The Governor’s New Executive Order: What’s Closing and What’s Not

Virginia Governor Ralph Northam has continued to provide near daily updates on Virginia’s response to the coronavirus, with the latest action coming in a sweeping Executive Order on March 23 strictly curtailing retail activity.

Executive Order #53, in addition to closing all K-12 public schools for the remainder of the year, bans all gatherings of more than 10 people, strictly limits restaurants and bars to carry-out or delivery only, closes a number of “non-essential” businesses, and places further restrictions on other retail establishments.

The order is effective for the next 30 days, until April 23, 2020.

But perhaps more importantly is what the order does not cover. The order only applies to “retail” and other businesses that are public-facing. The Executive Order explicitly says it does not apply to professional services. Similarly, the construction industry is not included and may continue to work. A number of other industries are also not impacted.

Background

As we shared last week, the state government has broad authority under the state Constitution and state statute during times of natural disasters and other emergencies. Our previous post covers in detail the Governor’s authority under Article V of the Constitution and Title 44 of the Code of Virginia.

Prior to this order, the Governor and other state bodies – including the Supreme Court of Virginia and the State Corporation Commission – had taken several steps to “slow the spread” of the coronavirus. This included temporarily closing schools, closing state offices and services like the DMV, and limiting the amount of people in a retail establishment at one time.

Executive Order 53

The full text of Executive Order 53 is available here, and the Governor’s office has provided a detailed Frequently Asked Questions document that provides more information.

In summary, the Governor’s actions include:

• Closing K-12 schools for the remainder of the school year
• Banning all gatherings of more than 10 people statewide
• Closing all “recreation and entertainment” businesses
• Limiting all restaurants, bars, and food establishments to offering carry-out or delivery only
• Requiring all “non-essential” retail businesses to limit the number of patrons to no more than 10, and require they always practice social distancing

The Executive Order allows all “essential” businesses to remain open but requires them to enforce social distancing when possible and to enhance sanitization practices. Essential businesses include:

• 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;
• 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 stores and feed stores;
• Printing and office supply stores; and
• Laundromats and dry cleaners.

Industries Not Impacted

Notably, a number of businesses and industries are not affected by the Governor’s order. The order only applies to retail and other public-facing businesses.

During the Governor’s press conference, a member of the media specifically asked if the construction industry will be affected by this order, and a member of the administration confirmed that the construction industry is not affected by this order.

The order expressly states that “home improvement, hardware, building material, and building supply retailers” are essential retailers that may remain open during normal business hours, although these business “must, to the extent possible, adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities.”

The order also allows professional services to remain open, but does say that “professional businesses not listed above must utilize telework as much as possible. Where telework is not feasible, such businesses must adhere to social distancing recommendations, enhanced sanitizing procedures, and apply relevant workplace guidance from state and federal authorities.”

Manufacturing, energy, transportation, warehousing and distribution companies are also not affected.

If you have questions about whether or not this order impacts your business, please call Gentry Locke immediately at 866.983.0866.

Future Guidance

The Governor’s office said it would update this order as necessary, and that may include changing what is considered essential and non-essential. Virginia is also expected to provide additional guidance on the closure of K-12 public schools.

Virginia’s actions-to-date are not as strict as some other states, including New York, California, and New Jersey, which have all issued stronger orders, often referred to as “shelter in place” or “stay at home” orders.

Gentry Locke’s Government and Regulatory Affairs team is closely monitoring the developments related to state government as part of Gentry Locke’s coronavirus response team. If you have questions about how your business or organization may be affected by state action, please call us directly at 866.983.0866.