Community Associations and Virginia’s COVID-19 Executive Orders [updated 5/28/20]
Governor’s EO61 and EO62 – “Phase 1” reopening began May 16 for most of Virginia and May 29 for NoVA, Richmond and Accomack.
EO61/EO62 – Phase One Re-Opening. Effective on May 16 and continuing through June 10 (subject to change), most of the Commonwealth began “Phase One” of its planned gradual reopening of certain businesses and activities. Phase One commenced on May 29 for Arlington, Fairfax, Accomack Loudoun and Prince William and the Cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park and Richmond.
Under this Order, recreation centers, pools, and certain sports and exercise facilities are allowed to reopen for only outdoor activities, subject to several significant restrictions (see below for more information on Phase 1). Social gatherings of more than 10 individuals remain prohibited.
EO55 – Stay-At-Home. To fight the spread of the virus, Virginia Governor Northam issued EO55, an executive “stay-at-home” order, to supplement EO53 that he issued previously (requiring social distancing and other measures). Under EO55, Virginia residents must remain in their residences, leaving only for certain activities. For instance, this Order allows Virginia residents to travel to and from their workplaces and residences. EO55 continues in effect through June 10.
EO53 – Nonessential Businesses and Social Distancing. Under EO-53, gatherings of more than 10 persons are prohibited and certain facilities must be closed. Under these Orders, management and staff may continue to work at their community association workplaces in Virginia. EO53 continues in effect except as modified by EO61 (see above).
What are associations permitted to do under Virginia’s “Phase 1” reopening?
Effective midnight on May 15 in most jurisdictions (and May 29 for the entire Commonwealth) and continuing through June 10 (subject to change), the Commonwealth begins “Phase One” of its planned gradual reopening of certain businesses and activities. For general best practices, associations should review Virginia’s “Guidelines for All Business Sectors” on the Governor’s website (www.virginia.gov/coronavirus/forwardvirginia).
Once a locality enters Phase 1 under EO61, recreation centers, pools and certain sports and exercise facilities are allowed to reopen only for outdoor activities and only if several significant restrictions are implemented. Indoor recreational activities remain prohibited. Social gatherings of more than 10 individuals also remain prohibited.
Per EO61 and guidance published by the Governor’s Office, the following are some of the mandates that must be followed when opening outdoor recreational facilities under Phase 1:
- Hot tubs, spas, splash pads, spray pools, interactive play features, basketball courts and racquetball courts must remain closed.
- Outdoor swimming pools can be open for lap swimming only, with one person per lane. Indoor swimming pools and related areas must remain closed.
- All seating in pool areas must remain closed.
- Employees working in customer-facing areas must wear face coverings over their nose and mouth. Lifeguards responding to distressed swimmers are exempt from this requirement.
- Provide hand sanitizing stations, including at the entrance/exit.
- Must strictly follow the physical distancing guidelines, enhanced cleaning and disinfection practices, and enhanced workplace safety practices provided in the “Guidelines for All Business Sectors” document located on the Governor’s website (https://www.virginia.gov/coronavirus/forwardvirginia).
Are associations legally required to close their private gyms, fitness centers and other recreational facilities?
Yes, it appears so, except that for the Phase 1 reopening process, EO61 allows limited openings of certain outdoor recreation and fitness facilities starting the morning of May 16 for most of Virgina (and May 29 for the rest of Virginia) and expected to continue through June 10.
EO53 required closure of all “public access” to recreational businesses, including fitness centers, gymnasiums, recreation centers, indoor sports facilities and indoor exercise facilities. If an association has private facilities not accessible to the public, the Governor’s Order does not expressly require their closure. However, in an FAQ posted by the state, the Governor referred to condominium facilities as “public;” as such, we interpret EO53 to require community association fitness centers, gyms and other indoor recreational facilities be closed.
The Phase 1 reopening rules under EO61 still require indoor recreational facilities to remain closed through June 10 (see above for more Phase 1 information).
Bearing in mind that close contact between persons can contribute to the spread of COVID-19 and the provisions of the EO’s (that prohibit all public and private in-person social gatherings of more than ten individuals), associations should give serious consideration to also closing (or keeping closed) non-recreational facilities where such gatherings may occur, including community rooms and similar areas.
Can associations operate outdoor pools and allow use by residents under the Governor’s Order?
As localities enter the Phase 1 reopening process, recreation centers, pools and certain sports and exercise facilities are allowed to reopen only for outdoor activities and only if several significant restrictions are implemented. See above for information on the Phase 1 reopening requirements for pools. Also, the stay-at-home Order (EO55) prohibits social gatherings of more than 10 people and requires social distancing when engaging in outdoor recreation/exercise. As of May 29, all of Virginia enters Phase 1 and continuing through June 10 (subject to change).
Must associations shut down all operations under the Executive Orders?
No. While the Governor’s Orders require certain retail businesses to close, there are no Orders that require community associations to entirely close or cease their operations. However, all Virginia businesses must, to the extent possible, “adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities while in operation.”
In addition, while business operations offering professional services may remain open under teh Orders, such operations must “utilize teleworking as much as possible” and also “adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and apply the relevant workplace guidance from state and federal authorities.” Under the Order, association offices and facilities should adhere to these guidelines.
Federal, state and local responses to COVID-19 are changing quickly. We encourage associations to monitor relevant government websites and this page for further updates.
Legal Disclaimer: This information is not intended to be legal advice. Legal advice must be tailored to the specific facts and circumstances of each case and each association’s governing documents. Also, it is not intended to be a full and exhaustive explanation of all legal considerations, nor should it be used to replace the individualized advice of your legal counsel.