On May 8, 2020, Virginia Governor Ralph Northam issued Executive Order 61 outlining Phase One of the commonwealth’s plan to gradually ease temporary public health and business restrictions related to COVID-19, effective May 15, 2020, through at least June 10, 2020. Since issuing Executive Order 61, however, Governor Northam issued Executive Order 62 delaying this reopening for the following jurisdictions through at least May 28, 2020: the counties of Arlington, Fairfax, Loudoun, and Prince William, the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, and the Towns of Dumfries, Herndon, Leesburg, and Vienna. The order stated that the Northern Virginia region has about a 25-percent rate of positive tests for COVID-19, while the rest of the commonwealth is closer to 10 percent. In addition, just hours before reopening was set to take effect, Governor Northam amended Executive Order 62 to also exclude the City of Richmond and the County of Accomack from the May 15 reopening.
The Executive Orders outline the following Phase One requirements for Virginia (except for the excluded counties):
All businesses should comply with Governor Northam’s published Guidelines for All Business Sectors and any sector-specific guidance detailing social distancing and operational best practices.
Essential retail businesses may continue operating during normal business hours, but must provide face coverings to employees. Non-essential retail businesses may now operate at no more than 50 percent of their lowest certified occupancy and employees working in customer-facing areas must wear face coverings over their nose and mouth at all times. These businesses are also explicitly required to comply with Governor Northam’s Guidelines for All Business Sectors and sector-specific guidance.
Restaurants and beverage establishments
Restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, and tasting rooms may now operate outdoor dining and beverage services at no more than 50 percent of their lowest certified occupancy and may continue delivery and take-out services. In addition to the governor’s Guidelines for All Business Sectors and sector-specific guidance, these businesses must comply with the following operational requirements:
- Employees working in customer-facing areas must wear face coverings over their nose and mouth at all times.
- No more than 10 patrons may be seated as a party.
- Tables at which dining parties are seated must be positioned 6 feet apart from other tables. If tables are not movable, parties must be seated at least 6 feet apart.
- No self-service of food (except beverages), including condiments. Condiments should be removed from tables and dispensed by employees upon the request of a customer.
- Bar seats and congregating areas of restaurants must be closed to patrons except for through-traffic.
- A thorough cleaning and disinfection of frequently contacted surfaces must be conducted every 60 minutes during operation. Tabletops, chairs, and credit card/bill folders must be cleaned in between patrons.
Personal grooming services
Businesses providing personal care or personal grooming services may operate at no more than 50 percent of their lowest certified occupancy with at least 6 feet of physical distancing between work stations and only one (1) appointment per service provider at a time. In addition to Governor Northam’s Guidelines for All Business Sectors and sector-specific guidance, these businesses must comply with the following operational requirements:
- Service providers and employees working in customer-facing areas must wear face coverings over their nose and mouth at all times.
- Businesses must provide face coverings for clients or ask that clients bring a face covering with them, which they must wear during the service. Businesses must limit services to only those that can be completed without clients removing their face covering.
- A thorough cleaning and disinfection of frequently contacted surfaces must be conducted every 60 minutes in operations, while cleaning and disinfecting all personal care and personal grooming tools after each use. If that is not possible, such items must be discarded.
Other business sectors
While indoor fitness and exercise facilities are required to remain closed, outdoor activities at these facilities may begin on a restricted basis, subject to detailed operational limitations, and in compliance with Governor Northam’s Guidelines for All Business Sectors and sector-specific guidance. Farmers markets, campgrounds, and indoor shooting ranges may also reopen on a limited basis subject to significant restrictions outlined in Executive Order 61.
Continued business closures
Recreational and entertainment business, K-12 schools, institutions of higher learning, public beaches, and overnight summer camps must remain closed and numerous other restrictions from earlier orders remain (such as the stay-at-home requirement through at least June 10, 2020). See Executive Order 51; Executive Order 55. While in-person gatherings of more than 10 individuals continue to be banned, there is now a limited exception for attending religious services subject to mandatory social distancing practices.
Waiver of criminal mask prohibition
Importantly, Executive Orders 61 and 62 now provide a limited waiver of Virginia’s criminal prohibition on wearing masks (Va. Code § 18.2-422) so that individuals may wear a medical mask, respirator, or any other protective face covering to protect one’s personal health in response to COVID-19 without fear of criminal prosecution. The waiver is retroactive to March 12, 2020.
Virginia employers should review these requirements immediately to determine whether their operations may enter Phase One or are otherwise impacted. The commonwealth has also established a website with additional information for employers related to its “Forward Virginia” plan for phased reopening. If you have any questions on these requirements or other questions regarding your workforce related to COVID-19, please contact Betty Graumlich at firstname.lastname@example.org, Mark Passero at email@example.com, or the Reed Smith lawyer with whom you normally work.