On December 10, 2020, Virginia Governor Ralph Northam and State Health Commissioner Norman Oliver issued Executive Order 72 and Order of Public Health Emergency 9, a new 19-page Order imposing modified stay at home requirements, tightened business restrictions, and enhanced face covering requirements. Beyond tightening restrictions, the Order also outlines a wide-range of enhanced enforcement mechanisms and penalties. The Order becomes effective December 14, 2020 and is set to expire on January 31, 2021 (This new Order replaces earlier Executive Order 63/Public Health Order 5 and Executive Order 67/Public Health Order 7, both which will now expire December 13).
The same day, the Department of Labor and Industry (DOLI) announced a revised draft Permanent Standard for Infectious Disease Prevention with public comment open from December 10, 2020 to January 9, 2021. The current DOLI regulations issued in July 2020 are set to expire January 27, 2021.
Modified stay at home order & further limits on gatherings
The Order imposes a modified stay at home requirement for individuals to stay in their homes from midnight until 5:00 AM, subject to certain exceptions, including obtaining permitted goods and services, traveling to and from work, and leaving for emergency reasons. While not explicitly clear, the Order does not appear to prohibit an employee from attending work to the extent the business is permitted to operate during such hours. The Order also imposes a 10-person limit on public and private in-person gatherings (excluding persons living in same residence), but the Order explicitly carves out from the definition of a “gathering” both employment and presence in retail businesses.
Enhanced business restrictions
The Order specifically establishes various enhanced occupancy, operational, and cleaning requirements for on restaurants and related food/drink establishments, farmers’ markets, brick and mortar retail, gyms, personal care/grooming, campgrounds, indoor shooting ranges, public beaches, racetracks and speedways, large outdoor amusement parks and zoos, entertainment and amusement businesses, and recreational facilities. For both essential and non-essential businesses, the Order continues to incorporate the Phase 3 Guidelines for Business as a best practice and also authorizes the Virginia Department of Health, Alcoholic Beverage Control Authority, State Health Commissioner, Department of Professional and Occupational Regulation, Department of Agriculture and Consumer Services, and DOLI to enforce the business requirements with a patchwork of criminal and civil authorities.
Enhanced face covering requirements
Perhaps most noteworthy, the Order expands existing face covering requirements to now broadly require face coverings indoors (removing limiting language only requiring indoor face coverings where social distancing was not possible or duties were customer-facing) and also now requires face coverings outdoors (yet only where social distancing is not able to be maintained). The Order contains an explicit requirement that employees wear a face covering while working at their place of employment.
The face covering requirements do not apply to individuals under the age of 5. Also, the Order provides a variety of exceptions to the face-covering requirement, including while eating or drinking, exercising or using exercise equipment, and for persons with health conditions or disabilities that prohibit wearing a face covering. Employers should be mindful that the Order expressly prohibits requiring documentation from a person who declines to wear a face covering due to a medical condition and also prohibits requiring such person to identify the precise underlying medical condition. The Order also waives Va. Code § 18.2-422 until March 12, 2021, which imposes criminal penalties for wearing a mask in public.
Interaction with DOLI emergency temporary regulations
The Order states that to the extent any conflicts exist with the current DOLI regulations, the Order governs. The current DOLI regulations are set to expire in late January 2021 and DOLI has published permanent regulations for review and comment.
Virginia employers should review these updated requirements immediately to determine whether their operations are impacted. If you have any questions on these requirements or other questions with respect to your workforce related to COVID-19, please contact Betty S. W. Graumlich at firstname.lastname@example.org, Mark Passero at email@example.com, or Noah Oberlander at firstname.lastname@example.org.