April 18, 2021

Volume XI, Number 108

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April 16, 2021

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April 15, 2021

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Texas Governor Lifts Mask Mandate, but Employers Must Still Comply with the Occupational Safety and Health Act

Yesterday, March 2, 2021, the Governor of Texas, Greg Abbott, issued an order lifting his previously-imposed face covering mandate effective March 10. The order also removes certain other COVID-19 mitigation requirements previously implemented by the Governor.

Under his order, the Governor allows counties qualifying as an "[a]rea with high hospitalizations" under a numerical test tied to the level of COVID-19 hospitalizations in that locality, to impose certain restrictions. Significantly, however, even in those local jurisdictions, there can be no penalty for an individual’s disregard for a local mask mandate - other than a business owner making use of trespass laws for a visitor disregarding a face covering requirement.

This action may lead other states to abandon mask mandates and loosen other COVID-19 public restrictions based upon the growing availability of vaccines and the decline in reported COVID-19 cases, hospitalizations and deaths.  In fact, the Mississippi Governor announced the end of that state’s mask mandate within hours following the Texas announcement.

Governor Abbott recognizes that his new pronouncement “does not preclude businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering.” 

Importantly, private sector employers in Texas should consider their obligations under the federal Occupational Safety and Health Act before doing away with face covering requirements and other COVID-19 mitigation measures. Occupational safety and health jurisdiction rests with the federal government, specifically OSHA, and not the state of Texas.  Recently OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, which identifies face coverings as an example of a measure that will limit the spread of COVID-19 in the workplace.

President Biden, and Department of Labor officials, have signaled that tougher enforcement of workplace safety and health standards with regard to COVID-19 is coming and new COVID-19 mandatory workplace rules may be released by OSHA no later than Monday, March 15, 2021. 

Accordingly, employers in Texas and elsewhere should consider maintaining and enforcing face covering requirements and other COVID-19 mitigation measures, which continue to be recommended by both the CDC and OSHA.

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© 2021 Bracewell LLPNational Law Review, Volume XI, Number 62
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Robert Nichols, employer litigation attorney, bracewell law firm, lawyer harassment claims, wrongful discharge case, occupational safety issues
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Robert Nichols represents employers in litigation, administrative actions and arbitrations concerning discrimination and retaliation, harassment, wrongful discharge, occupational safety and health, union-management relations, wage and hour matters, and other concerns related to employment. Mr. Nichols has defended more than 200 employment-related lawsuits in federal and state court, represented employers in more than 300 federal and state agency employment discrimination investigations, and handled numerous Occupational Safety and Health Administration (OSHA) cases,...

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Amy Karff Halevy, Employment, Attorney, Bracewell law firm
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Amy Halevy counsels and represents employers in all areas of employment law. She guides her business clients in the preparation and application of employment policies and procedures. Amy also provides valued advice in assisting with complex and high level company investigations when there are concerns of employee misconduct or in other areas related to the employment relationship. She has successfully represented employers for more than 25 years in matters related to discrimination, harassment, and other employment-related claims.

Amy has...

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Rebecca L. Baker, Bracewell, State Court Litigation Lawyer, Employment Handbooks Attorney
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Rebecca Baker counsels and represents employers in all areas of employment law. She represents employers involved in federal and state court litigation and advises and represents them with respect to administrative claims. Becky's experience includes matters involving retaliation, whistleblower protection, wrongful termination, discrimination, harassment, and wage and hour issues. In addition to litigation, she works with management clients to draft employment policies and employee handbooks and to address issues related to the hiring, retention and termination of...

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