Reopening Virginia’s Dealerships

On May 12, Governor Ralph Northam issued Executive Order 61, which revises the public health guidance in Executive Orders 53 and 55. Coinciding with the Order are newly released Guidelines for All Business Sectors, which stipulate restrictions and best practices for businesses in Phase One of the Commonwealth’s reopening plan: “Forward Virginia.”

Executive Order 61 will be effective Friday (May 15) through Wednesday, June 10, 2020 unless amended or rescinded by further executive action. In the meantime, carefully review the following information — it could be the difference between your store’s continued operations and forced closure.

UPDATE: Please carefully review Executive Order 63 and our corresponding analysis. Executive Order 63 modifies the face mask requirements under Executive Order 61 for dealership employees and customers.

Non-Essential Brick and Mortar Retail (Sales and Finance Departments)

• Like Executive Order 53, Executive Order 61 treats sales and finance departments as non-essential brick and mortar retail operations.
• Sales and finance departments must comply with the mandatory provisions for brick and mortar retail stipulated in the Guidelines for All Business Sectors. Failure to comply requires closure.
  • That means continued physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety plus a posting of CDC materials as stipulated in the Guidelines.

• • It also means nine (9) additional, mandatory requirements[1] for Virginia’s franchised auto dealerships. Stores must:

• • • (1) Post signage at the entrance that states that no one with a fever or symptoms of COVID-19, or known exposure to a COVID-19 case in the prior 14 days, is permitted in the establishment.
      • (Note: See this example.)

• • • (2) Post signage to provide public health reminders regarding physical distancing, gatherings, options for high risk individuals, and staying home if sick (samples included at the bottom of the Guidelines and here, here, here, here, and here).

• • • (3) Limit occupancy to 50% of the lowest occupancy load on the certificate of occupancy.
      • (Note: This new requirement replaces the 10-patron/customer limit under Executive Order 53 and applies to both customers and dealership personnel. If you do not know your store’s lowest occupancy load, your locality’s building inspector office may have the answer. If your lowest occupancy load is 100, you are permitted 50 employees and customers or less physically present at any one time. Because others outside your organization may question your compliance with the new occupancy limitation, you should obtain and/or maintain documentation proving your lowest occupancy load.)

• • • (4) Assist customers in keeping at least six feet of space between individuals or households while shopping and waiting in line. Mark floors in six-foot increments in areas where customers will be congregating or standing in line such as cashier areas.

• • • (5) If seating is available, provide a minimum of six feet between tables; if tables are not movable, parties must be spaced at least six feet apart.

• • • (6) Meeting rooms and other enclosed spaces should be closed to customers.

• • • (7) Employees working in customer-facing areas are required to wear face coverings over their nose and mouth, such as using CDC Use of Cloth Face Coverings guidance.
      • • • • UPDATE: Pursuant to Executive Order 63, starting Friday (May 29), all customers aged ten and over must wear face masks at your dealership, no matter the department. Employers must provide face coverings to employees, and ALL employees must wear them when facing customers and when social distancing cannot be strictly maintained. Failure to comply may result in store closure or other penalties. It remains our recommendation to have all your employees wear face coverings, even when interacting with other employees. Use common sense. See our analysis of Executive Order 63 for more.
    • (8) Clean and disinfect frequently contacted surfaces — e.g., countertops and bathroom surfaces — at a minimum, every two (2) hours.

• • • (9) No self-service food. Self-service beverage areas must use beverage equipment designed to dispense through a contamination-free method.
      • (Note: It is our understanding this means only vending machines are permitted for food and only vending machines and/or water coolers are permitted for beverages, so long as the machines and/or coolers are designed to dispense through a contamination-free method and frequently sanitized.)

Essential Retail Businesses (Service Departments)

• Like Executive Order 53, Executive Order 61 treats automotive parts, accessories, and tire retailers as well as automotive repair facilities as “essential retail businesses.”
• Service departments should comply with the Guidelines for All Business Sectors as best practices.
  • That means continued physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety plus a posting of CDC materials as stipulated in the Guidelines.

• • Other requirements listed above that are mandatory for sales and finance departments do not extend to service departments under Executive Order 61 or the Guidelines.

• The only limitation on the number of service and parts customers in the dealership is the practical one of ensuring proper physical distancing.
• UPDATE: Pursuant to Executive Order 63, starting Friday (May 29), all customers aged ten and over must wear face masks at your dealership, no matter the department. Employers must provide face coverings to employees, and ALL employees must wear them when facing customers and when social distancing cannot be strictly maintained. Failure to comply may result in store closure or other penalties. It remains our recommendation to have all your employees wear face coverings, even when interacting with other employees. Use common sense. See our analysis of Executive Order 63 for more.

Social Gatherings and Enforcement of Executive Order 61

• All public and private in-person gatherings of more than 10 individuals are prohibited; however, the presence of more than 10 individuals performing functions of their employment is not considered a “gathering.”
• Failure to adhere to the requirements in Executive Order 61 may result in store closure and/or a Class 1 misdemeanor and up to one year in jail. Any state agency with regulatory authority over Virginia’s franchised auto dealerships may also enforce Executive Order 61 to the extent permitted by law. Further, noncompliance could jeopardize the continued ability of any VADA member to remain open during this difficult time. Do not underestimate the government’s power to shut down franchised auto dealership operations. Use common sense, and err on the side of caution.

Northern Virginia, Accomack County, and Richmond

The Counties of Arlington, Fairfax, Loudoun, and Prince William, and the Cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, as well as the Towns of Dumfries, Herndon, Leesburg, and Vienna, collectively referred to by the Governor as “Northern Virginia Region,” entered Phase One Friday, May 29, 2020.

The same is true for the County of Accomack and the City of Richmond; however, the County of Accomack entered Phase Two on Friday, June 5, 2020. It is expected that The Northern Virginia Region and City of Richmond will enter Phases Two on Friday, June 19, 2020.

For VADA members in those localities, the Governor has indicated you are on a different timeline relative to businesses in other parts of the state, which entered Phase One on May 15. Each phase is expected to last 2-4 weeks or more.

If you have questions about any of the above, please contact Anne Gambardella, Esq. or Tommy Lukish, Esq. Anne is available at (804) 545-3006 or AGambardella@vada.com. You can reach Tommy at (804) 545-3028 or TLukish@vada.com.