Reopening Nonessential Businesses Begins in the DMV: District of Columbia, Maryland, and Virginia Start to Lift COVID-19 Restrictions

On May 27, 2020, D.C. Mayor Muriel Bowser issued Order 0202-067, which details the Phase One limited reopening of non-essential businesses in Washington, D.C., to begin on Friday, May 29, 2020.  The Mayor’s decision to begin to reopen D.C. follows on the heels of prior orders of Governors Larry Hogan and Ralph Northam to reopen neighboring Maryland and Virginia, respectively.  Governor Hogan allowed certain nonessential businesses in Maryland to reopen on May 15, 2020, and on May 27, 2020, he issued Order 20-05-27-01, expanding its phase one reopening.  Governor Northam’s Executive Order 61 eased certain temporary restrictions throughout most of the Commonwealth of Virginia beginning on May 15, 2020, and Executive Order 62 permits the Northern Virginia Region, Richmond, and Accomack County to begin reopening on May 29, 2020.

Washington, D.C.

The recent Mayor’s Order lifts restrictions in the “Stay at Home” Order and allows certain businesses to reopen or expand operations starting on May 29, 2020, including nonessential retail businesses, barbershops and salons, and outdoor on-site restaurant service, under the following conditions:

• Nonessential retail businesses
  • can open for outdoor pickup by customers or delivery of items ordered online or over the phone, and can continue Minimum Basic Operations; but
  • cannot open for indoor shopping or indoor pickup of items.
• Barbershops and hair salons:
  • can provide services by appointment only, provided that services are limited to one customer per barber or stylist in the shop at one time and customer stations are at least six feet apart, and businesses are encouraged to keep customer information for the purpose of contact tracing; but
  • cannot provide services such as waxing, electrolysis, threading, and nail care.
• Restaurants and other licensed food establishments (including taverns, nightclubs, and mixed-use facilities that serve food and that are approved to provide such outdoor service)
  • can open for outdoor dining, provided the dining occurs in areas approved by the District Department of Transportation and the Alcoholic Beverage Regulation Administration (ABRA), tables are spaced at least six feet apart with no more than six individuals, and sanitation and disinfection protocols are implemented;
  • are encouraged to use a reservation system, preferably online or via telephone, to avoid crowding; and
  • are further encouraged to keep customer logs to facilitate contact tracing.

To operate under Phase One Reopening, businesses must:

• follow guidance provided by the Department of Health and the protocols required by prior Mayor’s Orders;
• inform all employees that they should not report to work if sick and of applicable leave provisions; and
• create a plan regarding COVID-19, including information about testing locations and guidance from the Centers for Disease Control and Prevention.

During Phase One, healthcare providers may continue to offer, or resume offering, services that will not unduly burden hospital capacity or COVID-19 related resources, including outpatient or other surgical procedures.  Thus, pursuant to this Order, non-emergency and elective procedures may resume.

Maryland

Under the extended Phase One Reopening Order in Maryland, religious facilities, retail establishments, manufacturing companies, beauty salons and barber shops, and restaurants may reopen under the following conditions:

• Retail Establishments may open, but the total number of persons permitted into the establishment cannot exceed 50% of maximum occupancy.
• Manufacturing businesses and facilities may open.
• Foodservice Establishments, which includes restaurants, bars, and similar establishments that sell food or beverages, and social and fraternal clubs with dining facilities, beginning May 29, 2020, may serve food and beverages to customers in outdoor seating areas, provided they:
  • require all staff to wear face coverings;
  • ensure patrons are seated at least six feet apart, except for guests from the same household;
  • do not seat groups larger than six persons together, except members of the same household;
  • do not serve food in a buffet format; and
  • clean and disinfect each table between each seating in accordance with CDC and Maryland Department of Health (MDH) guidelines.
• Beauty Salons and Barber Shops may open to provide certain hair services, provided they:
  • operate on an appointment basis only;
  • require all customers over the age of two to wear face coverings, except to the extent a face covering would make it impossible for services to be performed;
  • require staff to wear face coverings while in areas open to the general public and areas where interaction with other staff is likely;
  • ensure that the number of persons in the salon/shop does not exceed 50% of maximum occupancy; and
  • clean and disinfect the area in which services were performed in accordance with CDC and MDH guidance after providing services to each customer.
• Religious Facilities may open, but the total number of persons permitted into a religious facility cannot exceed 50% of maximum occupancy.

Under the recent Maryland order, all businesses, organizations, and facilities permitted to open must follow all applicable social distancing guidance published by the CDC and the MDH, as well as any applicable Local Orders or the Secretary’s Directives.

