Community Associations and Virginia’s “Phase 2” Executive Order [updated 6/10]

Governor’s EO61 (Third Amendment) and EO65 – “Phase 2” reopening to begin June 5 for most of Virginia, with NoVA and the City of Richmond following on June 12

Updated 6/10/2020

EO61/EO65 – Phase Two Re-Opening.  Effective June 5, most of the Commonwealth will begin “Phase Two” of its planned gradual reopening of certain businesses and activities. Phase One will remain in effect until June 11, 2020 for the Arlington, Fairfax, Loudoun and Prince William, as well as the Cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park (collectively, “NoVA”) and the City of Richmond.   NoVA and Richmond enter Phase 2 on June 12.

Under this Order, recreation centers, pools, and certain sports and exercise facilities are allowed to reopen for both indoor and outdoor activities, subject to numerous significant restrictions (see below for more information on Phase 2). Social gatherings of up to 50 individuals are allowed, except in certain locations where a smaller gathering size may be required based on the size of the facility.

EO-63 – Face Coverings.  For information regarding face covering requirements, click on the link here.

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 were required to remain in their residences, leaving only for certain activities.  EO55 expired on June 4 for the entire Commonwealth.

What are associations permitted to do under Virginia’s “Phase 2” reopening?

Updated 6/10/20

Effective 12:00 a.m. on June 5 in most jurisdictions, and continuing until further notice, the Commonwealth begins “Phase Two” of its planned gradual reopening of certain businesses and activities.  For general best practices, associations should review Virginia’s “Safer at Home: Phase Two Guidelines for All Business Sectors” on the Governor’s website https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/Virginia-Forward-Phase-Two-Guidelines.pdf .

Once a locality enters Phase 2 under EO65, fitness centers, recreation centers, pools, and certain sports and exercise facilities are allowed to reopen for both outdoor and indoor activities if a number of significant restrictions are implemented.

Please note that social gatherings restrictions have loosened from a maximum of 10 to no more than 50 individuals, or a specified percentage of the lowest occupancy load for certain facilities, as provided in the sector-specific guidance. 

Per EO65 and guidance published by the Governor’s Office, the following are some of the mandates that must be followed when opening recreational facilities under Phase 2 – if all requirements cannot be met, then the facility must remain closed:

All Recreation Facilities

• Strictly follow the physical distancing guidelines, enhanced cleaning and disinfection practices, and enhanced workplace safety practices provided in the “Safer at Home: Phase Two Guidelines for All Business Sectors” on the Governor’s website (https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/Virginia-Forward-Phase-Two-Guidelines.pdf.
• Patrons, members, and guests must remain at least ten feet apart during all activities.
• 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.
• Prior to entering the facility, should screen individuals for COVID-19 symptoms, via symptom-related questions, conducted in accordance with applicable privacy and confidentiality laws.
• Post signage at the entrance advising that persons with a fever, COVID-19 symptoms or known exposure to a COVID-19, are prohibited from entering the establishment.
• Post signage with public health reminders regarding physical distancing, gatherings, options for high risk individuals, and staying home if sick. (see the Governor’s Phase 2 Guidelines for links to sample signs)
• Hot tubs, spas, saunas, splash pads, spray pools, and interactive play features must remain closed.

Fitness Centers/Exercise Facilities

• See above under “All Recreation Facilities.”
• Occupancy limited to 30% capacity, while all individuals must maintain a physical distance of ten feet, including between instructors and participants of group exercise and fitness classes, and between personal trainers and their clients.
• Fitness equipment should be separated to ensure ten feet of physical separation when using the equipment.
• Facility operator must clean and disinfect shared equipment after each use.
• Prohibit the use of any equipment that cannot be thoroughly disinfected between uses (e.g., climbing rope, exercise bands, etc.), or equipment requiring more than one person to operate unless all are from the same household (e.g., free weights when it requires a spotter).

Indoor/Outdoor Pools

• See above under “All Recreation Facilities.”

• Hot tubs, spas, splash pads, spray pools, interactive play features, must remain closed.
• Can be open only for lap swimming, diving, exercise and instruction, with no more than three persons per lane, with 10 feet between swimmers.
• Individuals must maintain a physical distance of 10 feet, including between swimmers, instructors and class participants.
• Seating in pool areas may open with at least ten feet of separation between individuals of different households.
• Must clean and disinfect seating (including lifeguard stations) after each use.

Basketball/Racquetball Courts

• See above under “All Recreation Facilities.”
• Basketball courts and racquetball courts may operate provided patrons maintain ten feet of physical distancing – (e.g., no team play or one-on-one games).

Other FAQs

During Phase 2, are associations legally permitted to open their private gyms, fitness centers and other recreational facilities?

Updated 6/2/20

Yes, once the association’s jurisdiction enters into Phase Two of EO65, starting the morning of June 5 for most of Virginia (and a yet-to-be-determined date for NoVA and the City of Richmond), associations may open their private gyms, fitness centers, and other recreational facilities, including their basketball courts.  However, as provided, above, associations must strictly adhere to EO65’s Phase Two Guidelines for All Business Sectors, and its specific guidance for Fitness and Exercise Facilities.   If an association cannot ensure compliance with EO65’s requirements and guidance, the facility must remain closed.

For associations remaining in Phase 1, must their private gyms, fitness centers and other recreational facilities remain closed?

Updated 6/2/20

Yes, except that the Third Amendment to EO61 allows limited openings of certain outdoor recreation and fitness facilities, including outdoor swimming pools, with significant restrictions, including opening only for lap swimming, with one person per lane, with all seating areas closed, and enhanced cleaning and disinfecting requirements.

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 4 for most of Virginia, and as to be determined for NoVA and the City of Richmond (see above for more Phase 2 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, for Phase 1 and fifty individuals for Phase 2), 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.  At a minimum, reconfigure seating areas to allow for six feet of physical distancing between individuals, and practice routine cleaning and disinfection of high contact areas and hard surfaces.

Can associations operate indoor and outdoor pools and allow use by residents under the Governor’s Orders?

Updated 6/2/20

Yes, as localities enter the Phase 2 reopening process, recreation centers, pools and certain sports and exercise facilities are allowed to reopen for both indoor and outdoor activities, but only if a number of significant restrictions are implemented.  See above for information on the Phase 2 reopening requirements for pools.  Although the soon to expire (June 4) stay-at-home  order (EO55) prohibits social gatherings of more than 10 people, note that during the Phase 2 reopening (EO65), social gatherings may increase to up to 50 people, but require social distancing of 10 feet while engaging in both indoor and outdoor recreation/exercise.

For those jurisdictions that will remain in Phase 1 until further notice, 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, including, but not limited to, restricting outdoor pools to lap swimming only, with one person per lane, 10 feet of physical separation, all seating areas closed, and enhanced cleaning and disinfecting requirements.

If an association cannot ensure compliance with EO61 (for Phase 1) or EO65 (for Phase 2) requirements and guidance, the facility must remain closed.

Must associations shut down all operations under the Executive Orders?

Updated 5/11/20

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 the 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