On May 12, 2020, Virginia Governor Ralph Northam issued Executive Order 62 and Order of Public Health Emergency Four (“Executive Order 62”), which delays the implementation of Phase One of the Commonwealth’s three-phase reopening plan for the Northern Virginia Region until May 29, 2020. As previously discussed, on May 9, 2020, Governor Northam issued Executive Order 61 and Order of Public Health Emergency Three, which will lift certain restrictions on nonessential businesses beginning on May 15, 2020.  In doing so, however, the governor explained that this Commonwealth-wide lifting of restrictions was intended as a floor, rather than a ceiling.  Put differently, the governor left the door open for local governments to request approval of more stringent approaches to the lifting of restrictions on nonessential businesses in certain parts of the state. The governor issued Executive Order 62 after reviewing and approving one such request from the Northern Virginia Regional Commission.

As Executive Order 62 explains, the Northern Virginia Region comprises the following 13 jurisdictions:

• Arlington County
• Fairfax County
• Loudoun County
• Prince William County
• the City of Alexandria
• the City of Fairfax
• the City of Falls Church
• the City of Manassas
• the City of Manassas Park
• the Town of Dumfries
• the Town of Herndon
• the Town of Leesburg
• the Town of Vienna

Executive Order 62 justifies this delay with several data points highlighting the “unique challenges” that the Northern Virginia Region faces relative to the rest of the Commonwealth.  For example, the Northern Virginia Region has a COVID-19 positivity rate of roughly 25%, compared with approximately 10% elsewhere in the Commonwealth.  Indeed, 70% of the Commonwealth’s positive cases (and over 700 such cases in the 24 hours preceding the issuance of Executive Order 62) were reported in the Northern Virginia Region, while the entire remainder of the Commonwealth reported only 30% of the positive cases (and 270 cases in the preceding 24 hours).  And COVID-19 patients in the Northern Virginia Region make up a significantly larger portion of that region’s hospital bed capacity when compared against the same data in the rest of the Commonwealth.  In addition, the Northern Virginia Region has explained that it continues to face a challenge with maintaining sufficient personal protective equipment (PPE) for medical outpatient facilities.

Executive Order 62 does not impose any new obligations on businesses.  Rather, it effectively keeps intact the same requirements from Executive Order 53 and Virginia’s stay-at-home order (Executive Order 55), which the governor refers to as “Phase Zero,” for an additional 14 days after those requirements are relaxed or lifted throughout the rest of the Commonwealth. 

In the meantime, essential retail businesses may remain open during their normal business hours. These employers are required, however, to provide face coverings to their employees. Executive Order 62 lists the following types of operations as essential retail businesses:

• Grocery stores, pharmacies, and other retailers with grocery or pharmacy operations (such as dollar stores and department stores with such 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 and feed stores;
• Printing and office supply stores; and
• Laundromats and dry cleaners.

Businesses offering professional (as opposed to retail) services may remain open, but are encouraged to continue to use teleworking as much as possible.  If telework is not feasible, those businesses must adhere to physical distancing recommendations and enhanced sanitizing practices on common surfaces.

In addition, all businesses are also encouraged to follow the Guidelines for All Business Sectors as recommended practices, as well as other appropriate workplace guidance from state and federal authorities while in operation.

Violations of Executive Order 62, like those of Executive Order 61, are treated as a Class 1 misdemeanor.

Employers with operations in both the Northern Virginia Region and elsewhere in the Commonwealth should comply with the executive orders applicable to the geographic area where each of their operations is located.  Thus, for example, a retail establishment with one location in Alexandria and a second location in Norfolk may begin Phase I with respect to its Norfolk location on the timeframe set forth in Executive Order 61 (currently, May 15, 2020), while waiting to begin Phase I in its Alexandria location until the date set forth in Executive Order 62 (currently, May 29, 2020). 

It is also possible that Governor Northam will issue additional regional executive orders on a case-by-case basis, as COVID-19-related circumstances dictate.  As of this writing, however, only the Northern Virginia Region has been identified as needing to delay the start of Phase One.