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Apr 02

April 2, 2020 TML Coronavirus Update #14

Posted on April 2, 2020 at 5:17 PM by TML Staff

Urgent Updates


Has the governor issued guidance with respect to his most recent order relative to religious services?


Yes. The governor and the attorney general provided joint guidance yesterday stating that houses of worship are essential services. His press release, with a link to a guidance memo, is reproduced verbatim here:


Governor Greg Abbott and Attorney General Ken Paxton?today issued joint guidance regarding the effect of Executive Order GA 14 on religious services conducted in congregations and houses of worship.  


“All Texans must work together to stop the spread of COVID-19, and houses of worship face a particular challenge as we work to combat this pandemic,” said Attorney General Paxton. “This guidance provides clear direction for houses of worship to protect the health and safety of Texans as they continue to hold religious services, exercise their religious liberty, and serve their faith communities.”  


The Executive Order GA 14 defines essential services to include “religious services conducted in churches, congregations, and houses of worship.” Orders given by state or local governments prohibiting people from providing or obtaining certain services must ensure that the orders do not violate the First Amendment of the United States Constitution, Article I of the Texas Constitution, and the Texas Religious Freedom Restoration Act, which protect the rights of Texans to freely exercise their religion. 


Has the governor or attorney general issued any further clarifications on the governor’s latest executive order and how it interacts with local orders?


Not beyond the religious information provided above. However, the Hood County attorney requested an attorney general opinion asking for clarification on the scope of local orders. From the tone of the request, it appears the county attorney thinks local orders go beyond a city’s or county’s authority:


“In the wake of the Covid-19 virus, Governor Greg Abbott issued an executive order on March 19, 2020, and many counties and cities have issued more far-reaching orders since that time. The question is whether the contents of such orders are legal under the statute, Texas Constitution, and United States Constitution. An order from Hood County, dated March 25, 2020, is attached as Exhibit A. It is substantially similar to other orders issued in counties such as Tarrant, Dallas, Travis, Bexar, and Harris.”


The county attorney goes on to ask several questions about local authority. But the attorney general, citing litigation on those issues, is declining to provide an opinion.  As an example of such litigation, the County Judge in the North Texas County of Collin issued a social distancing order that appeared to be lax in its directives relative to a city in the county. The Mayor of the City of McKinney, located in Collin County, issued a more stringent order. Shortly thereafter, a local realtor sued the city, claiming that the county order – even though less stringent – controls over any city order. Earlier this week, a district court judge refused to issue a temporary restraining order against the mayor’s order. The refusal served as a victory for city authority, but how it interplays with the governor’s most recent order remains unclear. 


The attorney general indicates that he will answer one question that the county attorney submitted, that being:   “May local governments commandeer private property under [Government Code Section] 418.108, when this authority is only vested in the governor under [Section] 418.017(c)?”


What’s the answer? In the past, the League has taken the position that a mayor may do so in certain, limited circumstances. That reasoning was based on previous executive orders declaring hurricane disasters. Those typically provided that "These mayors . . . shall serve as the Governor's designated agents in the administration and supervision of the Act, and may exercise the powers, on an appropriate local scale, granted the Governor therein." 

But the governor’s most recent order doesn’t contain language like that. In fact, it does the opposite: It actually suspends some part (it doesn’t expressly say which part) of a mayor’s authority to issue local disaster. We will report back when the attorney general issues the opinion.


Where can a city obtain guidance regarding whether a particular provision in its local order is enforceable in light of the governor’s most recent order?


According to the attorney general’s office:


“Authorized local officials may now receive legal advice from the Office of Attorney General concerning Coronavirus.


In light of the Governor’s recent disaster declaration, the following local officials may now request legal advice from the Office of the Attorney General concerning the coronavirus:


-the emergency management director designated under Section 418.1015 for the political subdivision;

-the county judge or a commissioner of a county subject to the declaration; or

-the mayor of a municipality subject to the declaration.


Only these officials are authorized to request advice. Moreover, legal advice may only be requested concerning issues related to disaster mitigation, preparedness, response, and recovery concerning the coronavirus. Authorized local officials may request such legal advice by sending an email to, or by making a web request online.”


It’s unclear whether the limiting language above means a mayor can or can’t ask about whether provisions in a local order conflict with those in the governor’s most recent order. 


In any case, city officials should always remember that the city attorney’s advice should always be the final word on advice related to your city. If your city decides to submit a question, please copy


Are certain employees exempt from paid emergency sick leave and emergency family and medical leave under the Families First Coronavirus Response Act?


The Families First Coronavirus Response Act allows, but does not require, an employer to exclude an employee who is a “healthcare provider” or “emergency responder” from taking emergency paid sick leave and/or emergency family and medical leave. 29 C.F.R. §826.30(c). 


The definition of an “emergency responder” is expansive and includes “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”

Id. §826.30(c)(2). 


Similarly, a health care provider includes, among others, anyone employed at any hospital, health care center, clinic, a local health department or agency, or a facility that performs laboratory or medical testing. Id. §826.30(c)(1). Additionally, the governor and the mayor, as the highest officials of their territories, may, as applicable, determine other categories of emergency responders and health care providers, as necessary.


As mentioned above, a city is not required to exclude an otherwise eligible health care provider or emergency responder from taking emergency paid sick leave or emergency family and medical leave. The Department of Labor notes that “the authority for employers to exempt emergency responders is reflective of a balance struck by the FFCRA . . . [to] provide[] for paid sick leave and expanded family and medical leave so employees will not be forced to choose between their paychecks and the individual and public health measures necessary to combat COVID-19 . . . [and that] providing paid sick leave or expanded family and medical leave does not come at the expense of fully staffing the necessary functions of society, including the functions of emergency responders.”


A city that chooses to exclude otherwise eligible healthcare providers and/or emergency responders from taking leave under the FFCRA, must act affirmatively to do so. A city’s exercise of this option does not impact the employee’s earned or accrued sick, personal, vacation or other employer-provided leave under the city’s established policies.  Additionally, a city may not prevent an employee who is a health care provider or emergency responder from taking accrued leave in accordance with established policies.


Further Updates


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.