Virginia Prepares to Enter “Phase Two” of its Reopening Plan Everywhere Except Northern Virginia and Richmond

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On June 2, 2020, Virginia Governor Ralph Northam issued Executive Order 65 and Order of Public Health Emergency Six (“Executive Order 65”), which is set to take effect at 12:00 a.m. on Friday, June 5, 2020. In entering the Order, the governor cited “remarkable progress” in addressing the COVID-19 pandemic over the past several weeks. According to the governor, COVID-19 testing capabilities in the Commonwealth increased, hospital bed capacity and supplies of personal protective equipment (PPE) remained steady, and both the number of COVID-19-related hospitalizations and percentage of positive tests decreased on a statewide level.

Under Executive Order 65, Virginia’s temporary stay-at-home order will expire at 11:59 p.m. on Thursday, June 4, 2020 across the entire Commonwealth. In addition, the vast majority of Virginia’s counties, cities, and towns will enter “Phase Two” of that state’s previously outlined three-phase reopening protocol on Friday, June 5, 2020. (Elsewhere in the region, Maryland is also entering “Phase Two” of its own reopening plan on June 5, while the District of Columbia is in the first phase of its reopening.)

Virginia’s entry into Phase Two is not statewide, however. Two of the state’s most populous areas – the Northern Virginia Region and the City of Richmond – which delayed entering Phase One until May 29, will remain in Phase One for the time being.1

Executive Order 65 eases restrictions on a wide variety of businesses and faith-based services. The Order also incorporates Phase Two Guidelines for All Business Sectors, which the governor offers as best practices for all businesses.

Generally, Executive Order 65 allows businesses to expand to up to 50% occupancy (i.e., 50% of the lowest occupancy load on the certificate of occupancy, where applicable), while still requiring employees in customer-facing areas to wear face coverings at all times and requiring that individuals maintain separated by at least six feet. That said, heightened requirements apply to certain business sectors. More specifically, once the Order takes effect:

  • Non-essential brick and mortar retail businesses remain under the same requirements as in Phase One.
  • Restaurants, breweries, and beverage services, including dining establishments, food courts, microbreweries, distilleries, wineries, and tasting rooms, may expand from outdoor-only service (along with delivery and carry-out services) to both indoor and outdoor service. The total number of patrons, however, may not exceed: (a) 50 people; or (b) 50% occupancy, if applicable, whichever is less. Tables must be positioned (or, if tables are not movable, parties must be moved) at least six feet apart. Condiments must continue to be available only upon request and dispensed by employees, and bar seating must continue to be closed. Tabletops, chairs, and credit card/bill folders must be cleaned in between patrons, and all frequently contacted surfaces must be cleaned and disinfected at least once every hour during operation.
  • Farmers markets remain under the same requirements as in Phase One.
  • Gyms and fitness centers (including recreation centers, sports facilities, and exercise facilities) may expand from outdoor-only activities to both indoor and outdoor activities, with specific guidelines. All individuals (whether instructors, patrons, members, or guests) must maintain remain separated by at least 10 feet at all times. The total number of patrons may not exceed: (a) 50 patrons, members, and guests; or (b) 30% of the lowest occupancy load on the certificate of occupancy, if applicable, whichever is less. Both indoor and outdoor swimming pools may open for lap swimming, diving, exercise, and instruction only, with no more than three people per lane and at least 10 feet of distance between each swimmer. Other aquatic areas (hot tubs, spas, splash pads, spray pools, and interactive play features), however, must remain closed. Businesses must supply stations for patrons, members, and guests to wash or sanitize their hands. And facilities must ensure that shared equipment is cleaned and disinfected (and equipment that cannot be thoroughly disinfected between uses, such as climbing ropes and exercise bands, may not be used).
  • Personal care and personal grooming services such as beauty salons, barbershops, spas, massage centers, tanning salons, and tattoo shops may expand to accommodate up to: (a) two appointments per service provider at a time; or (b) 50% occupancy, whichever is lower. Such services must either provide face coverings for customers to wear or ask that customers bring and wear their own face covering. Services that cannot be completed without removing face coverings (e.g., men’s facial shaving at a barbershop) remain prohibited. Personal care and personal grooming tools must either be discarded or cleaned and disinfected after each use, and frequently contacted surfaces (e.g., tanning beds) must be thoroughly cleaned and disinfected at least once every hour.
  • Places of worship must generally adhere to the same requirements as in Phase One. In addition, places of worship must post signage both (a) at the entrance stating that no one with a fever or symptoms of COVID-19 is permitted in the establishment and (b) at the entrance and/or in the establishment that provides public health reminders regarding social distancing, gatherings, options for high risk individuals, and staying home if sick.
  • Private campgrounds remain under the same requirements as in Phase One.
  • Indoor shooting ranges must use, at most, every other lane to achieve physical distancing. Management must either thoroughly clean shared or borrowed equipment in between uses, or it may exclusively require customers to bring their own equipment. Regardless, all frequently contacted surfaces must be cleaned and disinfected at least once every 60 minutes that the business is open, and all equipment must be disinfected between each customer use. Equipment that cannot be thoroughly disinfected is prohibited.
  • Outdoor racetracks may open for racing events, although only people essential to the operation of those events may attend, while observing physical distancing. Tailgating and camping are not allowed, nor may concessions, food sales, merchandise sales, hospitality, fan experiences, or any other vendors open.
  • Many outdoor recreational and entertainment businesses, including outdoor performing arts, concert, or sports venues, outdoor movie theaters, museums, aquariums, zoos, and botanical gardens, may reopen in limited fashion. Indoor recreational and entertainment businesses, however, such as indoor theaters, indoor performing arts centers, concert venues, historic horse racing facilities, bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, carnivals, arts and craft facilities, escape rooms, and other places of indoor public amusement, must still remain closed.

