How the Commonwealth's Phased Reopening Impacts Virginia's Franchised New Car and Truck Dealerships
- View Virginia's COVID-19 workplace safety requirements and VADA Q&A (updated August 6, 2020)
Localities in Phase Three:
- Every locality in Virginia, including the Northern Virginia Region and City of Richmond, entered Phase Three on Wednesday, July 1.
Localities in Phase Two:
- No Virginia localities are in Phase Two.
Localities in Phase One:
- No Virginia localities are in Phase One.
PHASE THREE
Read: Guidelines for All Business Sectors for Phase Three, from the Governor of Virginia.
Still considered “essential retail businesses,” service departments should comply with the Guidelines for All Business Sectors for Phase Three as best practices. That means continued compliance with physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety best practices, plus a posting of CDC materials as stipulated in the Guidelines.
The mandatory requirements in the Guidelines for non-essential brick and mortar retail—i.e., sales and finance departments—do not extend to the service department. The only limitation on the number of service and parts customers in the dealership is the practical one of ensuring proper physical distancing. Face mask requirements remain the same, as expressed below.
Still considered “non-essential brick and mortar retail,” sales and finance departments must comply with the mandatory provisions for non-essential brick and mortar retail stipulated in the Guidelines for All Business Sectors for Phase Three. Failure to comply requires closure. That means continued compliance with physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety best practices, plus a posting of CDC materials as stipulated in the Guidelines.
Also, franchised auto dealership sales and finance departments must:
- Post signage at the entrance that states that no one with a fever or symptoms of COVID-19, a positive diagnostic test for the virus that causes COVID-19 in the prior 10 days, or known exposure to a COVID-19 case in the prior 14 days, is permitted in the establishment.
- Post signage at the entrance and at points of sale stating that patrons must wear a cloth face covering in accordance with Executive Order 63.
- Post signage to provide public health reminders regarding physical distancing, gatherings, options for high-risk individuals, and staying home if sick.
- Employees and patrons must maintain at least six feet of physical distancing between individuals who are not members of the same household at all times.
- Retailers must 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. If six feet of space cannot be maintained between checkout lines, only operate alternate checkout lines.
- Employees and patrons must maintain at least six feet of physical distancing between individuals who are not members of the same household at all times.
- Employees are required to wear face coverings over their nose and mouth, such as using CDC Use of Cloth Face Coverings guidance.
- Patrons must wear face coverings over their nose and mouth in accordance with Section III of Executive Order 72.
- Practice routine cleaning and disinfection. Surfaces frequently touched by multiplepeople, such asdoor handles, desks, phones, light switches, and faucets, should becleaned and disinfected at least daily. More frequent cleaning and disinfection may be required based on level of use. Follow CDC Reopening Guidance for Cleaning and Disinfection and use an EPA-approved disinfectant to clean. Certain surfaces and objects in public spaces, such as point of sale keypads, should be cleaned and disinfected before each use.
Per Executive Order 72, issued December 10, 2020:
- All individuals in the Commonwealth aged five and older must wear a face covering when indoors. This includes all your employees.
- Sales and finance employees must wear a face covering at their place of employment. This is a change from the previous requirement that only those employees that are customer-facing need to wear a face covering.
- Service employees must wear a face covering at their place of employment. This is a change from the previous requirement that only those employees that are customer-facing need to wear a face covering.
- All such individuals must also wear a face covering when outdoors if unable to maintain six feet physical distance from others. See VADA's analysis of Virginia's face mask mandate for more, including signage downloads for your store(s).
Failure to adhere to the requirements in Executive Orders and the corresponding Guidelines 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’ sales/finance departments may enforce the Order to the extent permitted by law.
Executive Order 72 supplants Executive Order 67, which was used to enforce Phase Three of the Governor’s reopening plan, plus Executive Order 63, i.e., the “face mask mandate.” Those requirements persist, however, through this new Executive Order.
The Virginia Department of Health has the authority to enforce the requirements Executive Order 72 and the corresponding Guidelines place on non-essential brick and mortar retail. The State Health Commissioner is permitted to seek injunctive relief for violation of any such order. Further, noncompliance with the such an order 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.
PHASE TWO
On June 2, Gov. Northam announced most of the Commonwealth will enter Phase Two of the “Forward Virginia” reopening plan Friday, June 5. To implement this change, the Governor issued Executive Order 65 and corresponding Guidelines for All Business Sectors for Phase Two. As a reminder, each phase is expected to last two to four weeks or more.
What does Phase Two mean for my dealership?
All public and private in-person gatherings of more than 50 individuals are prohibited; however, the presence of more than 50 individuals performing functions of their employment is not considered a “gathering.”
