On Monday, March 23, 2020, Governor Northam issued Executive Order 53 (“EO53”) ordering the statewide closure of recreational and educational businesses to the public, non-essential retail businesses, all K-12 schools for the remainder of the academic year, banning all gatherings of more than 10 people, and restricting Essential Retail Businesses and Professional Service Businesses to complying with the CDC guidelines. This order went into effect yesterday (Tuesday March 24, 2020, at 11:59 p.m. and will remain in place until 11:59 p.m. on Thursday, April 23, 2020).  Businesses in violation of this order may be charged with a Class 1 misdemeanor. Companies who are unable to stay open due to the Coronavirus should determine whether all or some of their employees may telework and, if so, ensure that work-from-home policies are in place with clear expectations and communication procedures to all employees.

Pertinent provisions of EO 53:

• Public gatherings  of 10 or more are banned (except gatherings that involve the provision of health care or medical services; access to essential services for low-income residents, such as food banks; operations of the media; law enforcement agencies; or operations of government.)
• K-12 schools are closed through the end of this academic year. Guidance will be issued to help divisions execute plans to continue instruction.
• All recreational and entertainment businesses are closed to the public. Theaters, museums, fitness centers, recreation centers, personal care or grooming establishments, racetracks, fairs, aquariums, indoor shooting ranges, public and private social clubs, and all other places of indoor public amusement are closed to the public.
• Eating and drinking establishments may only offer delivery and/or takeout services.

Retail Businesses

Retail business that are currently considered “essential” are allowed to remain open while practicing “social distancing” and enhanced sanitization procedures include:

• grocery stores, pet stores, pharmacies, and other retailers that sell food, beverages or pharmacy products (including department stores with grocery or pharmacy operations), as well as beer, wine, and liquor stores, gas stations, and home improvements, automotive parts, building supply, and lawn and garden equipment retailers;
• medical, laboratory and vision supply retailers;
• electronic retailers that sell or service cell phones, computers, tablets and other communications technology;
• banks; 
• printing and office supply stores; and
• laundromats and dry cleaners.
• Any brick-and-mortar retail business not specifically listed must limit all in-person shopping to no more than 10 patrons per establishment, adhere to social distancing recommendations, sanitize common surfaces and apply relevant workplace guidance from state and federal authorities. If any such business cannot adhere to the 10-patron limit with proper social distancing requirements, it must close.

Professional Businesses

• Professional businesses not specifically listed in EO53 must utilize telework as much as possible. Where telework is not feasible, these businesses must adhere to social distancing recommendations, enhanced sanitizing procedures, and apply relevant workplace guidance from state and federal authorities.

While this Executive Order is not a shelter-in-place order, all employers are urged to promote work from home arrangements to the greatest extent possible. Companies utilizing teleworking should promptly consider the following:

1. Ensure that work-from-home policies are in place with clear expectations and communication procedures.
2. Determine who can work from home and who cannot work from home and what work should be performed.
3. Non-exempt employees must be paid only for hours worked.  
4. Exempt employees generally must be paid for the entire workweek if they perform any work during a workweek. However, the company may require the employee to take paid leave for the rest of the week so long as the employee receives his/her full salary for the week.
5. Verify that IT policies are in place and disseminated to and understood by all who will be working from home. Are written information security, confidentiality, bring your own device and similar policies in place or can they be quickly imposed? Are critical confidential information and personal information specifically safeguarded? Check any contractual or legal provisions (e.g., export control) that may prevent certain information from being processed offsite or by certain individuals.

The full text of Executive Order 53 can be found here.

This alert was written by Merrell Renaud, a lawyer in the Labor, Employment, Benefits & Immigration practice group at Miles & Stockbridge.

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