Two Steps Forward, One Step Back: Virginia Prepares for Statewide Entry Into “Phase One” of Reopening, While Issuing New Face Covering Mandate

Virginia Governor Ralph Northam announced on May 27, 2020 that the Northern Virginia Region, the City of Richmond, and Accomack County – which delayed implementing “Phase One” of the Commonwealth’s reopening protocol by two weeks – will move into Phase One on May 29, 2020. These areas join the rest of the Commonwealth in the first step of the planned incremental reopening during the COVID-19 pandemic. 

In moving to Phase One on a statewide basis, the governor explained that health directors in the Northern Virginia Region observed four health-related metrics trending in an encouraging direction: there was a 14-day decline in the percentage of positive COVID-19 tests; a 14-day decline in hospitalizations of people with positive or pending tests; increased testing capacity; and adequate hotel bed capacity in the region.  The governor further explained that Accomack County also reported data that supported the move to Phase One. 

Rejecting a request by the mayor of Richmond to modify Phase One for restaurants and places of worship within that city’s limits, the governor reiterated that Phase One permits businesses to open; it does not require them to do so.  The governor also explained that the Commonwealth is still ramping up its long-term supply of personal protective equipment (PPE) and is in the process of hiring approximately 1,200 contact tracers to better isolate and treat positive cases until a vaccine can be developed.

Face Covering Mandate

The governor also issued Executive Order 63 and Order of Public Health Emergency Five (“Executive Order 63”), which significantly extends the face covering requirements previously put in place in an effort to combat the spread of COVID-19.  In addition, the governor indefinitely extended Executive Order 51, which declared a state of emergency in Virginia due to COVID-19, so that statewide emergency response measures remain in place.

Beginning on Friday, May 29, 2020, employees of essential retail establishments will be required to wear face coverings when working in customer-facing areas.1  Further, in an effort to promote the safety of workers, consistent with current recommendations from the Centers for Disease Control (CDC), Executive Order 63 requires almost all patrons to wear face coverings over their nose and mouth while indoors.  Adults and children age 10 and over are required to wear a face covering at all times while entering, exiting, traveling through, and spending time in:

  • brick and mortar retail businesses;
  • personal care and personal grooming businesses;
  • food and beverage establishments;
  • public transportation (including waiting or boarding areas for such transportation);
  • entertainment or recreation businesses (including when outdoors if social distancing of at least six feet cannot be maintained);
  • government buildings; and
  • “[a]ny other indoor place shared by groups of people who are in close proximity to each other.”

Adults accompanying minors age 10 through 18 shall use reasonable efforts to prompt minors to wear face coverings while inside the public areas noted above.  Children age two or older are also strongly encouraged to wear such face coverings to the extent possible, consistent with the best judgment of the adult accompanying them.

There are, however, some exemptions.  Individuals need not wear a face covering:

  • when inside their own residence or the personal residence of another;
  • while eating, drinking, exercising, or participating in a religious ritual;
  • while attending daycare centers or participating in in-person educational classes (whether K-12 or postsecondary education) as a student;
  • when needing to have their mouth visible while attempting to communicate with hearing-impaired individuals or when necessary to secure government or medical services; or
  • when their health conditions prohibit wearing a face covering, or they otherwise have trouble breathing or are unable to remove the face covering without assistance.  Individuals who are medically unable to wear a face covering are not required to produce or carry medical documentation substantiating their condition or to identify their precise underlying medical condition. 

Moreover, aside from recreational businesses where social distancing cannot be maintained, patrons are not required to wear face coverings outdoors (e.g., while seated outdoors at a bar or restaurant).

The Order goes into effect on Friday, May 29, 2020 and remains in place indefinitely, until amended or rescinded by further executive order.  Willful violations are punishable as a Class 1 misdemeanor, as enforced by the Virginia Department of Health (VDH).  No minor under the age of 18, however, shall be subject to criminal penalties for failing to wear a face covering.  The governor also signaled that the General Assembly may be convening a special session in July or August, and that the legislature may consider imposing civil (but not criminal) fines for future violations.

Importantly for employers, the governor has also instructed the Virginia Department of Labor and Industry (DOLI) to announce emergency regulations applicable to every employer covered under the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.  Those regulations, once announced, will address topics such as PPE, respiratory protective equipment, sanitation, access to employee exposure and medical records, and hazard communication. 

See Footnotes

1 Executive Order 61, which remains in full effect, had already required employers to provide face coverings to employees in essential retail establishments.  In addition, employees who work in customer-facing areas of non-essential retail businesses, restaurants, breweries, and other food and beverage establishments, farmers markets, fitness and exercise facilities, barbershops, salons, and other personal care and personal grooming businesses, campgrounds, and indoor shooting ranges have all been required to wear face coverings since May 15, 2020.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.