Virginia Governor Ralph S. Northam recently issued Executive Orders 61 and 62 setting forth Phase One of the "Forward Virginia" plan for easing restrictions on certain business operations that were put in place in response to the novel coronavirus or COVID-19. Executive Order 61 provides that the Phase One easing of restrictions will begin on May 15, 2020 for Virginia businesses located in regions other than Northern Virginia, and Executive Order 62 provides that Phase One will begin for businesses in the Northern Virginia region 1 on May 29, 2020 to allow localities in Northern Virginia additional time to meet the required public health metrics for easing restrictions.
Additionally, in connection with these Executive Orders, Virginia has issued Guidelines for All Business Sectors, setting forth certain best practices for all businesses in Virginia during the Phase One period, and has issued certain mandatory requirements and best practices during Phase One for businesses in defined sectors, including restaurants and other dining establishments, farmers markets, brick-and-mortar retail businesses, fitness and exercise facilities, personal care and grooming services, and campgrounds.
Phase One Easing of Business Restrictions
All Businesses
During Phase One, all businesses in Virginia should adhere to the best practices set forth in the Guidelines for All Business Sectors (a copy of which is included here). These Guidelines include best practices for physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety, and they list CDC resources that provide additional guidance. Executive Order 62 encourages businesses in Northern Virginia that are operating prior to the commencement of Phase One on May 29, 2020 to follow the Guidelines for All Business Sectors as best practices.
Restaurants, Dining Establishments, Food Courts, Breweries, Microbreweries, Distilleries, Wineries, and Tasting Rooms
During Phase One, restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, and tasting rooms may provide delivery, take-out, and outdoor dining and beverage services only. These businesses must comply with the Guidelines for All Business Sectors and sector-specific guidance for restaurant and beverage services (a copy of which is included here). The guidance for restaurant and beverage services sets forth certain mandatory requirements, including the following:
- Occupancy may not exceed 50% of the lowest occupancy load listed on the certificate of occupancy.
- No more than 10 patrons may be seated as a party.
- Tables at which dining patrons are seated must be positioned six feet apart from other tables. If tables are not movable, parties must be seated at least six feet apart.
- No self-service of food (except beverages), including condiments, is permitted. Condiments should be removed from tables and dispensed by employees upon the request of a customer. Buffets must be staffed by servers, and self-service beverage areas must use beverage equipment designed to dispense by a contamination-free method.
- Single-use disposable menus must be used and discarded after use by a customer.
- Bar seats and congregating areas of restaurants must be closed to patrons, except for through traffic.
- Employees working in customer-facing areas must wear face coverings over their nose and mouth at all times.
- 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 between patrons.
Businesses that cannot comply with all of the mandatory requirements must close. The guidance for restaurant and beverage services also provides certain best practices, including recommended practices regarding face coverings for customers, methods for making point-of-sale terminals safer, utilizing reservations for dining on the premises, scheduled closure periods throughout the day to allow for cleaning and disinfecting, and additional considerations for take-out and delivery services.
Farmers Markets
Farmers markets may reopen during Phase One, provided that such businesses comply with the Guidelines for All Business Sectors and sector-specific guidance for farmers markets (a copy of which is included here). The guidance for farmers markets sets forth certain mandatory requirements, including the following:
- On-site shopping is allowed, subject to physical distancing guidelines. Operations must be configured to avoid congestion or congestion points.
- Employees and vendors in customer-facing areas must wear face coverings over their nose and mouth at all times.
- Vendors must supply hand sanitizer stations or hand washing stations for patrons and employees.
- A thorough cleaning and disinfection of frequently contacted surfaces must be conducted.
Farmers market businesses that cannot comply with each of the mandatory requirements must close. The guidance for farmers markets also provides certain best practices, including recommended practices regarding face coverings for customers, the bagging or boxing of food items, and the types of products offered.
Non-Essential Brick-and-Mortar Retail Businesses
Non-essential brick-and-mortar retail businesses may operate during Phase One, provided that such businesses comply with the Guidelines for All Business Sectors and sector-specific guidance for brick-and-mortar retail (a copy of which is included here). The guidance for brick-and-mortar retail sets forth certain mandatory requirements, including the following:
- Occupancy must be limited to no more than 50% of the lowest occupancy load listed on the certificate of occupancy.
- Retailers must assist customers in keeping at least six feet of space between individuals or households while shopping and waiting in line.
- Meeting rooms and other enclosed spaces, such as fitting rooms, should be closed to customers.
- Stations providing food and drink samples must be eliminated, and no self-service of food (except beverages), including condiments, is permitted. Self-service beverage areas must use beverage equipment designed to dispense by a contamination-free method.
- Employees working in customer-facing areas must wear face coverings over their nose and mouth at all times.
