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Locke Lord QuickStudy: “Essential Business” Under Harris County Stay Home - Work Safe Order

Locke Lord LLP
March 25, 2020

Harris County Judge Lina Hidalgo issued a Stay Home – Work Safe Order, effective at 11:59 p.m. on Tuesday, March 24, 2020 through April 3, 2020, at least.  The Order—which applies to all businesses operating within Harris County—only permits continued operation of “Essential Business.”1  Those Essential Businesses are defined to include:

  1. Essential Critical Infrastructure – Work that is necessary to facilitate operations and maintenance of the “16 Critical Infrastructure Sectors” identified by the U.S. Department of Homeland Security’s National Cybersecurity and Infrastructure Security Agency (CISA).2

  2. Essential Government Functions – All services provided by local governments and municipalities needed to ensure their continued operation to provide for the health, safety, and welfare of the public.

  3. Essential City of Houston Government Functions – Services provided by the City of Houston that the Mayor determines to be essential.

  4. Essential Healthcare Operations – Including hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnological companies, healthcare suppliers, mental health providers, substance abuse service providers, blood banks, research centers, laboratory services, home-based healthcare, and veterinary care.The Order specifically contemplates broad construction of this exemption.

  5. Essential Retail – Including food producers and service providers (e.g., grocery stores, warehouse stores, furniture suppliers, big box stores, liquor stores, gas stations, and some farmers’ markets), food cultivation (e.g., farming, ranching, fishing, and livestock), food production (e.g., production of canned goods, bottled beverages, and other grocery items), food shipment/delivery services, restaurants—but only for delivery, drive-thru, or carry-out, laundromats/dry cleaners, gas stations, auto supply, auto and bicycle repair, hardware stores, and “businesses that supply products needed for people to work from home.”

  6. Providers of Basic Necessities to Economically Disadvantaged – Businesses that provide food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.

  7. Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses – Including trash and recycling operations, mail and shipping services, building maintenance, security, and operations, warehouse/storage for essential businesses, funeral homes, plumbers, electricians, exterminators, landscaping crews, housekeepers, janitorial staff, pool cleaners and “other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and Essential Businesses.”This includes professional services such as legal and accounting services, but only “when necessary to assist in compliance with legally mandated activities.”

  8. News Media – Including newspapers, television, radio, and other media services.

  9. Childcare and Adult Care Services – For facilities that are providing services that enable employees exempted under this Order to work.

  10. Infrastructure, Development, Operation and Construction – Including 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.

  11. Transportation – For businesses “related to the operation, maintenance, construction, and manufacture of transportation services,” which include, for example: (a) vehicle manufacturers, automotive suppliers, car dealerships, parts distributors, maintenance and repair facilities, (b) public transportation, (c) businesses supporting airport operations, (d) street and highway maintenance and construction, (e) gas stations and other fuel distribution businesses, (f) vehicles for hire, including Uber, Lyft, and taxicabs, “that enable persons to travel to or from employers, service provers, or businesses exempted in this Order.”

  12. Labor Union Functions – For “critical” labor union functions, including the maintenance of health and welfare funds and checking on the well-being and safety of members.

  13. NASA and Port of Houston – Activities of the National Aeronautics and Space Administration (NASA) and Port of Houston remain open.

  14. Airports and Related Operations – Airport and airline activities, operations, maintenance, and repairs, as well as the hotels that serve these businesses.

  15. Professional Services – Including legal, accounting, insurance, and “real estate” (quoted) services “when necessary to assist in compliance with legally mandated activities or to further Essential Businesses, Essential Government functions, or Critical Infrastructure.

The Order further commands all Essential Businesses to comply with the stated Social Distancing Guidelines and several infection protocol precautions to the greatest extent possible.

In addition to these broad categories of Essential Businesses, the Order also includes mandates for some specific businesses.  To that end, the following businesses have been ordered to close:

  • Gyms, fitness centers, swimming pools and other facilities that are used or intended to be used for any type of training, martial arts, sport or recreation; and
  • Hair and nail salons, spas, licensed massage businesses and tattoo parlors, concert halls, live performance theatres, arenas, stadiums, movie theatres, game rooms, bowling alleys, arcades, indoor and outdoor flea markets and swap meets, indoor malls, indoor shopping centers, and bingo halls

All owners, managers, and operators of any facility “that is likely to be impacted by this Order” are “strongly encouraged” to post a copy of the Order onsite and provide a copy to any inquiring customers or employees.

While little to no common law precedent defining the terms and circumstances set forth in the Order, if you have any concerns regarding whether your business qualifies as Essential Business or not, please reach out to Locke Lord for further strategic analysis.

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.
 
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1. The Order clarifies that all businesses “may continue operations consisting exclusively of employees ‎or contractors performing activities at their own residences (i.e., working from home).” ‎
2.  These sectors include: (1) chemical, (2) commercial facilities (e.g., entertainment and media, lodging, real estate, and retail), (3) communications (e.g., satellite, wireless), (4) critical manufacturing (e.g., primary metals, machinery, electrical, transportation), (5) dams, (6) defense industrial base, (7) emergency services, (8) energy, (9) federal services, (10) food and agriculture (primarily with respect to water/waste water systems, transportation systems, energy, and chemical manufacturing of fertilizers and pesticides), (11) healthcare and public health, (12) information technology, (13) nuclear reactors, materials, and waste sector, (14) sector-specific agencies, (15) transportation systems, and (16) waste and wastewater systems. More information is available at: https://www.cisa.gov/critical-infrastructure-sectors.

AUTHORS
Danielle Charron
Associate
Brandon F. Renken
Partner
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