COVID-19 Legal Update: Virginia Executive Order Nos. 53 and 55

April 1, 2020

THIS COVID-19 LEGAL UPDATE ADDRESSES VIRGINIA GOVERNOR RALPH NORTHAM’S EXECUTIVE ORDERS NOS. 53 & 55.

In the final two weeks of March, 2020 Virginia’s Governor, Ralph Northam, issued two Executive Orders to limit certain activities within the Commonwealth of Virginia to mitigate the impact of COVID-19.  Governor Northam issued Executive Order 53 on March 23, 2020 and Executive Order 55 on March 30, 2020.

For your convenience, please click the highlighted links to access: (1) Executive Order 53; (2) Executive Order 55; and (3) a list of Frequently Asked Questions (FAQs) pertaining to both Executive Orders 53 and 55 provided by the Office of the Governor.

 

EXECUTIVE ORDER 53 – TEMPORARY RESTRICTIONS ON CERTAIN BUSINESSES

Duration:

Executive Order 53 went into effect at 11:59 p.m. on Tuesday, March 24, 2020.  Executive Order 53 expires at 11:59 p.m. on June 10, 2020, unless the Governor rescinds or amends it sooner.

General Requirements:

  • No gatherings of 10 or more people.
  • Public and private K-12 schools are suspended for the duration of the 2019/2020 school year. Childcare providers may remain open if they limit groups to 10 people or less and adhere to certain guidelines issued by the Virginia Departments of Social Services and Education.
  • All businesses that remain open must implement social distancing and follow the Occupational Health and Safety Act (“OSHA”) Guidance and Center for Disease Control (“CDC”) COVID-19 Recommendations related to sanitation and employee safety.
    • Social distancing is defined by the CDC to mean avoiding events where groups of people interact in close proximity (“congregate settings”), avoiding mass gatherings, and maintaining distances of approximately 6 feet from others when possible.

Retail Business Restrictions:

  • Food/beverage establishments must close their dine-in areas. Food/beverage establishments may offer delivery and take-out services.
  • Entertainment businesses such as theaters, concert venues, museums, gyms, barbershops/salons, bowling alleys, indoor entertainment businesses, and social clubs must close entirely.
  • Other non-entertainment retail businesses (not listed in Executive Order 53 as an essential business) must adhere to social distancing guidelines, restrict access to fewer than 10 patrons at a time, and other workplace guidance from OSHA and the CDC.
  • Essential businesses may remain open without limiting the number of patrons to 10 at a time, but must adhere to social distancing recommendations, enhanced sanitation practices, and other workplace guidance from OSHA and the CDC. Remember, although there is no number limit by the state, CDC recommends “no congregate settings.”
    • Essential businesses include: grocery stores, pharmacies, electronics retailers, vision/medical supplies retailers, automotive retailers/repair shops, home improvement/lawn and garden stores, gas stations, convenience stores, retail centers within healthcare centers, banks, pet supply stores, office supply stores, and laundromats/dry cleaners. Please see Paragraph 5 of Executive Order 53 for a complete list of essential businesses.
    • If a retail business is unsure whether or not it is considered essential under Executive Order 53, the Governor recommends adhering to the 10-patron limit.

Non-Retail Entities May Stay Open:

  • Non-retail businesses offering professional services may remain open. Professional services businesses must utilize teleworking if practicable.  Examples of professional services businesses include: legal offices, insurance brokerages, real estate offices, accountants, tax preparation services, financial services, engineering firms, architecture firms, etc. Any professional services business that maintains an operational location is not required to limit the number of employees to 10, but must adhere to social distancing guidance and recommendations.  Remember, although there is no number limit by the state, CDC recommends “no congregate settings.”
  • Healthcare facilities, law enforcement agencies, governmental entities, and essential services for impoverished people (such as food banks) are not affected by Executive Order 53.
    • The Governor’s office recommends cancelling non-essential medical treatment or remote video treatment where feasible.

Enforcement:

  • Businesses who fail to comply with Executive Order 53 may be charged with a Class 1 misdemeanor.

Taxes:

  • Businesses may request to defer the payment of state sales tax, due March 20, 2020, for 30 days. When granted, businesses will be able to file on or before April 20, 2020.
  • The due date for payment of Virginia corporate income taxes is extended to June 1, 2020. Interest, however, will still accrue on amounts owed to the Commonwealth, so payment by the original deadline is recommended.

Process for Requesting a Waiver:

  • Although Executive Order 53 does not specifically address waivers, our firm can advise on how/whether to petition the Governor’s office and/or to file an emergency injunction in state court if you believe Executive Order 53 inappropriately restricts your operations.

 

EXECUTIVE ORDER 55 – TEMPORARY STAY AT HOME ORDER

Duration:

Executive Order 55 went into effect at 11:59 p.m. on Tuesday, March 30, 2020.  Executive Order 55 expires at 11:59 p.m. on June 10, 2020, unless the Governor rescinds or amends it sooner. 