- A thorough cleaning and disinfection of frequently contacted surfaces, including digital ordering devices, self-service areas, countertops, bathroom surfaces, cashier stations, shelves, cash machine pads, keyboards, order separation bars, and other high-touch surfaces, must be conducted, at a minimum, every two hours.
Non-essential brick-and-mortar retail businesses that cannot comply with each of the mandatory requirements must close. The guidance for brick-and-mortar retail also provides certain best practices, including recommended practices regarding face coverings for customers, the management of customer movement, the reservation of certain hours for senior citizens and other high-risk populations, and the use of a reservation system to schedule customer visits.
Fitness and Exercise Facilities
During Phase One, fitness centers, gymnasiums, recreation centers, sports facilities, and exercise facilities may reopen for outdoor activities only. Indoor activities for these businesses remain prohibited. These businesses must comply with the Guidelines for All Business Sectors and sector-specific guidance for fitness and exercise facilities (a copy of which is included here). The guidance for fitness and exercise facilities sets forth certain mandatory requirements, including the following:
- Patrons, members, and guests must remain at least 10 feet apart during all activities, and all group outdoor activities may not have more than 10 guests, patrons, or members.
- Hot tubs, spas, splash pads, spray pools, and interactive play features must be closed. Outdoor swimming pools may be open for lap swimming only and must be limited to one person per lane.
- Employees working in customer-facing areas must wear face coverings over their nose and mouth at all times.
- Employers must ensure cleaning and disinfection of shared equipment after each use.
- Facilities must prohibit the use of any equipment that cannot be thoroughly disinfected between uses, such as climbing ropes or exercise bands.
- Businesses must supply hand sanitizer stations or hand washing stations for patrons, members, and guests.
Businesses that cannot comply with all of the mandatory requirements must close. The guidance for fitness and exercise facilities also provides certain best practices, including recommended practices regarding face coverings for patrons and the use of towels and linens.
Personal Care and Personal Grooming Services
During Phase One, beauty salons, barbershops, spas, massage centers, tanning salons, tattoo shops, and any other business providing personal care or personal grooming services may reopen, provided that such businesses comply with the Guidelines for All Business Sectors and sector-specific guidance for personal care and personal grooming services (a copy of which is included here). The guidance for personal care and personal grooming services sets forth certain mandatory requirements, including the following:
- Occupancy may not exceed 50% of the lowest occupancy load listed on the certificate of occupancy.
- There must be at least six feet of physical distancing between work stations and only one appointment per service provider at a time.
- Businesses must maintain physical distancing of at least six feet within the waiting area and use staggered appointments to minimize the number of individuals congregating in the waiting area and to allow time to disinfect work stations and tools between clients.
- 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 clients to bring their own face covering. Clients must wear the face covering during the service, and services must be limited to 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 during operation. All personal care and personal grooming tools must be cleaned and disinfected after every use or discarded.
Businesses that cannot comply with all of the mandatory requirements must close. The guidance for personal care and personal grooming services also provides certain best practices, including recommended practices regarding the provision of hand sanitizer; removal of non-essential items such as magazines, self-serve coffee, and candy jars; use of towels, capes, and linens; and limiting to the greatest degree possible close, direct face-to-face contact with clients.
Essential Retail Businesses
The essential retail businesses listed below may continue to operate during normal business hours during Phase One. These essential retail businesses should comply with the Guidelines for All Business Sectors, and employers must provide face coverings to employees. The essential retail businesses include the following:
- grocery, pharmacy, and other retailers that sell food and beverage products or pharmacy products, including dollar stores and department stores with grocery or pharmacy operations;
- medical supply retailers;
- electronic retailers that sell or service cell phones, computers, tablets, and other communications technology;
- automotive parts, accessories, and tire retailers;
- 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.
Businesses That Must Remained Closed
The following recreational and entertainment businesses in Virginia must remain closed to the public during Phase One:
- theaters, performing arts centers, concert venues, museums, and other indoor entertainment centers;
- racetracks and historic horse racing facilities; and
- bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, arts and craft facilities, aquariums, zoos, escape rooms, public and private social clubs, and all other places of indoor public amusement.
Enforcement
The Virginia Department of Health and any other agency with regulatory authority over a business covered by the Phase One Executive Orders has authority to enforce the Executive Orders, and any willful violation or refusal, failure, or neglect to comply is punishable as a Class 1 misdemeanor under Virginia law. Additionally, the State Health Commissioner may seek injunctive relief in circuit court for any violation of the Executive Orders.
Additional Information
Venable will continue to monitor actions the Commonwealth of Virginia is taking in response to COVID-19, and we are available to offer clients guidance and support as we collectively navigate these challenging times.
Footnote
1 The Northern Virginia region includes the counties of Arlington, Fairfax, Loudon, and Prince William; the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park; and the towns of Dumfries, Herndon, Leesburg, and Vienna.