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.
Updated: May 11, 2020
At a press conference on May 4, 2020, Virginia Governor Ralph Northam announced the Commonwealth’s three-phase plan for easing, and eventually lifting, the restrictions imposed on nonessential businesses because of the COVID-19 pandemic. Virginia thus joins the growing number of jurisdictions that have announced and/or implemented measures to reopen nonessential businesses.
Before the Commonwealth’s reopening plan begins, however, Governor Northam announced that Executive Order 53’s closures of recreational businesses, entertainment businesses, and certain brick-and-mortar retailers, would be extended until May 15. During this time, the other requirements of that Order also remain intact.
On May 9, 2020, the governor issued Executive Order 61 and Order of Public Health Emergency Three (“Executive Order 61”), which goes into effect on May 15 and which is set to remain in effect through June 10, 2020, unless otherwise amended or rescinded. (At a May 8 press conference, however, the governor’s chief of staff signaled that Northern Virginia—i.e., Arlington County, Prince William County, Loudoun County, and Fairfax County, and the towns and cities located within the borders of those counties—might not begin Phase I until around May 29.) The governor said his focus throughout this process is on monitoring whether there is a downward trend in positive COVID-19 tests, an increase in testing, and an ability for hospitals to maintain steady capacity and necessary supplies of personal protective equipment (PPE).
In the meantime, to allow businesses to prepare for this phased reopening, the governor has provided a blueprint for what the three phases will entail. The governor has also provided a list of Guidelines for All Business Sectors containing recommended practices for Phase I.
During Phase I, social gatherings in the Commonwealth will continue to be limited to no more than 10 people, and face coverings will continue to be recommended. Executive Order 61 also effectively relaxes Virginia’s stay-at-home order (Executive Order 55), which is currently in effect until June 10, 2020, to a “safer-at-home” model.
Restrictions on businesses and faith communities will be eased in several ways during Phase I. Specifically:
- Non-essential brick and mortar retail businesses may expand from a 10-person maximum to permit customers at up to 50% of the establishment’s capacity (i.e., 50% of the lowest occupancy load on the business’s certificate of occupancy). Employees in public-facing areas must wear face coverings at all times.
- Restaurants, breweries, and beverage services that already have a permit for outdoor seating can expand from delivery and carry-out services to accommodate patrons with outdoor seating (though indoor seating will continue to be prohibited) at 50% capacity. Parties may not be seated together in groups of more than 10. All self-service of food is prohibited, and condiments must be removed from tables, with employees serving condiments to patrons at their request. Self-service beverage areas may be opened as long as the equipment used is designed to dispense the beverages in a contamination-free method. Tabletops, chairs, and credit card/bill folders must be cleaned in between patrons, and any other frequently contacted surfaces must be cleaned and disinfected at least once every 60 minutes while the business is open.
- Farmers markets may open as long as physical distancing guidelines are followed, including configuring the traffic patterns to avoid congestion. Employees and vendors are required to wear face coverings at all times, and vendors must offer hand sanitizer stations or hand washing stations for both patrons and employees.
- Gyms and fitness centers will be allowed to hold outdoor classes of up to 10 people (though indoor access to those facilities (including hot tubs and spas) and indoor classes remain prohibited). Equipment that cannot be thoroughly disinfected between uses (e.g., climbing rope and exercise bands) is prohibited. Lap swimming in outdoor swimming pools (one person per lane) is permitted, but splash pads, spray pools, and any other interactive play features must remain closed. Employees must wear face coverings, and the business must provide hand sanitizer stations or hand washing stations for patrons, members, and guests.
- Personal care and personal grooming services such as beauty salons, barbershops, spas, massage centers, tanning salons, and tattoo shops may reopen on an appointment-only basis at up to 50% capacity. Employees and service providers must wear face coverings, and businesses must either provide face coverings for clients or require that clients bring their own face covering. There must be at least six feet of physical distancing between work stations. Services that require clients to remove their face covering (e.g., men’s facial shaving at barbershops) are prohibited. Personal care and personal grooming tools must be cleaned and disinfected after each use, and all frequently contacted surfaces must be cleaned and disinfected every 60 minutes while the business is open.
- Places of worship may hold indoor services at 50% capacity, and/or may continue to hold drive-in services. For indoor services, attendees (other than family members) must be at least six feet apart when seated. Religious institutions must post signage reminding visitors that no one with a fever or symptoms of COVID-19 is permitted in the establishment and providing public health reminders about social distancing, gatherings, and options for high-risk individuals. Institutions must also mark seating in six-foot increments and in common areas where attendees may congregate. No items (e.g., prayer books) may be passed to or between attendees other than family members, and any items used to distribute food or beverages (e.g., sacramental wafers) must be disposable and discarded after a single use. Frequently contacted surfaces must be thoroughly cleaned and disinfected prior to and following any religious service.
