On November 13, 2020, Governor Northam signed Executive Order 63 and Executive Order 67, updating the business operating guidelines issued earlier this year in response to Covid-19. Each order contains modifications to specific industry guidelines as well as general public restrictions and new enforcement measures. Significantly, as to enforcement measures, any willful violation or refusal, failure, or neglect to comply with these Orders has been deemed punishable as a Class 1 misdemeanor, which carries maximum jail time of 12 months and a maximum fine of $2,500.00. Although these new executive orders admittedly raise some questions for Virginia businesses that remain to be answered, these Orders focus primarily on imposing new duties on individuals, and not employers.  The revisions to the guidelines follow.

General Business Directives

  • All Businesses should adhere to the Phase 3 Guidelines for All Business Sectors,[1] which include but are not limited to enhanced cleaning procedures, posting of relevant signage around facilities, and social distancing guidelines.
  • All businesses are advised to familiarize themselves with the guidance and follow the outlined Best Practices guidelines for physical distancing, enhanced cleaning, and workplace safety as well as any industry specific instructions. The most notable changes are outlined below:

Industry Specific Guidelines

Restaurants, Dining Establishments, Food Courts, Breweries, Microbreweries, Distilleries, Wineries, and Tasting Rooms. In addition to compliance with Guidelines for All Business Sectors, these businesses are subject to the following new requirements:

  • No alcoholic beverage can be sold, consumed, or possessed on premises after 10:00 p.m.
    • Alcoholic beverages may continue to be sold via delivery or take-out as permitted by existing regulations.
  • Closure of all dining and congregation areas between the hours of 12:00 a.m. and 5 a.m.

Failure to comply with the requirements could result in criminal prosecution for a Class 1 misdemeanor.

Essential Retail. All businesses identified as “Essential Retail” must comply with the Guidelines for All Business Sectors or be required to close. Essential Retail includes the following businesses:

  1. Grocery stores, pharmacies, and other retailers that sell food and beverage products or pharmacy products, including dollar stores, and department stores with grocery or pharmacy operations;
  2. Medical, laboratory, and vision supply retailers;
  3. Electronic retailers that sell or service cell phones, computers, tablets, and other communications technology;
  4. Automotive parts, accessories, and tire retailers as well as automotive repair facilities;
  5. Home improvement, hardware, building material, and building supply retailers;
  6. Lawn and garden equipment retailers;
  7. Beer, wine, and liquor stores;
  8. Retail functions of gas stations and convenience stores;
  9. Retail located within healthcare facilities;
  10. Banks and other financial institutions with retail functions;
  11. Pet and feed stores;
  12. Printing and office supply stores; and
  13. Laundromats and dry cleaners.

Non-Essential Retail. In addition to complying with these Guidelines for All Business Sectors, employers and patrons of Non-Essential Retail businesses must:

  • Maintain at least 6 feet distance in the workplace.
  • Require that employees in customer-facing areas always wear masks.

If any such business cannot adhere to these requirements, it may be closed by the Virginia Department of Health. In addition, failure to comply with these conditions may result in criminal prosecution as a Class 1 misdemeanor.

Other Restrictions

All Public and Private In-Person Gatherings of more than 25 individuals are prohibited, excluding individuals performing functions of their employment, gathering in educational instructional setting, or religious services. As such, any non-work gatherings or gatherings unrelated to educational instruction or religious services in excess of 25 people, including gatherings of voluntary associations; family functions; nonprofit volunteer work; political meetings or demonstrations; or other activities are punishable as a Class 1 misdemeanor.

To avoid criminal punishment, all individuals should avoid gathering in groups of 25 or more, unless acting in the course and scope of employment or participating in educational instruction or religious services.

All individuals aged 5 and over must cover their mouth and nose with a face covering when spending any time inside any of the following businesses:

  • Personal care and grooming, all brick and mortar retail, food and beverage establishments, entertainment businesses, transportation stations and shared vehicles, and any other indoor place shared by groups of people.

This restriction does not apply within private residences. The twenty-five-person limitation on gatherings also does not apply to employees, employers, subcontractors, or other independent contractors in the workplace.

All businesses must post signage at the entrance of all indoor areas stating patrons must wear a cloth face covering in accordance with Executive Order 63.

Your Responsibilities and Liabilities: To avoid potential liability and the potential closing of your business for noncompliance, we recommend you undertake the following steps:

  • Ensure employees of your business are maintaining social distancing, wearing masks, and following enhanced cleaning procedures and industry specific directives outlined in the Guidelines For All Business Sectors updated November 13, 2020.
    • Many businesses sectors from restaurants and non-essential retail to amusement parks and campgrounds have additional best practice requirements.
  • Post signage at the entrance to your indoor spaces commanding compliance with the expanded mask mandate for all individuals ages 5 and over.
  • Avoid all gathering of 25 or more individuals which are not necessary for the performance of employment functions, educational instruction, or religious services.

If you need help understanding what these new orders mean for your business, please contact a Virginia member of O’Hagan Meyer’s Labor & Employment Practice Team, at (804) 403-7100 or (703) 775-8601.

Co-authored by: Joan McKenna, Esq. and C.J. Wittmann