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| Houston & Austin Issued Stay Home, Work Safe Orders effective at Midnight Tonight |
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by Carson Fisk UPDATE March 24, 2020 8:45 p.m.: Since the time we issued this update earlier today, the City of Austin inexplicably followed-up their initial Stay Home – Work Safe order with an extremely restrictive "Guidance for the Construction Industry" memorandum. While the original order allowed for a broad definition of “Critical Infrastructure” as an activity that should remain in operation, and “Construction” was specifically listed as being included, the memorandum issued this evening narrows that definition to include only six project types as being permitted to proceed:
- Public works projects
- Affordable housing projects
- Facilities for the homeless
- Facilities that provide social services
- Facilities defined in the Order as Essential Businesses, Essential Government Functions or Critical Infrastructure*
- Facilities specifically required by City in response to the COVID-19 Emergency
According to the memorandum, many—if not most—commercial and residential construction activities are now prohibited in Austin “except in the very limited situations.” Anyone with projects in Austin should carefully review the order and the memorandum to determine if current projects can be categorized as “Critical Infrastructure” (including whether construction involves facilities that are defined in the order as “Essential Businesses,” “Essential Government Functions,” or “Critical Infrastructure”) or must be closed down. While the order remains in effect starting at 11:59 p.m. on March 24, 2020, there is a 72-hour grace period as to enforcement “if the business or operator can demonstrate that all activities after the effective date of the Order were undertaken to close down the construction project or activity as safely and quickly as possible.” The interpretation of the order continues to evolve, and the memorandum may unfortunately create more questions than it actually answers. At the time of this update, Harris County has issued no similar interpretations.
* Section 6.f. of the order defines “Essential Businesses” as those covered by 25 different and broad categories, including but not limited to healthcare facilities, certain retail stores, hardware and supply stores, residential facilities and shelters, hospitality and lodging, and educational institutions.
March 24, 2020 4:30 p.m. Today, Harris County, the City of Austin, and Travis County—regions covering the cities that Andrews Myers calls home—issued stay-at-home/shelter-in-place orders that are similar to other orders issued by other Texas cities (e.g., Dallas, Waco, Lampasas, Galveston) and other states.
For Harris County, the 20-page “Stay Home, Work Safe” order is effective 11:59 p.m. on March 24, 2020 through April 3, 2020. A number of restrictions are placed on individuals, with everyone generally being subject to an order “to stay at their place of residence….” There are, however, a number of exceptions, including activities related to maintaining health, safety, and wellbeing, caring for others, obtaining necessary services and supplies (e.g., groceries, household goods, etc.), recreation, and certain types of work, among other things. All businesses operating within Harris County, except home offices and “Essential Businesses,” are required to close. “Essential Businesses” are defined to include a number of sectors, including:
Infrastructure, Development, Operation and Construction. For example, public works construction, construction of housing or other types of construction including commercial, manufacturing, airport operations and aircraft manufacturing, maintenance or repair, 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).
For a more detailed summary from Houston attorney Mahek Bhojani regarding the Harris County “Stay Home, Work Safe” order click here.
For Austin and Travis County, the orders—15 pages and 16 pages respectively—are effective 11:59 p.m. on March 24, 2020 through April 13, 2020 (ten days longer than the Harris County order), unless terminated or modified by a subsequent order. Similar to Harris County, everyone is ordered to “shelter at their place of residence” except as otherwise permitted by the orders for activities related to maintaining health, safety, and wellbeing, caring for others, obtaining necessary services and supplies, recreation, and certain types of work, among other things. The orders provide that except for “Essential Businesses,” business operations largely must stop, provided that the certain basic activities may continue (e.g., maintain value of inventory, ensure security, process payroll and employee benefits, facilitation of working remotely). However, “Essential Businesses,” essential governmental services/functions, and “Critical Infrastructure” “are strongly encouraged to remain open….” The list of what comprises “Critical Infrastructure” is expansive. In general, it is defined as “as all public and private facilities and assets … and other functions and sectors vital to the security, governance, public health, safety, and economic continuity” of Austin and Travis County. Specifically listed in both orders as being included within “Critical Infrastructure,” among other sectors and types of businesses, is:
Construction, including public works construction, and construction of affordable housing or housing for individuals experiencing homelessness, social services construction, and other construction that supports essential uses, including essential businesses, government functions, or critical infrastructure, or otherwise as required in response to this public health emergency;
In short, construction appears to be exempt from the orders to cease operations, though there are recommendations for employees and requirements for employers to follow in the orders. There are many details within the orders, and any applicable order should be carefully reviewed.
Each of the orders also exempts professional services, recognizing that legal services, such as those offered by Andrews Myers, may be deemed essential (e.g., in Harris County, “Essential Business” includes “Professional services, such as legal or accounting services, … when necessary to assist in compliance with legally mandated activities or to further Essential Businesses, Essential Government functions, or Critical Infrastructure”). In the face of these unprecedented circumstances, Andrews Myers remains fully operational and available to our clients.
For a link to the full Austin order click here.
For a link to the full Travis County order click here.
For a link to the full Harris County order, click here. |
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