Client Alert: Mask on, Mask Off: Should Texas Employers Revise Their Policies in Light of Governor Abbott’s Recent Executive Order?

On March 2, 2021, Governor Abbott issued Executive Order GA-34 (the “Executive Order”), which provides that face mask use in Texas is encouraged but no longer required, and most Texas businesses are legally permitted to operate at full capacity. For businesses located in areas in which the number of COVID-19 hospitalizations exceed 15% of total hospital capacity for more than one week (called “high hospitalization areas”), the county judge may impose new mask mandates and capacity restrictions until the COVID-19 hospitalization rate drops. The Executive Order prohibits county judges and other local officials outside of high hospitalization areas from imposing mask requirements or capacity limitations. Some businesses continue to be subject to federal orders requiring face masks, such as railroads, airlines, and the facilities associated with them, including airports. But because most Texas businesses are not currently subject to mask requirements and capacity restrictions, many employers now wonder whether they can, or should, change their policies.