At outdoor businesses permitted to reopen, the total number of attendees may not exceed: (a) 50 people; or (b) 50% of the occupancy load of the venue, whichever is less. Visible markers separating people by six feet must be installed in queue lines (e.g., ticket lines), and sneeze guards should be installed, where possible, in front of commonly used point-of-sale or guest service stations. In addition, venues must create a “guest flow plan” that determines areas within the venue that are likely to become bottlenecks or pinch points for larger gatherings and attempt to adjust traffic patterns. Venues must also supply stations for guests and employees to wash or sanitize their hands. Businesses must thoroughly clean and disinfect frequently contacted surfaces, including digital ordering devices, check presenters, self-service areas, tabletops, bathroom surfaces, and common touch areas at least once every 60 minutes during operation.

  • Public and private social clubs may reopen and may hold social gatherings of no more than 50 people.
  • Both indoor and outdoor recreational sports are permitted, with certain restrictions. All individuals (whether instructors, participants, or spectators) must maintain at least 10 feet of physical distance between one another at all times, unless they are members of the same household. Competition that involves close contact with other athletes (e.g., football and rugby) must be avoided. The total number of attendees (including both participants and spectators) at both indoor and outdoor sporting events may not exceed the lesser of: (a) 50 people; or (b) 30% of the occupancy load of the venue for indoor events and 50% of the occupancy load of the venue for outdoor events. Spectators other than children’s caretakers (whether parents, guardians, or others) may not attend indoor recreational sports.

Public beaches, which were permitted to open for individual and family recreational activity, in addition to exercise and fishing, on May 29, 2020, may remain open, although gatherings of over 50 people are prohibited and spaces, activities, and items that attract gatherings (e.g., playsets, picnic areas, tents, and groupings of umbrellas) may not be used.

Institutions of higher education are encouraged to continue remote learning where practical, though they may offer in-person instruction for classes of no more than 50 people.

Overnight summer camps remain closed.

Essential retail businesses2 and other business sectors not explicitly mentioned in Executive Order 65 should adhere to the Phase Two Guidelines for All Business Sectors.

Violations of Executive Order 65, like violations of the Phase One-related orders, are treated as a Class 1 misdemeanor, and the Virginia Health Commissioner may seek injunctive relief to bring businesses into compliance.

 

Footnotes

1 Executive Order 61, as amended, remains in full force and effect in both the City of Richmond and the Northern Virginia Region, which comprises four counties (Arlington, Fairfax, Loudoun, and Prince William), five cities (Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park), and four towns (Dumfries, Herndon, Leesburg, and Vienna).

2 As in Phase One, “essential retail businesses” are defined to include:

  • 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.

Essential retail businesses must provide face coverings to employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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