No Shoes, No Shirt, No Mask, No Service

On March 2, 2021, Texas Governor Greg Abbott issued Executive Order (GA-34), which went into effect on March 10, 2021, lifting the mask mandate in Texas and increasing capacity of all businesses and facilities to 100%. When Governor Abbott made this announcement, nearly 5.7 million COVID-19 vaccination shots had been administered throughout Texas. Despite Governor Abbott’s optimism, however, on March 2, 2021, Texas had 7,240 new cases and 275 COVID-19 related deaths. Afterwards, Travis County immediately issued its own mask mandate to counter Governor Abbott’s Executive Order, resulting in the State of Texas suing Travis County and requesting a temporary injunction.  Texas Attorney General, Ken Paxton tweeted:

During the temporary injunction hearing on March 12, Judge Lora Livingston denied the initial emergency temporary injunction and set a second hearing for March 26. Accordingly, the Austin mask mandate remains in place until at least March 26.  But where does this leave the rest of Texas and the businesses who operate in Texas?

First off, there are two caveats in Governor Abbott’s orders. First, the order allows a County Judge to use COVD-19-related mitigation strategies to shut down businesses, but the County Judge cannot require businesses to operate at less than 50%. Further, a County Judge cannot make any order imposing operating limits for religious services, school, and child-care. The most significant caveat is that Governor Abbott specifically allows businesses to require both employees and customers to follow “additional hygiene measures, including the wearing of a face covering.” Simply put, Governor Abbott’s orders are merely the floor and not the ceiling for safety precautions in the State of Texas.

The Governor’s order does not overrule, nor does the Governor have the authority to pre-empt any federal regulations, including those from OSHA. On February 23, 2021, OSHA fined Maxi-Seal Systems, an auto parts manufacturer $15,604 for failing to implement proper COVID-19 safety precautions. In that case, two machine operators tested positive for COVD-19. The two workers had labored for hours at a time, less than two feet apart, neither one wearing a protective facemask consistently. About ten days later, two other workers who worked near them also tested positive for COVID-19. One died. Because of the above safety hazards, OSHA fined the business.

It is worth noting that, from the start of the pandemic through December 31, 2020, OSHA has conducted 300 inspections, and fined 294 employers a total of $3,930,381. This means that the average fine was $13,368.64. These inspections are not going to stop just because some states are lifting safety restrictions.

OSHA issues specific guidance for employers, and because it is a federal agency, it applies to all employers across the United States. OSHA also has industry specific guidelines for businesses that have unique circumstances. However, OSHA recommends that employers require face coverings, either cloth or surgical masks, because masks are simple barriers that help prevent respiratory droplets from an individual’s nose from reaching others. Additionally, OSHA recommends that employers implement a COVID-19 prevention program. Some of OSHA’s more general guidelines include:

  • Separating and sending home infected or potentially infected people at the workplace;
  • Implementing physical distancing in all communal work areas;
  • Installing barriers where physical distancing cannot be maintained;
  • Requiring face coverings;
  • Improving ventilation;
  • Using applicable personal protective equipment to protect workers from exposure;
  • Providing the supplies necessary for good hygiene practices; and
  • Performing routing cleaning and disinfection.

Additionally, OSHA suggests that employers provide accommodations for employees who have a serious underlying condition or workers who are older. As mentioned, these are general guidelines, and employers can implement stricter requirements.

As mentioned above, businesses are allowed to enforce their own private mask mandates—similar to requiring shoes and shirts in an establishment. However, businesses should still consider reasonable accommodations for individuals with disabilities. This can be accomplished by curbside pickup, delivery, or any other accommodation that would allow a potential customer access to the goods or services, while still having proper safety protocols in place. Additionally, just because a passenger on a plane or other form of public transportation travels to a state without a mask mandate, the passenger is still required to wear a mask. Depending on the industry, federal law or other regulations still require masks even if the state has rescinded a mask policy. Therefore, Texas’ employers are not completely in the Wild West in unilaterally enforcing a mask policy.

About the Author:

Adrian Acosta is an associate in the El Paso, Texas office at Dickinson Wright. He is licensed in both Texas and Michigan and assists clients in all areas of employment litigation, including discrimination, workers’ compensation, and wage and hour. Adrian also conducts workplace investigations and provides compliance training to different industries. Adrian can be reached at (915) 541-9326 or at Adrian’s business biography is found here.