General Requirements:

  • All individuals in Virginia shall remain at their place of residence unless they leave for an essential purpose, which includes leaving their residence to:
    • obtain food, beverages, goods, or services at the businesses still operating in accordance with Executive Order 53;
    • seek medical attention, social services, governmental services, assistance from law enforcement, or emergency services;
    • take care of a family member or animal, or to visit family;
    • travel required by court order or to facilitate child custody or care;
    • engage in outdoor activity, including exercise, subject to the social distancing requirements;
    • travel to a place or worship or work;
    • travel to and from an educational institution;
    • volunteer with a charitable organization; and
    • leave at the direction of law enforcement, a governmental agency, or out of fear for health or safety.

Other Restrictions:

  • Social gatherings, both public and private, of 10 or more people are explicitly prohibited.
    • Prohibition does not apply to households with more than 10 family members and does not impact businesses operating in accordance with Executive Order 53.
  • Educational institutions must cancel all in-person gatherings of ten or more people, including classes.
  • Public beaches are closed to all activities except fishing and exercising.
  • Campgrounds must stop taking reservations for overnight stays less than 14 days.

Enforcement:

  • Violating the prohibitions of Executive Order 55 is a Class 1 misdemeanor.
    • This applies to both individuals and businesses.

How Does Executive Order 55 Change Executive Order 53?

  • Executive Order 55 does not change the business restrictions outlined in Executive Order 53.
  • Executive Order 55 does:
    • extend the duration of Executive Order 53 to June 10, 2020;
    • impose a criminal penalty on individuals who violate the prohibitions, not just businesses;
    • explicitly prohibit gatherings of 10 or more people;
    • direct every educational institution to cancel in-person classes; and
    • impose travel restrictions on individuals, although individuals may still travel for an essential service as defined by Executive Order 53.

 

OPERATING YOUR BUSINESS DURING THE PANDEMIC

Business Compliance in Light of Both Executive Orders 53 & 55:

  • Businesses may still operate in accordance with Executive Order 53.
  • Individuals may travel to operating businesses to seek goods and services.
  • Employees can travel for work.
    • Employers may want to consider providing their essential employees with a letter, on company letterhead, stating that his/her physical presence at work and/or travel for work is essential.

Business Liability During a Pandemic:

  • Any business that remains open must adhere to the recommendations issued by OSHA, CDC, and local health departments regarding sanitation, social distancing, and isolation of persons exhibiting flu-like symptoms. Failing to adhere to these baseline recommendations exposes a business to claims from patrons or employees who contract COVID-19 that the business failed to take reasonable precautions to keep them safe. 
  • Additionally, as of the date of this Alert, there is no statement from the Worker’s Compensation Commission that employees who contract COVID-19 in the workplace cannot file claims for workers’ compensation benefits. Under current rules, in order to prevail, the employee (claimant) bears the burden to prove that performance of his/her job duties caused a heightened risk of him/her contracting COVID-19 compared to the public and/or that he/she actually contracted the virus at work.  No employer can eliminate the risk of an employee contracting COVID-19, or prevent the risk of someone filing a claim.  Therefore, strict adherence to the recommended best practices for sanitation, social distancing, and isolation will minimize the likelihood of, and provide the best defense to, such a claim. 
  • Businesses should contact their liability and workers’ compensation insurance carriers to ensure that operating during a pandemic does not violate provisions of their policies.

 Business Loans and Insurance Options:

  • The recently-passed CARES Act allocates $350 billion in funds to loan to small and mid-sized businesses in need. In many cases, these federal loans are forgivable. 
    • For more information, please see the Eckert Seamans Legal Update regarding Small Business Options under the CARES Act.
    • Small businesses interested in applying for a loan under the CARES Act should contact their bank or lender immediately.
  • Virginia small business owners may also consider applying to the Small Business Administration (“SBA”) for an Economic Injury Disaster Loan (“EIDL”), a low-interest loan for small businesses that have suffered economic injury from COVID-19.
    • Small business owners in Virginia interested in a loan EIDL should contact their local SBA branch office immediately. The SBA predicts it will receive a high number of applications in the coming weeks.
  • Businesses that carry business interruption insurance should contact their insurance carrier’s immediately to develop a strategy for filing a COVID-19 claim.

 

Click here to view a downloadable PDF of the COVID-19 Legal Update.

 

This COVID-19 Legal Update is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions, please contact authors Karen S. Elliott at 804.788.7762 or kelliott@eckertseamans.com, Matthew B. Kirsner at 804.788.7744 or mkirsner@eckertseamans.com, Brendan C. Horgan at 804.788.7769 or bhorgan@eckertseamans.com, Cody T. Murphey at 804.788.7765 or cmurphey@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.

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Authors

Matthew B. Kirsner Photo Richmond

Matthew B. Kirsner

Member-in-Charge - Richmond

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