Texas Re-Opens Retail Businesses

On April 17, 2020, Texas Governor Greg Abbott signed an Executive Order authorizing the re-opening of retail businesses. The Texas Department of Health and Human Services provides specific guidance for reopened retail services on its website.

Please Note:  The Texas DHHS COVID-19: Guidance for Employers, Employees, and Customers of Reopened Retail Services Does Not Apply to Businesses Considered Essential

This guidance is intended for employers, employees, and customers of retail businesses reopening under the Governor’s Executive Order issued on April 17, 2020. This guidance does not apply to businesses considered essential. This guidance is based on recommendations from the Centers for Disease Control and Prevention (CDC).

The guidance includes the following:

I am an Employee of a retail business that is re-opening. What should I do to keep myself and our customers safe?

  • All employees must be trained on environmental cleaning and disinfection, hand hygiene, and respiratory etiquette.
  • All employees must be screened before coming into the business for a 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 to have close contact with a person who is lab-confirmed to have COVID-19. Any employee who meets any of these criteria should be sent home.
  • Upon entering the business, employees must wash or sanitize hands.
  • All employees must wear face coverings.
  • Employees must maintain at least 6-feet separation from one another.

COVID-19 Testing

  • Your doctor will help make the decision if you should get tested for COVID‑19.
  • If you do not have health insurance, you can still get tested for COVID‑19 if your doctor or healthcare provider recommends it.
  • For information about testing, you just need to call your doctor and/or access care the way you usually do. If you need help finding a doctor or accessing medical care, call 2‑1‑1 and they can direct you to low- or no-cost providers in your area.
  • People can get tested for COVID‑19 at drive‑thru locations in certain parts of Texas.

The Americans with Disabilities Act and How It Applies to Employee Testing

The COVID-19 pandemic presents unprecedented challenges for any employer seeking to provide a healthy working environment. The Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers considering screening and testing protocols for employees and job applicants. Here is a link to the EEOC site:  www.eeoc.gov/coronavirus.

The EEOC guidance explains what precautionary measures are now permissible under the Americans with Disabilities Act (ADA), including:

  • During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries (even if disability-related) are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

Applying this principle to current CDC guidance on COVID-19, employers may ask employees who report feeling ill at work or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

See the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act — Updated in Response to Covid-19 Pandemic, March 21, 2020 at https://www.eeoc.gov/facts/pandemic_flu.html.

  • During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.

However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, may not have a fever.

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.

  • May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. healthcare employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves.  Therefore, employers should continue to follow the most current information on maintaining workplace safety.   To repeat:  Employers should feel free to follow recommendations of the CDC or public health authorities; the ADA will not interfere with employers who do so.

  • May an employer withdraw a job offer when it needs the applicant to start immediately, but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, therefore the employer may withdraw the job offer.

See our COVID-19 Quick Reference page for additional articles.

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By Published On: April 17, 2020Categories: Employment LawTags: ,


Avatar of Casey Erick
Casey Erick is a Shareholder and focuses on Commercial Litigation and Employment Law. He has represented clients in both litigation and transactional matters that span across commercial law, labor and employment, real estate, consumer protection, and general litigation including, but not limited to breach of contract, corporate trade secret theft, tortious interference, defamation, personal injury, fraud, and various other kinds of civil litigation. He has represented high-profile clients as well as defended against high-profile national and global entities in matters related to commercial litigation, defamation, privacy, negligence, the Stored Communications Act, the Texas Harmful Access by Computer Act, Texas identity Theft Enforcement and Protection Act, and the Computer Fraud and Abuse Act. Casey is Board Certified in Civil Trial Law.