At a press conference on May 4, 2020, Virginia Governor Ralph Northam announced the Commonwealth’s three-phase plan for easing, and eventually lifting, the restrictions imposed on nonessential businesses because of the COVID-19 pandemic. Virginia thus joins the growing number of jurisdictions that have announced and/or implemented measures to reopen nonessential businesses.

Before the Commonwealth’s reopening plan begins, however, Governor Northam announced that Executive Order 53’s closures of recreational businesses, entertainment businesses, and certain brick-and-mortar retailers, would be extended by one week—until May 15. During this time, the other requirements of that Order also remain intact.

The governor stated that he “expect[s to] be able to enter” Phase I of the reopening plan after that, though he has not yet committed to a specific time for implementing the plan. Instead, the governor said his focus is on monitoring whether there is a downward trend in positive COVID-19 tests, an increase in testing, and an ability for hospitals to maintain steady capacity and necessary supplies of personal protective equipment (PPE).

In the meantime, to allow businesses to prepare for this phased reopening, the governor has provided a blueprint for what the three phases will entail.

Phase I

During Phase I, social gatherings in the Commonwealth will continue to be limited to no more than 10 people, and face coverings will continue to be recommended. Governor Northam has also suggested that Virginia’s stay-at-home order (Executive Order 55), which is currently in effect until June 10, 2020, may be relaxed to a “safer-at-home” model. Executive Order 55 has not yet been amended to that effect.

Limits on businesses and faith communities will be eased in several ways during Phase I. For example, barbershops and salons may reopen, albeit on an appointment-only basis. Similarly, restaurants can expand from delivery and carry-out services to accommodate dine-in patrons, though with reduced seating and with employees required to wear face masks.

In addition, all businesses will be expected to:

• Adhere to physical distancing (social distancing) requirements, to the extent possible;

• Enhance their cleaning and disinfection efforts around the workplace; and

• Apply relevant workplace safety guidance from state and federal authorities.

Businesses should also continue to consider permitting telework by employees where doing so does not impose undue hardship.

The governor has stated that once Phase I goes into effect, it will remain in effect until the administration confirms a further downward trend over 14 days in the percentage of positive COVID-19 tests before shifting to Phase II. Daily reports tracking this percentage and other data are being posted on the Virginia Department of Health’s (VDH) website beginning on May 5, so employers or anyone else who is interested may track them independently. The blueprint currently projects that Phase I will last between two and four weeks.

Phase II

During Phase II, face coverings will continue to be recommended, though the limit on social gatherings will be relaxed from a 10-person maximum to a 50-person maximum. Phase II will also carry a stay-at-home directive for vulnerable populations.

The governor has also indicated that there will be “[f]urther easing” of restrictions on businesses during Phase II, though the specific measures being eased have not yet been identified. The Commonwealth will, however, continue to encourage physical distancing requirements to the extent possible, telework (where doing so does not impose undue hardship), and face masks for employees.

Once it begins, Phase II also is currently projected to last two to four weeks, but could last longer. Before shifting to Phase III, the Commonwealth’s task force is looking to confirm there is no evidence of a rebound (uptick) in COVID-19 cases for a sustained period of time, though the governor has not specifically defined what constitutes a “sustained period of time.”

Phase III

During Phase III, which the governor indicated is currently not expected to begin until at least 10 to 12 weeks from now:

• The ban on social gatherings will be lifted;

• There will no longer be a capacity limit on any business establishment (e.g., movie theaters, concert venues, and sports stadiums and arenas);

• Vulnerable populations will follow the general population in shifting from a stay-at-home directive to a safer-at-home directive; and

• Businesses will be expected to continue their heightened cleaning measures such as enhancing their sanitizing practices on common surfaces.

There is also a possibility that other measures could be taken during Phase III.

Throughout this time, Virginia employers should remember that all preexisting employment-related federal and Virginia 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 remember the federal Worker Adjustment and Retraining Notification (WARN) Act, if applicable, and ensure that required notices are issued. Employers in the Commonwealth should also remain mindful of the federal Occupational Safety and Health (OSH) Act, which requires them 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 facing the unique circumstances presented by the pandemic should consult counsel for guidance in complying with these laws.