Businesses may require staff and customers or visitors over the age of two to wear face coverings.  Any business that requires the use of face coverings must post signs at each entrance advising customers, visitors, and/or staff about the requirements.  Retail Establishments, however, must continue to comply with Order 20-04-15-01 regarding the use of face coverings and requiring implementation of physical distancing measures.

Virginia

Pursuant to Executive Order No. 61, the Commonwealth of Virginia began its Phase One of reopening on May 15, 2020.  Shortly after issuing that order, however, Governor Northam issued and then amended Executive Order No. 62, which granted the Northern Virginia Region, Richmond, and Accomack County a delay from the Phase One reopening and kept those areas in Phase Zero.  Effective May 29, 2020, Northern Virginia, Richmond, and Accomack County will join the rest of the Commonwealth in allowing certain businesses, including restaurants, nonessential retail businesses, fitness and exercise facilities, personal care and grooming services, indoor shooting ranges, and campgrounds to open with the following restrictions:

• Foodservice Establishments may operate delivery, take-out, and outdoor dining and beverage service only, provided they:
  • do not exceed 50% of the lowest occupancy load on the certificate of occupancy;
  • seat parties of 10 patrons or less, at tables spaced six feet apart, unless the tables cannot be moved, in which case the parties must be seated at least six feet apart from other parties;
  • staff buffets with servers, and remove self-service food (except beverages), including condiments (which should be removed from tables and dispensed by employees);
  • use only self-service beverage areas that have equipment designed to dispense by a contamination-free method;
  • close bar seats and congregating areas to patrons except for through-traffic;
  • require employees working in customer-facing areas to wear face coverings; and
  • conduct a thorough cleaning and disinfection of frequently contacted surfaces every 60 minutes during operation, and clean tabletops, chairs, and credit card/bill folders in between patrons.
• Nonessential Retail Establishments:
  • must limit occupancy to no more than 50% of the lowest occupancy load on the certificate of occupancy; and
  • require employees working in customer-facing areas to wear face coverings.
• Fitness and Exercise Facilities may reopen for outdoor activities only so long as:
  • patrons, members, and guests remain at least ten feet apart during all activities;
  • hot tubs, spas, slash pads, spray pools, and interactive play features remain closed;
  • outdoor swimming pools are open for lap swimming only and are limited to one person per lane;
  • employees working in customer-facing areas wear face coverings;
  • employers clean and disinfect shared equipment after each use;
  • facilities prohibit the use of any equipment that cannot be thoroughly disinfected between uses;
  • businesses provide hand sanitizer stations or hand washing stations for patrons, members, and guests; and
  • all group outdoor activities do not have more than 10 guests, patrons, or members.
• Personal Care and Personal Grooming services, which include beauty salons, barbershops, spas, massage centers, tanning salons, and tattoo shops, may reopen so long as:
  • occupancy does not exceed 50% of the lowest occupancy load on the certificate of occupancy;
  • there is at least six feet of physical distancing between work stations and only one appointment per service provider at a time;
  • service providers and employees working in customer-facing areas wear face coverings;
  • customers are provided with coverings or customers are asked to bring a face covering with them, which they must wear during the service;
  • services provided are limited to those that can be completed without clients removing their face coverings; and
  • a thorough cleaning and disinfection of frequently-contacted surfaces is conducted every 60 minutes in operation, and all personal care and grooming tools are cleaned and disinfected, or discarded, after each use.
• Indoor Shooting Ranges may reopen with limitations similar to the above restrictions.

On May 26, 2020, Governor Northam issued Executive Order No. 63, detailing requirements for wearing face coverings inside buildings.  While these requirements, effective May 29, 2020, predominantly apply to patrons, the order specifically requires employees of essential retail businesses to wear face coverings whenever working in customer-facing areas.

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As reopening in the DMV moves into Phase One, businesses should begin crafting and refining a written plan to reopen that meets the specified requirements in each jurisdiction in which they operate.  Certainly, the District of Columbia requires employers to have such a plan.  Developing a comprehensive reopening and safety plan is also a best practice that will aid employers in setting expectations for employees, addressing employee safety concerns, and limiting liability.  Employers should also train their staff on the plan and its requirements.

As every jurisdiction opens at different rates, businesses must remain cognizant of the changing requirements and ensure that their policies and practices evolve to meet these requirements.  Epstein Becker & Green, P.C., continues to monitor developments in the DMV and throughout the country.  Readers may contact the authors or their EBG attorney with any questions or needs for assistance in reopening or addressing any other COVID-19-related issue.