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Client Alert: Governor Northam Modifies Mask Mandate to Align with CDC Guidance and Announces Virginia to End COVID-19 Mitigation Measures on May 28, 2021

The U.S. Centers for Disease Control and Prevention (“CDC”) issued new COVID-19 public health recommendations for fully vaccinated people on May 13, 2021, relating to the need to wear face coverings.  The new CDC guidance states that, “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”[1]  The justification behind the new guidance is that, “[c]urrently authorized vaccines in the United States are highly effective at protecting vaccinated people against symptomatic and severe COVID-19.  Additionally, a growing body of evidence suggests that fully vaccinated people are less likely to have asymptomatic infection or transmit SARS-CoV-2 to others.”[2]
 
In response to the new CDC guidance, Governor Northam entered Seventh Amended Executive Order Seventy-Two, which became effective on May 15, 2021, as well as Executive Order Seventy-Nine, which becomes effective midnight on May 28, 2021.  These orders bring Virginia in line with the new CDC mask guidance by directing that individuals in Virginia are to follow the CDC guidance, meaning that fully vaccinated people no longer need to wear masks under most circumstances.  People who are not fully vaccinated are still encouraged to wear masks.
 
In addition, Executive Order Seventy-Nine terminates all of the existing COVID-19 mitigation measures, such as capacity limitations, distancing requirements, and screening obligations.  Those restrictions are all contained in Executive Order Seventy-Two, and per Executive Order Seventy-Nine, “this Order terminates Seventh Amended Number Seventy-Two (2021) and Order of Public Health Emergency Nine . . . effective midnight on May 28, 2021.”[3]  Accordingly, all of the restrictions contained in Executive Order Seventy-Two will expire at midnight on May 28, 2021.  In its press release, the Governor’s Office stated, “Virginia is able to take these steps as a result of increasing vaccination rates, dramatically declining COVID-19 cases, hospitalizations, and statewide test positivity rate, and revised federal guidelines.”[4]  To be clear, the Governor stated in his May 14, 2021 video message that on “May the 28^th we will lift all of Virginia's mitigation restrictions on capacity and distancing in businesses and public spaces.”[5]
 
These actions by the Governor mean that, as of midnight on May 28, 2021, Virginia common interest communities will not be required to impose capacity restrictions, distancing requirements, or other COVID-19 mitigation measures that were previously mandated.  Association facilities may resume normal operations at that time and should be operated in compliance with the Association’s governing documents. What does this mean for the 2021 pool season?  It means, at the state level, pools can reopen in two weeks with normal operations on Memorial Day weekend.  Communities will still need to check with their local jurisdictions to determine whether any city or county-specific restrictions are in place.
 
Common interest communities should note that individuals who are unvaccinated or not fully vaccinated are still encouraged to take preventative measures, which includes wearing masks, so restrictions must remain in place requiring all residents to follow then-current CDC and state government mask guidelines. (See, e.g., CDC Guidance for Unvaccinated People here.) We are not recommending, however, that common interest communities attempt to determine whether a person has been fully vaccinated or that they attempt to exclude any person from using Association facilities based on the failure to wear a mask.  Doing so could conflict with other regulations, such as the Fair Housing Act, and is beyond the Association’s reasonable enforcement abilities. 
 
While capacity restrictions, distancing requirements and other COVID-19 mitigations will no longer be required as of midnight on May 28th, please note that common interest communities may still require that masks be worn in on-site management offices.  In addition, the state of emergency will remain in place until June 30, 2021, which means that common interest communities may continue to conduct completely virtual meetings until the virtual meeting changes to the Virginia Condominium Act and Property Owners’ Association Act take effect on July 1, 2021. 
 
Please note that this Alert is current as of May 17, 2021.  Government restrictions and guidance can change unexpectedly, so please be aware that any such changes will impact our recommendations for how Associations can remain in compliance.