States Issuing “Open-Up” Orders: What Do They Actually Mean?

April 22, 2020
By Timothy Sandefur

Texas, Georgia, and Tennessee have now announced plans to reopen their states’ businesses in the coming days. But given the need to maintain safety as much as possible, it’s important to look at the details of what these orders actually say and don’t say. One striking thing is how limited these orders actually are.

Georgia Governor Brian Kemp, for instance, issued this order Monday afternoon, which announces a lengthy schedule of reopenings and requirements. For example, it prohibits any business from allowing more than 10 people to be in a single location if they can’t meet the six-foot distance rule. And while it allows gyms, fitness centers, bowling alleys, tattoo parlors, hair salons, and makeup studios to reopen on April 24, they may do so only for “minimum basic operations,” which it defines as the “minimum necessary activities to maintain the value of a business” and process payroll. (Outdoor businesses such as landscaping and delivery are also allowed.) In other words, no sales, no awards ceremonies, and no indoor weddings.

What’s more, these businesses must comply with certain measures, including: screening out anyone who has a fever over 100.4 degrees, or has other signs of illness; mandating distancing; requiring sick employees to stay home; requiring hand washing; providing masks; barring gathering of employees during work hours; prohibiting hand-shaking; barring all touch-screen PIN devices—and others on a long list of safety requirements.

Under these restrictions, it’s clear that business won’t be returning to normal any time soon. But this offers a first step for businesses to find ways to comply with safety requirements, rather than being simply closed down. Some questions remain, however. For example, terms like “gym” are sometimes quite broad and can encompass anything from, say, a room full of exercise equipment to a karate studio to a yoga studio where people sit more than six feet apart on their own mats. It’s important for any “open up” order to be as clear and as objective as possible in saying what it prohibits and doesn’t.

The Georgia order also expands the category of “essential” workers to include the most recent version of the Department of Homeland Security list (which is quite broad) and reopens medical and dental offices, optometrists, and other types of clinics to provide “elective” surgeries as soon as they can comply with guidelines issued by the Centers for Disease Control and the Centers for Medicare and Medicaid Services. (The order also recommends, but doesn’t require, adherence to some additional safety guidelines.) And it sets the groundwork for a statewide testing requirement, to be enforced by the National Guard.

Texas Governor Greg Abbott’s order on April 17 allows non-“essential” businesses to reopen, but only if they can operate through pickup or delivery to a person’s home. It also strongly encourages people to continue “avoid[ing] eating or drinking at bars, restaurants, and food courts, or visiting gyms, massage establishments, tattoo studios, piercing studios, or cosmetology salons; provided, however, that the use of drive-thru, pickup, or delivery options for food and drinks is allowed and highly encouraged.” The order also allows churches to conduct in-person services, but only in accordance with a special set of guidelines to conduct services remotely whenever possible, and if not, to wash hands, clean and disinfect surfaces, instruct the ill to stay home, and, in particularly hard-hit communities, to remain closed. It also makes clear that people are free to go to the grocery store, the gas station, or to bike or jog, as long as they maintain required distance—although these points were already part of Governor Abbott’s March 31 order. The state will also reopen its state parks—but will require all visitors to wear masks, remain six feet from people in their party, and avoid groups of larger than five.

Meanwhile, Tennessee Governor Bill Lee has announced that he intends to allow his “Safer At Home” order to expire on April 30, but that while this will allow some businesses to reopen, they will have to comply with “specific guidance that we will provide in accordance with state and national experts.” Whatever those rules might be, they’re likely to require strict distancing and hygienic standards.

As the nation inches toward opening back up, government officials must make sure that their requirements are as clear, precise, and objective as possible, and that the criteria for retaining “shut down” orders or not are as quantifiable and as transparent as possible.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.