Updated: Expanded Restrictions on Virginia Businesses Through Exec. Order 53 (Coronavirus and the Law)

  • On Wednesday, April 15, 2020, Gov. Northam announced that he was extending the end-date of Executive Order 53 by two weeks. Initially, EO 53 was effective for 30 days and set to expire on April 23.  Now, as extended, the order is set to expire on May 8.
  • On March 17, the Governor and the Commissioner of the Virginia Department of Social Services (DSS) issued an Order directing all daycare facilities to comply with the requirements of the Declaration of Health Emergency and limit the number of patrons in restaurants, fitness centers, and theatres to no more than 10 per establishment.
  • By order of March 13, Governor Northam closed K-12 schools from March 16 through, at a minimum, March 27, 2020. On March 23, Governor Northam announced schools would remain closed for the 2019/2020 academic year.
  • On March 12, 2020, via Executive Order No. 51 (EO51), Governor Ralph S. Northam declared a state of emergency due to the novel coronavirus (COVID-19) pandemic.

[clear]Despite these measures, the Virginia Department of Health (VDH) reports that COVID-19 presents an ongoing threat to Virginia communities. VDH advises of the occurrence of COVID-19 in every region of the Commonwealth; indeed, data suggests that in several areas there exists community spread of the virus.

Executive Order No. 53

In furtherance of EO51, Governor Northam has issued Executive Order No. 53 (EO53), clarifying and expanding COVID-19 related restrictions on businesses and public or private in-person gatherings. In short, EO53 provides that effective March 24 at 11:59 p.m. until 11:59 p.m. Thursday, April 23, 2020, all in-person gatherings of 10 or more individuals are prohibited.

Correspondingly, EO53 orders the cessation of all in-person instruction at K-12 schools, public and private, for the remainder of the 2019-2020 school year. The Order provides that daycare facilities may remain open, but directs that they comply with the March 18, 2020 guidance issued by the DSS Commissioner, previously reported here. EO53 reiterates DSS’ recommendation that daycare facilities prioritize services for children of essential personnel and to that end, advises that DSS and the Virginia Department of Education will issue guidance to communities about operationalizing emergency childcare services for essential personnel.

Certification of Utilities as Essential Personnel

In keeping with these provisions, on March 23, 2020, the Virginia State Corporation Commission issued an Order Certifying Critical Infrastructure Workers, declaring that “service providers and their workers who are necessary to continue delivering electricity, gas, propane, water and sewer services to customers, both residential and business, retail and wholesale,” shall be certified as critical infrastructure workers as referenced in the United States Department of Homeland Security, Department of Cybersecurity & Infrastructure Security Agency (CISA) Memorandum of March 19, 2020 (CISA Memorandum). This certification ensures that utilities and their workers are considered essential personnel and receive priority status, along with healthcare providers and similar essential personnel, in obtaining resources necessary to continue uninterrupted delivery of vital services.

Expanded Restrictions on Businesses

EO53 also expands restrictions previously applied to theatres and fitness centers, to order the closure, during the effective period of all “recreational and entertainment businesses,” including theatres, performing arts centers, concert venues, bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, racetracks and historic horse racing facilities, aquariums, zoos, escape rooms, indoor shooting ranges, public and private social clubs, and “all other places of indoor public amusement.”

The Order expands restrictions on fitness centers and orders closure of all “[f]itness centers, gymnasiums, recreation centers, indoor sports facilities and indoor exercise facilities.” It also orders closure of “[b]eauty salons, barbershops, massage parlors, tanning salons, tattoo shops, and any other location where personal care or grooming services are performed that would not allow compliance with social distancing guidelines directing separation of customers and staff by six feet.

EO53 extends restrictions on restaurants by ordering the closure of all dining and congregation areas in restaurants, dining establishments and food courts, breweries, microbreweries, distilleries, wineries, tasting rooms and farmers markets but providing that these establishments can offer delivery and takeout services (including alcoholic beverages).

The order lists essential businesses that may remain open during their normal business hours to include:

  • Grocery stores, pharmacies and other retailers that sell food, beverage or pharmacy products
  • Medical, laboratory and vision supply retailers
  • Electronic retailers that sell or service cell phones, computers, tablets, and other communications technology
  • Automotive repair facilities and automotive parts, accessories, and tire retailers
  • Home improvement, hardware, building material, and building supply retailers
  • Lawn and garden equipment retailers
  • Beer, wine, and liquor stores
  • Retail located within healthcare facilities
  • Banks and other financial institutions with retail functions
  • Pet and feed stores
  • Printing and office supply stores
  • Laundromats and dry cleaners

EO53 provides that, from March 25 through April 23, any brick and mortar retailer not considered an essential business may continue to operate, but must limit in-person shopping to no more than 10 patrons per establishment at any given time.  If the business cannot limit patrons effectively, it must close.

The order also states that, although businesses offering professional rather than retail services may remain open, they should utilize teleworking as much as possible.  Where teleworking is not feasible, such businesses must adhere to social distancing, apply enhanced sanitation and otherwise apply relevant federal and state workplace guidance.

EO53 counsels all businesses, to the extent possible, to adhere to social distancing guidelines and use enhanced sanitation, but makes clear that nothing in the order shall limit the provision of healthcare or medical services, access to essential services (such as food banks) by low-income residents, the operations of the media, law enforcement agencies, or the operation of government.

Read more legal updates on COVID-19 from Woods Rogers attorneys.


Jump to Page