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COVID-19 Legal Update: Virginia Executive Order No. 53

| Mar 24, 2020 | Firm News |

March 24, 2020

On March 23, 2020, Governor Ralph Northam issued an Executive Order to limit certain activities within the Commonwealth of Virginia to mitigate the impact of COVID-19 (the “Directive”). For your convenience, please click the highlighted links to access: (1) the Directive and (2) a list of Frequently Asked Questions (FAQs) provided by the Office of the Governor.

DURATION

The Directive goes into effect at 11:59 p.m. on Tuesday, March 24, 2020. The Directive expires at 11:59 p.m. on April 23, 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 six 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 the Directive 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, the 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 the Directive for a complete list of essential businesses.

If a retail business is unsure whether it is considered essential under the Directive, 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. 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, the CDC recommends “no congregate settings.”

The Directive does not affect healthcare facilities, law enforcement agencies, governmental entities, and essential services for impoverished people (such as food banks).

The Governor’s office recommends canceling non-essential medical treatment or remote video treatment where feasible.

THE DIRECTIVE DOES NOT RESTRICT TRAVEL OR DIRECT VIRGINIANS TO “SHELTER IN PLACE”

Virginians are encouraged to practice social distancing. However, the Directive does not restrict travel or restrict people to their homes.

Religious services may proceed, but they are required to adhere to the 10-person limit.

ENFORCEMENT

Businesses who fail to comply with the Directive 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, so payment by the original deadline is recommended.

PROCESS FOR REQUESTING A WAIVER

Although the Directive 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 the Directive inappropriately restricts your operations.

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. At this time, there is no announcement that the Virginia Workers’ Compensation Commission will not apply this well-established principle to COVID-19 claims. 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.

SMALL BUSINESS DISASTER LOANS AND BUSINESS INTERRUPTION INSURANCE

Virginia small business owners may 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 an 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.