By attorney Daniel Salmon

Last month, Governor Northam made news when he announced that the Virginia mask mandate had been lifted for fully vaccinated people, but the devil is in the details. On May 14, 2021, the Governor’s office set forth its updated policy by issuing Executive Order (“EO”) 79 replacing EO 72, effective May 28, 2021. This EO updates mask guidance to align with Center for Disease Control and Protection (“CDC”) guidance, which announced that for fully vaccinated individuals, most COVID-related restrictions no longer apply, including the requirement to wear masks and socially distance. However, EO 79 provides that where it conflicts with sector-specific guidelines, those sector-specific guidelines control. Thus, business owners should be aware that some requirements that applied under EO 72 remain, including mask and social distancing mandates for employees of specific industries.

Accordingly, Virginia businesses that are not subject to federal or Virginia industry-specific guidance can relax rules for their fully vaccinated employees; those employees no longer need to wear masks or socially distance and, after exposure to COVID, they do not need to self-isolate but may continue to work, as long as they have no COVID symptoms. As mentioned, however, a major exception to the adoption of CDC guidance involves sector-specific guidelines previously set forth in Virginia (and nationally) which still govern despite the CDC guidance. Virginia’s sector-specific requirements apply to restaurant & beverage services, farmers’ markets, brick and mortar retail, fitness & exercise facilities, swimming pools, personal care & personal grooming services, private campgrounds, overnight summer camps, entertainment & public amusement, religious services, recreational sports, horse & other livestock shows, outdoor speedways & racetracks, graduations & commencements, and school performances.

It should be noted that while sector-specific guidance requires patrons to wear masks for each enumerated type of business, that requirement is tied directly to EO 72. Since EO 79 terminates EO 72 upon its effective date, the mask requirement will instead be tied to the CDC guidance. The remaining sector-specific guidance operates largely independent of an individual EO, and thus, is still in effect. The sector-specific guidance reiterates much of the same guidance seen over the past year including signage promoting hygiene and physical distancing, occupancy limits, and disinfection procedures. Furthermore, the sector-specific guidance still requires most employees and many businesses’ patrons to still be masked and maintain social distancing. Some of Virginia’s sector-specific restrictions include:

Restaurant & Beverage Services

• Closed to in-person customers between 12a-5a
• Take-out and delivery between these hours are still permitted

Fitness & Exercise Facilities

• Physical distancing requirement is ten feet instead of six
• Screen patrons for COVID-19 symptoms

Overnight Summer Camps

• Campers subject to daily symptom screening

Entertainment & Public Amusement

• Live musicians required to wear masks
• Guest flow plans that avoid bottlenecks and pinch points

Recreational Sports

• Daily screenings of players, coaches, staff, and officials

Public and Private K-12 Schools

• Students, teachers, staff, and visitors to continue wearing masks

The new EO 79 comes with its own challenges. Businesses attempting to regulate who may or may not be masked need to be mindful of Americans with Disabilities Act’s (“ADA”) prohibition on discrimination based on disability and requirement to keep employee medical information confidential. It is generally permissible for employers to ask employees about their vaccination status and even to require proof, provided that such information is kept confidential. Businesses should take care to prevent harassment of employees based on their vaccination status.

In addition, until further notice from Virginia’s Governor or Department of Labor and Industry, Virginia’s Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that causes COVID-19, which was adopted in January 13, 2021, remains in effect, in spite of EO 79.

Businesses seeking information on how to comply with these ever-changing guidelines should seek the advice of counsel. Vandeventer Black’s Labor & Employment attorneys stand ready to assist with all your business needs. For more information, please visit vanblacklaw.com.

About the Author:
Daniel Salmon is an associate in the Construction & Government Contracts practice group working out of the Norfolk office of Vandeventer Black LLP. His primary focus is supporting his practice group, but he is also interested in technology law and business law. He joined Vandeventer Black in 2019 after completing the firm’s summer associate program the prior year.