These must be super-sanitized if you can’t provide each employee an individual piece of equipment.
  • The state requires that all employees resuming work under this retail to go order must be screened for COVID-19 symptoms before coming into the business each day for new or worsening cough; shortness of breath; sore throat; loss of taste or smell; feeling feverish or a measured temperature greater than or equal to 100.0 degrees Fahrenheit; or known close contact with a person who is lab-confirmed to have COVID-19. How are you instituting this screening? Will you be using the thermometer purchased by the business (see below for what that involves). If you are going to trust your employees to take their temperatures at home, do you even know if they own a reliable thermometer and know how to use it correctly?
  • The state says that upon entering the business, employees must wash or sanitize hands. How are you going to monitor this? Have you been able to purchase hand sanitizer that is at least 60% alcohol? Is hot water and an endless supply of hand soap and disposable paper towels stocked up for your employees?
  • All employees must wear face coverings, the state’s order says. Since it is mandatory for your employees to wear a face mask in order for you to reopen, you as the employer must pay for and provide the face masks to your employees, according to OSHA regulations. As the employer, you are also responsible to train employees at a minimum to know when a mask is necessary, how to properly don, doff, adjust and wear Personal Protective Equipment (“PPE”) (for example, they must take paper masks off by the elastic and wash their hands immediately after disposing of the mask), and the proper care, maintenance, useful life and disposal of the PPE. If you can only provide cloth face masks, you need to know what is required to make a cloth face mask effective and understand that they only help to prevent egress of the virus, not ingress. In other words, cloth face masks protect the person in front of the mask-wearer from respiratory droplets, not the mask-wearer themselves. If everyone (employees and customers) is consistently wearing one, then they provide decent protection from the virus. But as the employer, that’s not the end of your duty. You must also assure that the cloth face masks are properly sanitized before wearing by your employees or provide newly sanitized ones each day. So obviously, you’ll need more than one mask per employee (what if one employee forgets theirs) and some way to verify that they are sanitized.  
  • Employees must maintain at least 6 feet separation from one another. We should all be used to this one by now, but I see physical distancing violated constantly. As the employer, it is your responsibility to keep your employees safe by strictly enforcing physical distancing. Can they perform their work at this distance? The meatpacking companies are certainly having to face this problem, but so does every business, even if on a smaller scale.

Many employers have obtained forehead thermometers to start monitoring employee temperatures. While such medical tests are normally considered a violation of the Americans with Disabilities Act by the EEOC, there is an exception for pandemics. But you still have significant responsibilities as the employer when taking employee temperatures at the beginning of a shift:

  • You need to obtain a reliable medical thermometer that measures the forehead temperature without touching the employee. These have been extremely difficult to find since the epidemic started. And no, the infrared ones the hardware store sells are not accurate enough for body temperatures.
  • One well-trained person needs to be in charge of taking the temperatures. That person needs to receive extra PPE, preferably with an N-95 mask, since that person will have to be closer than 6 feet to every single employee, some of whom may turn out to be ill.
  • You must set a standard temperature that you are screening for, even though “normal” temperature fluctuates with body chemistry and time of day. The state of Texas requires that you send anyone with a temperature of 100.0 degrees F or higher home immediately, so any employee who registers that temperature must leave, get medical care and not return until released by a healthcare professional.
  • The manufacturer’s instructions on disinfecting the thermometer (yes, even though it is touchless) must be followed consistently.
  • Medical information of an employee is private, so you must not broadcast any employee’s temperature. If written down (which is the best way to prove that you complied with the retail to go order and attempted to protect your employees and customers), temperature records must be stored in a locked filing cabinet or encrypted electronic storage.
  • Privacy and physical distancing also means that employees should not line up together to get their temps taken. Each one should be checked privately before the next person is checked.

Are you overwhelmed yet? You need to understand that both the federal and the Texas state government, by encouraging businesses to reopen now, are kicking the can to you as an employer. You are allowed to generate revenue again, but with that privilege comes very serious responsibilities. You are the one who has to keep your employees and customers safe. Providing a safe workplace is always your responsibility, but that general duty is just more difficult now.

Lawsuits have already started to arise based upon employers’ alleged failure to take protect employees from this deadly disease. As a defense lawyer, the best I can advise is that you carefully follow the steps outlined above and any new governmental guidance that is issued (seriously, you almost need to check the CDC website every day).

Best practice would be for you to develop a daily checklist for your particular business and assure that it is completed each day and kept for proof that you conscientiously tried to protect your employees with the best information that you had at the time.

Leave a Reply