Beyond an increase to the limit on social gatherings, it appears there are no differences between what is currently required for Virginia’s franchised auto dealers under Phase One and what will be required under Phase Two.
Does Phase Two change the face mask requirement for dealership employees?
No. All employees must still wear face coverings when working in customer-facing areas. Like Executive Order 61 before, Executive Order 65 requires non-essential brick and mortar retail employees (i.e., those in the sales/finance departments) to wear face coverings over their nose and mouth, such as using CDC Use of Cloth Face Coverings guidance customers.
Executive Order 65 does not alter the requirement under Executive Order 63, that employees of essential retail businesses (i.e., service departments) must wear face coverings when working in customer-facing areas.
We continue to recommend that all your employees wear face coverings, even when interacting with other employees.
What about face masks for customers?
All customers ages 10 and over must still wear face masks when entering, exiting, traveling through, and spending time in the dealership absent an exception (such as a health reason for not wearing a mask). This requirement applies to both essential and non-essential brick and mortar retail, meaning it applies to customers in both the service and sales/finance departments. Some customers may refuse to comply. Consult your organization’s legal counsel for what to do if a customer refuses to comply. Read our analysis of what’s required under Executive Order 63 (the face mask requirement) and the Governor’s FAQs for more.
Because Phases One and Two are the same with respect to restrictions on auto dealers and their customers (beyond the new social gatherings limit), you should be familiar with the following. However, for your convenience, we’ve provided a breakdown of the Phase Two requirements below.
In addition to this general overview, please carefully review the information in the tabs below for the full picture of what’s required for your dealership(s) under Phase Two. Please reach out with any questions.
- Like Executive Order 61 (Phase One), Executive Order 65 (Phase Two) 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 for Phase Two as best practices. That means continued compliance with physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety best practices, 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.
- Pursuant to Executive Order 63, all customers ages 10 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. We continue to recommend all your employees wear face coverings, even when interacting with other employees. Use common sense. See our analysis of Executive Order 63 (the face mask requirement) and the Governor’s FAQs for more.
- Like Executive Order 61 (Phase One), Executive Order 65 (Phase Two) treats dealership sales and finance departments as non-essential brick and mortar retail.
- Sales and finance departments must comply with the mandatory provisions for brick and mortar retail stipulated in the Guidelines for All Business Sectors for Phase Two. Failure to comply requires closure. That means continued compliance with physical distancing, enhanced cleaning and disinfection, and enhanced workplace safety best practices, plus a posting of CDC materials as stipulated in the Guidelines.
- It also means the following continued requirements for Virginia’s franchised auto dealerships. Stores must:
- 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.
- 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 Guidelinesand here, here, here, here, and here).
- Limit occupancy to 50% of the lowest occupancy load on the certificate of occupancy.
- Note: This requirement 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.
- 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.
- 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.
- Meeting rooms and other enclosed spaces should be closed to customers.
- 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.
- Note: Pursuant to Executive Order 63, 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. We continue to recommend all your employees wear face coverings, even when interacting with other employees. Use common sense. See our analysis of Executive Order 63 (the face mask requirement)and the Governor’s FAQs for more.
- Clean and disinfect frequently contacted surfaces — g., countertops and bathroom surfaces — at a minimum, every two (2) hours.
- 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.
- All public and private in-person gatherings of more than 50 individuals are prohibited; however, the presence of more than 50 individuals performing functions of their employment is not considered a “gathering.”
- Failure to adhere to the requirements in Executive Order 65 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’ sales/finance departments may enforce Executive Order 65 to the extent permitted by law. The Virginia Department of Health has the authority to enforce the requirements Executive Order 65 places on non-essential brick and mortar retail. The State Health Commissioner may also seek injunctive relief for violation of the Order. Further, noncompliance with the Order 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.
Every locality in Virginia except for the Northern Virginia Region and City of Richmond transitioned to Phase Two on Friday, June 5.
Due to health data trends in the Northern Virginia Region and City of Richmond, those areas have been on a timeline for reopening separate from the rest of the Commonwealth. Northern Virginia and Richmond will enter Phase Two on June 12.
PHASE ONE
Executive Order 61 (Phase One of reopening) is effective May 15, 2020 through Friday, June 5, 2020.
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.
- 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.
- 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.
- 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.
- 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.)
- (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.
- 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.
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.
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.
The content on this webpage is not intended as legal advice. If you require legal advice, please contact your attorney. The content on this webpage reflects information at the time the content was created and, given the changing circumstances surrounding COVID-19, is subject to change at any time.