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Summary of How N.C. Governor's Latest Executive Order Impacts Businesses

    Client Alerts
  • May 06, 2020

On Tuesday, North Carolina Governor Roy Cooper issued Executive Order 138, which eases some restrictions on travel, business operations, and mass gatherings. The order goes into effect at 5 p.m. on Friday and remains in place through 5:00 p.m. on May 22, 2020. Governor Cooper has indicated that this is the first of three phases to “re-open” North Carolina’s economy.

Unlike previous orders that defined which businesses could operate, all businesses that are not specifically mentioned may operate. Some businesses must operate under restrictions, as stated in the order, but most businesses will be able to operate in some form.

The order sets forth specific instructions for the operation of retail businesses. In order for a retail establishment to be open during this phase, it must adhere to the following restrictions:

  • Limit customer occupancy to not more than 50% of fire capacity. Retail businesses that do not have a stated fire capacity must limit customer occupancy to 12 customers for every 1,000 square feet of the location's total square footage, including the parts of the location that are not accessible to customers.
  • Limit customer occupancy so that customers can stay 6 feet apart, even if this requires reducing occupancy beneath the 50% limit stated above.
  • Direct customers to stay at least 6 feet apart from one another and from workers, except at point of sale if applicable.
  • Mark 6 feet of spacing in lines at point of sale and in other high-traffic areas for customers, such as at deli counters and near high-volume products.
  • Perform frequent and routine environmental cleaning and disinfection of high-touch areas with an EPA-approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19).
  • Provide, whenever available, hand sanitizer (at least 60% alcohol); systematically and frequently check and refill hand sanitizer stations; and provide soap and hand drying materials at sinks.
  • Conduct daily symptom screening of workers, using a standard interview questionnaire of symptoms, before workers enter the workplace.
  • Immediately send symptomatic workers home.
  • Have a plan in place for immediately isolating workers from the workplace if symptoms develop.
  • Post signage at the main entrances that reminds people to stay 6 feet apart for social distancing, requests people who are or have recently been symptomatic do not enter, and notifies customers of the reduced capacity.

The North Carolina Department of Health and Human Services will provide a sample screening checklist questionnaire and sample signs that maybe used to meet these requirements. However, use of the sample questionnaires and signs is not required.

Restaurants may do business only to the extent that consumption of food and beverages occurs off-premises through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that provide free food services to students or members of the public may continue to do so when the food is provided for carry-out, drive-through, or delivery. Bars are directed not to serve alcoholic beverages for on-site consumption.

Long term care facilities must restrict visitation of all visitors and nonessential health care personnel, except for certain compassionate care situations such as an end-of-life situation.

For purposes of the order, long term care facilities include all of the following:

  • Skilled nursing facilities.
  • Adult care homes.
  • Family care homes.
  • Mental health group homes.
  • Intermediate care facilities for individuals with intellectual disabilities.

Personal care and grooming businesses, including but not limited to the following, are ordered to remained closed:

  • Barber shops.
  • Beauty salons (including but not limited to waxing and hair removal centers).
  • Hair salons.
  • Nail salons/manicure/pedicure providers.
  • Tattoo parlors.
  • Tanning salons.
  • Massage therapists (except that massage therapists may provide medical massage therapy services upon the specific referral of a medical or naturopathic health care provider).

Entertainment facilities that operate within a confined indoor or outdoor space and do not offer a retail or dining component must remain closed as well. Any retail or dining component within an entertainment facility may operate solely for retail or dining, but those components must comply with the takeout restrictions on restaurants. Entertainment facilities restricted by the order include the following types of business:

  • Bingo parlors, including bingo sites operated by charitable organizations.
  • Bowling alleys.
  • Indoor exercise facilities (e.g., gyms, yoga studios, martial arts facilities, indoor trampoline, and rock climbing facilities).
  • Health clubs, fitness centers, and gyms.
  • Indoor/outdoor pools.
  • Live performance venues.
  • Movie theaters.
  • Skating rinks.
  • Spas, including health spas.

Gaming and business establishments that allow gaming activities (e.g., video poker, gaming, sweepstakes, video games, arcade games, pinball machines or other computer, electronic or mechanical devices played for amusement).

Mass gatherings are prohibited by the order. ''Mass gathering" means an event or convening that brings together more than 10 people at the same time in a single space, such as an auditorium, stadium, arena, conference room, meeting hall, or any other confined indoor or outdoor space. This includes parades, fairs, and festivals.

Mass gatherings do not include gatherings for health and safety, to look for and obtain goods and services, for work, for worship, or exercise of First Amendment rights, or for receiving governmental services. A mass gathering does not include normal operations at airports, bus and train stations or stops, medical facilities, shopping malls, and shopping centers. However, in these settings, people must follow the recommendations to promote social distancing and reduce transmission as much as possible, and they should circulate within the space so that there is no sustained contact between people.

Events are not prohibited mass gatherings if the participants all stay within their cars, such as at a drive-in movie theater.

Most of the restrictions in the executive order are minimum requirements, and local governments can impose greater restrictions. However, in order to create uniformity statewide, local restrictions cannot set different retail requirements than what Governor Cooper decreed in this order.

For more information, please contact me or your regular Parker Poe contact. You can find the firm's additional COVID-19 alerts here