Virginia Community Associations and Governor’s Face Covering Order [5/28/20]
FAQs: Virginia Governor’s Executive Order (EO63) on Face Coverings Inside Buildings
On May 26, 2020, Governor Northam issued Executive Order No. 63. Noting that the virus that causes COVID19 remains an ongoing threat as Virginia “reopens” its businesses, EO63 sets forth requirements for Virginians to wear CDC-recommended cloth face coverings in certain circumstances outside their homes. The Order requires “patrons” (ages 10 and up) to wear face coverings as they enter, exit, travel through and spend time in certain indoor settings, such as barbershops and salons; brick and mortar retail businesses; restaurants; trains, buses, taxis and rideshares; and government buildings. The requirement also applies to entertainment/recreational businesses, providing that face coverings are also required when patrons are outdoors at such venues if a distance of six feet from every other person cannot be maintained.
While focusing primarily on businesses, EO63 also requires face coverings for patrons while in “any other indoor place shared by groups of people who are in close proximity to each other.” The restriction does not apply to persons in their own residences or the residences of others.
EO63 takes effect on May 29, 2020. The Order will be enforced through the Virginia Department of Health, with violations to be punishable as a Class 1 misdemeanor. Also, the Order notes some exceptions to the face cover requirement (see below).
Below are some FAQs regarding EO63 as it applies to community associations. Please note, however, that EO63 has some terms that are somewhat unclear, so the answers below are subject to change based upon additional guidance issued by the Governor, as has been the case with prior Executive Orders.
Do Virginia community association residents have to wear face coverings when they are inside their homes?
No. EO63 is clear that residents need not wear masks in their own residences, or the residences of others.
Do Virginia community association residents have to wear face coverings in indoor common areas?
Yes, it appears so. While EO63 could be more clear, it expressly requires that “patrons” wear face coverings while entering, exiting, traveling through and spending time in any “indoor place shared by groups of people who are in close proximity to each other.” Based on interpretations of previous Executive Orders, absent further clarification, we believe this means residents must wear face coverings when they are traveling through or spending time in indoor condominium and HOA common areas, such as hallways, elevators, lobbies and similar areas where one may encounter other people.
Do Virginia community association residents have to wear face coverings when in the outdoor common areas?
No, if the resident is only traveling through such areas. However, if a resident is using an association’s outdoor recreational amenity, it appears that under EO63, the resident must wear a face covering if a six-feet distance from every other person cannot be maintained. Note that face covering is not required while a person is exercising (see other exceptions below). Although EO63 refers to public recreational businesses, the Governor’s Office has interpreted similar language in prior EOs to apply to community association pools and other recreational facilities.
Does the face covering requirement apply to guests or visitors to a Virginia condominium or HOA building?
Yes, it appears so. Just as the face-covering requirement arguably applies to residents in a community association, the same requirement would apply to guests and visitors of residents, including resident-hired contractors.
Should an association put up signs indicating that face coverings are required in indoor common areas?
While EO63 does not expressly require signage, we recommend that signage be posted that refers to the Governor’s Order and states that face coverings are required in indoor common areas.
What are the exceptions to the face covering requirements of EO63?
The requirement to wear a face covering does not apply to:
(1) persons while eating or drinking; (2) individuals exercising or using exercise equipment; (3) any person who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance; (4) any person seeking to communicate with the hearing impaired and for which the mouth needs to be visible; (5) when temporary removal of the face covering is necessary to secure government or medical services; and (6) persons with health conditions that prohibit wearing a face covering. In fact, EO63 states that “[n]othing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition. Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.”
How is the face covering requirement to be enforced?
EO63 states that it will be enforced by the Virginia Department of Health (VDH), with violations treated as Class 1 misdemeanors. According to news reports, the VDH Director of Communications released the following statement: “VDH has the power to enforce egregious patron/customer violations through a court order, which is punishable by a Class One misdemeanor. Many businesses also have face covering requirements for their employees as outlined in Phase One restrictions (restaurants, salons, etc.), which are enforced by the health department and the relevant regulatory agency. We are not looking to put anyone in jail – we are focused on education, and we hope and expect that Virginians will do the right thing.”
To the extent that community associations decide to require face coverings by their own rule or regulation, enforcement could also be carried out through the association’s usual rules enforcement process.
Can a Virginia community association now open its gym, fitness center or other indoor recreational spaces?
Not yet. Per the Governor’s prior EO61, only outdoor recreational facilities (to a limited degree) may be opened in Virginia’s “Phase 1” reopening. Indoor gyms, fitness centers and other indoor recreational spaces must remain closed as of this date. See our prior CWMEB Journal entry on the Phase 1 requirements for details.
Do community associations have to provide face masks for Owners, residents, guests, or invitees?
No, this is not required under EO63.
What is the duration of the requirements of EO63?
Indefinitely, until the Governor issues a further Executive Order amending or rescinding EO63. We will continue to provide updates with any substantive changes of which we become aware.
When do the Northern Virginia localities, Richmond and Accomack begin the “Phase 1” reopening?
These localities join the rest of the state in the “Phase 1” reopening on May 29, 2020. Information on Phase 1 can be found in our CWMEB Journal entry here.
Federal, state and local responses to COVID-19 are changing quickly. We encourage associations to monitor relevant government websites and this website 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.