What does ‘reopening’ actually mean?

Updated May 14, 6:15 p.m. 

With most of Virginia preparing to enter the first phase of Gov. Ralph Northam’s “Forward Virginia” plan on Friday, there’s still a fair number of questions about what exactly Phase One of “reopening the state”  means for business owners, employees and consumers.

Here’s what you should know:

Reopening in Phase One remains limited.

• Nonessential retail establishments will be allowed to operate at 50% capacity.
• In addition to offering takeout and delivery, restaurants and breweries will be allowed to offer outdoor dining at 50% seating capacity.
• Personal grooming establishments such as hair and nail salons will be able to operate by appointment only, exercising strict social distancing. Face coverings will be required.
• Gyms and other fitness and exercise establishments will remain closed but will be allowed to offer outdoor classes.
• Currently limited to drive-in services and 10-person indoor limits, places of worship will be expanded to 50% capacity for indoor services.
• Private campgrounds can reopen.
• Entertainment venues such as movie theaters and amusement parks will remain closed.

It’s still safer to stay at home.

Gov. Northam has said it will still be safer for Virginians to remain at home during Phase One, which is expected to last until at least May 29. He has urged businesses that are able to telework should continue doing that and has said Virginians need to continue practicing social distancing. “I want to reassure Virginians we are not opening the floodgates here,” Northam said on May 8 when he unveiled his Forward Virginia Phase One reopening plan. “The reality is the virus is still in our communities and we need to continue our vigilance and social distancing, hand washing and wearing of face protection when we’re out and about. … This plan will slowly and deliberately ease some of the restrictions, but not all.”

Industry-specific guidelines are available at the state’s coronavirus website.

As the governor announced earlier this week, Northern Virginia remains in “Phase Zero” until May 29, so the Phase One guidelines apply to the rest of the state. Northam’s administration worked with a task force of two dozen business leaders in coming up with guidelines and best practices as the state enters the first phase. On Thursday evening, the city of Richmond and Accomack County joined Northern Virginia in the two-week delay, Northam announced.

Industry-specific guidelines are now available on the state’s Forward Virginia website but they haven’t been posted very long, so it may take additional time to make sure all employees are up to speed. These focus on restaurants and beverage services; farmers’ markets; brick-and-mortar retail; fitness and exercise facilities; personal care and grooming services; campgrounds and summer camps, and religious services.

Sarah Milston, CEO of Richmond-based consulting firm The Spark Mill, recently gave two webinars with Virginia Community Capital, answering questions about how to conduct business in Phase One safely, including how to keep employees safe and which updates to make. “It’s so dependent on your industry and the way that you engage with the public,” Milston said, echoing what many business owners have said.

Milston advises owners to contact their lawyer and insurance agent to make sure they’re following not only the reopening regulations but also the Americans with Disabilities Act, which governs questions like whether you can require employees to be tested for COVID-19 before they return to work (answer: it depends on the situation, and you’re best off asking an attorney, Milston says).

Aside from the state’s regulations, many business owners are also seeking reopening guidance from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA).

Dianna M. Waters, a massage therapist based in Chesterfield County, said she’ll be wearing a mask when she reopens May 18 and allowing more time between appointments to clean and disinfect, as well as following advice from the CDC and OSHA. She’ll also require clients to wear masks, one of the state’s requirements in Phase One for personal care and grooming businesses such as hers.

OSHA’s normal safety standards still apply during the pandemic, and this page outlines companies’ responsibilities in reporting COVID-19 infections that are related to work. If a worker has a complaint or a question about their company’s safety protocols, the state Department of Labor and Industry has a dedicated email address.

The CDC also provides general advice about mitigating community spread of the virus, including what businesses can do.

If an employee is worried about going back to work, or a business owner is reluctant to reopen during Phase One, what happens?

In terms of unemployment benefits, both owners and employees could lose out if they don’t reopen or return to work, according to William Walton, Virginia Employment Commission unemployment insurance director, although there are separate rules governing the situations.

A person who owns a small business is likely receiving Pandemic Unemployment Assistance under the federal CARES Act, Walton said, which also covers independent contractors, gig economy workers, clergy and nonprofit employees not covered by the state unemployment insurance program.

Massage therapist Dianna Waters said she decided to reopen her business next week, in part because if she doesn’t, she will lose her benefits.

Walton said that is correct with regard to PUA. Some business owners nonetheless are still not reopening in Phase One, in part because of personal circumstances like higher vulnerability to the virus or child care issues.

As for employees, they too can lose unemployment benefits if they don’t return to work when their workplace reopens, Walton said. The VEC requires that unemployment insurance recipients take an appropriate job when it is offered, even if current circumstances make the worker feel vulnerable to getting sick, he noted. Employers can work with employees by providing liberal leave or allowing them to work remotely.

Also, the VEC allows applicants to appeal decisions. Many common questions about unemployment insurance, PUA and other funding are answered here or on the governor’s site.

Can you require customers or clients to wear a mask?

Milston said she’s heard from many business owners that are worried about the public, and whether customers will wear masks and maintain social distancing. Virginia’s Phase One requires patrons to wear face coverings at businesses offering personal care services, like hair salons, massage therapy, spas and tattoo shops, but otherwise the state only recommends that patrons wear masks to other businesses for the most part.

Some national grocery chains — notably Costco and Fresh Market — are strongly suggesting that customers wear masks, posting signs outside stores. Under ordinary circumstances, a mask mandate would not be allowed under ADA regulations, but for the time being, a business likely would be able to turn away a customer if they don’t wear a mask, according to this piece in the National Law Review.

If you have any questions, let us know and we’ll try to get an answer.

Subscribe to Virginia Business.

Get our daily e-newsletter.