- Private campgrounds may reopen, as long as at least 20 feet of distance is maintained between units for all lots rented for short-term stays of fewer than 14 nights (and not owned by individuals). Employees in public-facing areas must wear face coverings at all times, and customers should be strongly encouraged to wear face coverings. Hand washing stations in bath houses and hand sanitizing stations must be provided for guests and employees.
- Indoor shooting ranges may reopen at 50% capacity, using every other lane to achieve at least six feet of physical distancing. Shared or borrowed equipment must be thoroughly cleaned disinfected between uses, though businesses are also permitted to allow only the use of personal equipment at the range. Frequently contacted surfaces must be cleaned and disinfected every 60 minutes while the business is open.
Entertainment and public amusement venues, schools, institutions of higher education (except for remote learning, critical research, and other essential functions involving groups of no more than 10 people), and overnight summer camps, however, will continue to remain closed. In addition, beaches will continue to remain accessible for exercise (such as jogging) and fishing only. Similarly, state parks will generally remain open for day use only.
Violations of the Order are punishable as a Class I demeanor, and the Virginia Health Commissioner is authorized to seek injunctive relief to bring businesses into compliance.
Essential retail businesses may remain open during their normal business hours. These businesses are required, however, to provide face coverings to their employees. Executive Order 61 includes the following categories of essential retail businesses:
- Grocery stores, pharmacies, and other retailers with grocery or pharmacy operations (such as dollar stores and department stores with such operations);
- Medical, laboratory, and vision supply retailers;
- Electronic retailers that sell or service cell phones, computers, tablets, and other communications technology;
- Automotive parts, accessories, and tire retailers as well as automotive repair facilities;
- Home improvement, hardware, building material, and building supply retailers;
- Lawn and garden equipment retailers;
- Beer, wine, and liquor stores;
- Retail functions of gas stations and convenience stores;
- Retail located within healthcare facilities;
- Banks and other financial institutions with retail functions;
- Pet and feed stores;
- Printing and office supply stores; and
- Laundromats and dry cleaners.
In addition, all businesses will be expected to apply relevant workplace safety guidance from state and federal authorities. Businesses are also strongly encouraged to consider permitting telework by employees where doing so does not impose undue hardship.
While Executive Order 61 is scheduled to remain in effect through June 10, 2020, the governor has previously stated that Phase I will remain in effect until the administration confirms a further downward trend over 14 days in the percentage of positive COVID-19 tests before shifting to Phase II. Daily reports tracking this percentage and other data are being posted on the Virginia Department of Health’s (VDH) website beginning on May 5, so employers or anyone else who is interested may track them independently. As a result, there is a dynamic time frame for Phase I that may well be adjusted depending on what the scientific data show.
During Phase II, face coverings will continue to be recommended, though the limit on social gatherings will be relaxed from a 10-person maximum to a 50-person maximum. Phase II will also carry a stay-at-home directive for vulnerable populations.
The governor has also indicated that there will be “[f]urther easing” of restrictions on businesses during Phase II, though the specific measures being eased have not yet been identified. The Commonwealth will, however, continue to encourage physical distancing requirements to the extent possible, telework (where doing so does not impose undue hardship), and face masks for employees.
Once it begins, Phase II also is currently projected to last two to four weeks, but could last longer. Before shifting to Phase III, the Commonwealth’s task force is looking to confirm there is no evidence of a rebound (uptick) in COVID-19 cases for a sustained period of time, though the governor has not specifically defined what constitutes a “sustained period of time.”
During Phase III, which the governor indicated is currently not expected to begin until at least 10 to 12 weeks from now:
- The ban on social gatherings will be lifted;
- There will no longer be a capacity limit on any business establishment (e.g., movie theaters, concert venues, and sports stadiums and arenas);
- Vulnerable populations will follow the general population in shifting from a stay-at-home directive to a safer-at-home directive; and
- Businesses will be expected to continue their heightened cleaning measures such as enhancing their sanitizing practices on common surfaces.
There is also a possibility that other measures could be taken during Phase III.
Throughout this time, Virginia employers should remember that all preexisting employment-related federal and Virginia statutes and regulations continue to apply and require compliance during the COVID-19 pandemic. For example, employers considering furloughs or layoffs as a result of the COVID-19 crisis must remember the federal Worker Adjustment and Retraining Notification (WARN) Act, if applicable, and ensure that required notices are issued. Employers in the Commonwealth should also remain mindful of the federal Occupational Safety and Health (OSH) Act, which requires them to provide a safe workplace free from serious recognized hazards, as well as wage and hour laws that may come into play when adjusting employee pay in response to the current crisis. Employers facing the unique circumstances presented by the pandemic should consult counsel for guidance in complying with these laws.