NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

On March 30, 2020, Virginia Governor Ralph Northam issued Executive Order 55 (“the Order”), which incrementally increases the restrictions previously placed on Virginia businesses and residents in response to the current COVID-19 crisis. 

In Executive Order 53, which was issued on March 23, certain retail business were declared essential and allowed to remain open during normal business hours. This category included: grocery stores; pharmacies; medical, laboratory, and vision supply retailers; electronic retailers; automotive repair facilities; home improvement retailers; lawn and garden equipment retailers; beer, wine, and liquor stores; gas stations; convenience stores; banks and other financial institutions; pet and feed stores; printing and office supply stores; laundromats and dry cleaners; and retail located within healthcare facilities. That order also permitted non-essential brick and mortar retail businesses to continue operations if they could limit in-person shopping to no more than 10 patrons per establishment and comply with proper social distancing requirements. More information on Executive Order 53 is available here.

The Order builds upon that prior order by placing limits on potential retail patrons in Virginia. Specifically, pursuant to Executive Order 55, from March 30, 2020 through June 10, 2020, all Virginians are prohibited from leaving their homes except to:

• Obtain food, beverages, goods, or services as permitted in Executive Order 53;
• Seek medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services;
• Take care of other individuals or animals, or visit the home of a family member;
• Travel as required by court order to facilitate child custody, visitation, or child care;
• Engage in outdoor activity, including exercise (provided individuals comply with social distancing requirements);
• Travel to and from one’s residence, place of worship, or work;
• Travel to and from an educational institution;
• Volunteer with organizations that provide charitable or social services; and
• Leave one’s residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency.

Notably, there is no civil or criminal enforcement mechanism for the “stay at home” portion of the Order.

Executive Order 55 also requires the closure of all public beaches in Virginia for any activities other than exercising and fishing; the cessation of all reservations for overnight stays of less than 14 nights at privately-owned campgrounds in the Commonwealth; and the cessation of all in-person classes and instruction at institutions of higher education in the state. Additionally, all public and private in-person gatherings of more than 10 people are prohibited, except for the operation of businesses not required to close under Executive Order 53 and the gathering of family members living in the same residence. Violations of these provisions are punishable as Class 1 misdemeanors.

Virginia employers should remember that all preexisting employment-related federal and state statutes and regulations continue to apply and require compliance during the COVID-19 pandemic. For example, employers considering furloughs or layoffs as a result of the COVID-19 crisis must comply with the federal Worker Adjustment and Retraining Notification (WARN) Act, if applicable, and ensure that required notices are issued. Employers in the Commonwealth should likewise remain mindful of the federal Occupational Safety and Health Act (OSHA) requirements to provide a safe workplace free from serious recognized hazards, as well as wage and hour laws that may come into play when adjusting employee pay in response to the current crisis. Employers should consult with counsel for guidance in complying with these laws when facing the unique circumstances presented as a result of the pandemic.

Littler offers free publicly available resources to assist employers throughout the COVID-19 pandemic, which are available here, and continues to monitor these rapidly changing developments as it assists clients during this difficult time.