The Legal Brief

By: Neil C. Brown and Justin M. Harrison

On April 16, 2020, the West Virginia Department of Health and Human Resources, Bureau for Public Health (“BPH”) promulgated an emergency rule in response to the ongoing COVID-19 pandemic.¹ This rule, titled Public Health Standards for Businesses Remaining Open During the COVID-19 Outbreak (hereafter referred to as the “Rule”), establishes uniform public health standards for businesses currently operating in the state of West Virginia during the declared state of emergency. This article will detail the applicability and requirements established by the Rule.

To Whom Does the Rule Apply?

• The Rule applies to all businesses in West Virginia that are permitted to remain operational or open to the public by Executive Order of the Governor of the State of West Virginia during the COVID-19 state of emergency and choose to remain operational or open to the public during the emergency.

How Long Will the Rule be in Effect?

• The Rule will be in effect for the duration of the declared state of emergency due to the COVID-19 pandemic.

What Does the Rule Require Businesses to Do?

1. Requirements relating to employees and business personnel. The Rule specifies the following requirements relating to a business’ workforce during the emergency:
   1. Implement a remote work program when possible. Specifically, the Rule requires businesses to direct their employees, contractors, and vendors to work from home, to the maximum extent possible, or to otherwise work remotely in order to limit the circumstances requiring their employees to leave home.
   2. Implement a written plan to limit staff, contractors, and vendors to essential personnel.
   3. Implement social distancing practices in the workplace where possible, including remaining at a minimum six-foot distance from other persons. 
   4. Supply multiple, adequate disinfecting and hygienic supplies and dispensers to staff and other persons as needed, such as disinfecting wipes or spray, hand sanitizer, and soap and water consistent with the number of persons allowed to be on the premises.
   5. Provide protective barriers for employees exposed to the general public.
2. Requirements relating to public access restrictions. In addition to creating requirements relating to the workforce, the Rule imposes the following requirements regarding public access restrictions during the emergency:
   1. For businesses whose sales are comprised of at least 80 percent grocery food products or more, no more than three members of the public may enter a business per 1,000 square feet of customer floor space at any given time.
   2. For all other businesses, no more than two individual members of the public may enter a business per 1,000 square feet of customer floor space at any given time. Businesses of less than 1,000 square feet of customer floor space must not permit that space to be occupied by more than five persons, including employees, at any given time.
   3. To ensure that the number of people per square foot requirements are not violated, each business must track the number of people who enter and leave the business and control the capacity on a one-in, one-out basis after the maximum capacity required by this section has been reached.
   4. Businesses must take actions to establish appropriate social distancing measures for the public to the greatest extent possible, including but not limited to, marking areas a minimum of six feet apart at any area where persons are likely to stand or wait in line, creating one-way aisles, and any other restrictions which limit close contact with other people.
   5. To the extent practicable, businesses must encourage customers to place their order ahead to allow customers to pick up and pay without entering the business.
   6. Businesses must prominently display the above directives in a conspicuous manner at each public point of entry to the business.

Violators of this Rule may be subject to an enforcement order issued by the BPH or local health officer and may be found guilty of a misdemeanor. This emergency Rule will require most businesses to create or modify existing policies and procedures.  Despite its intentions, this Rule is apt to create some compliance issues because many requirements are ambiguous and lack specificity, and provisions apply to all businesses. For example, does the square footage requirement apply to a business with multiple floors? What is a protective barrier? What are appropriate social distancing measures? We know six feet is a norm right now, but the Rule simply lists that as an example. How are healthcare facilities expected to implement these requirements? 

Jackson Kelly attorneys are ready to help your business comply with this Rule, and to serve as trusted advisors with respect to any operational issue you may face as part of the ongoing COVID-19 pandemic.

¹  W. Va. C.S.R. § 64-114-1 et seq.