Tag: covid-19

Do You Have More Time to Bring your Claim?

Posted on by Brigitte Flores

Virginia Court of Appeals confirms that the time to file claims was extended by the Supreme Court of Virginia’s Emergency COVID-19 Orders

 

On November 29, 2022, the Court of Appeals of Virginia (the “Court of Appeals”) issued its opinion in George English v. Thomas William Quinn, which held that the Supreme Court of Virginia’s (the “Supreme Court’s”) emergency orders entered between March 16, 2020 and July 8, 2020, in response to the COVID-19 pandemic, tolled and extended all statutes of limitations for all claims, and not just those whose time for filing expired prior to August 2020.

The case arises out of a dispute pending before the Circuit Court of the City of Roanoke, Virginia (the “Circuit Court”). There, the Circuit Court dismissed a personal injury claim earlier this year that was originally filed in November 2020 related to an automobile accident that occurred on July 28, 2018. Ordinarily, the time for filing this personal injury claim would have expired two years later on July 28, 2020.   However, on March 16, 2020 the Supreme Court of Virginia issued an order declaring a judicial emergency in response to the COVID-19 pandemic. The first judicial order “tolled and extended” “all deadlines” in all Virginia courts for twenty-one days.  As COVID-19 raged one, the Supreme Court then entered several more similar orders. The last of the seven emergency orders limited the tolling period to the 126 days between March 16, 2020 and July 19, 2020.

In the case before the Circuit Court, the Defendant, Mr. Quinn, argued that the Supreme Court’s emergency orders only paused the statute of limitations period for claims, which expired during the 126-day time-frame. The Plaintiff, Mr. George, argued that the effect of the Court’s emergency orders was to pause all statute of limitations for all actions pending before the courts of Virginia, and not just expiring during the 126-day period. The Circuit Court agreed with the Defendant and dismissed the Plaintiff’s case. The Plaintiff appealed to the Court of Appeals.

The Virginia Court of Appeals reviewed and rejected the Circuit Court’s ruling and agreed with the Plaintiff, that the effect of the Supreme Court’s emergency orders was a pause on all statute of limitations during the 126-day window.  The Court of Appeals determined that the Circuit Court erroneously concluded that the emergency orders tolled only the statutes of limitations and deadlines “that would expire during the (126 day) tolling period.” Therefore, the Plaintiff’s claim was not time-barred. The Court of Appeals reversed the decision of the Circuit Court and sent the case back to the Circuit Court for trial.

This Court of Appeals decision is important, because, if you have a cause of action, which was pending during the 126-day suspension period, you may have more time than you anticipated to bring your claim. If you have any questions on how this decision may apply to a case which you are involved, please contact our office.

 

Virginia Employers Need to Revisit Their COVID-19 Workplace Protocols with the Recent Amendment to Virginia’s Permanent Standard

Posted on by Brigitte Flores

The Safety and Health Code Board of the Virginia Department of Labor and Industry (DOLI) voted and approved updates to the previous January version of the permanent standard. The amendments became effective as of September 8, 2021.  The new standard, found here, keeps many of the original standard’s requirements, however, it contains several new requirements in an effort to match the more recent guidance from the Centers for Disease Control and Prevention (CDC) regarding mask use and other recommendations such as quarantining.

The new standard does away with defining levels of risk for all but “higher-risk” workplaces, and now bases many of its requirements on the level of community transmission of the SARS-CoV-2 virus, which is in line with the recommendations by the CDC.  Since most of Virginia is currently in a substantial or high status of virus transmission, these requirements must be noted by employers.

Some of the changes that employers should now carefully review based upon the recent amendments include the following:

16VAC25-220-40:  Mandatory requirements for all employers were added/modified.

The updated standard now requires all covered employers to implement a COVID-19 policy, covering areas such as (i) workplace safety practices and procedures, (ii) mandatory reporting, (iii) return to work procedures after a COVID-19 exposure or diagnosis, (iv) practices for workplace visitors, and (iv) a method to receive anonymous complaints of violations.

The updated standard changes many of the applicable workplace safety practices and procedures to differentiate between fully vaccinated employees and employees who are unvaccinated or otherwise at risk. Including updated language regarding required face coverings for employees who are not fully vaccinated, as well as employees who are fully vaccinated but are currently in areas of substantial or high community transmission, and employees who are otherwise at-risk, with certain exceptions and accommodation requirements noted in 16 VAC25-220-40(G).

The reporting requirement to the Virginia Department of Health (VDH) within 24 hours of becoming aware of any confirmed COVID-19 cases at the worksite remains for all employers when there are two or more cases within a 14-day period, and that now matches the reporting requirements to DOLI.

The amended standard has updated the return to work requirements, and requires those with a known exposure to someone with COVID-19 to follow testing and quarantine guidance from the VDH. The return to work requirements for those employees suspected to have COVID-19 (even if vaccinated) include a return to work only after a negative PCR test (paid for by the employer), or per the advice of a healthcare professional or VDH, or consistent with CDC guidance. Those employees known to have COVID-19 may only return to work after guidance from a healthcare professional or VDH, or consistent with CDC guidance.

16VAC25-220-50: Requirements for healthcare services or healthcare support services were added.

Language was added to address the adoption on June 29, 2021 of the federal OSHA COVID-19 Emergency Temporary Standard (OSHA ETS) by the Virginia Safety and Health Codes Board applicable to all settings where any employee provides healthcare services or healthcare support services. The OSHA ETS became effective in Virginia on August 2, 2021.  https://www.doli.virginia.gov/emergency-temporary-standard-interim-final-rule/

When the OSHA ETS is no longer in force, 16VAC25-220-50 will apply to employers in healthcare services and healthcare support services.

16VAC25-220-60: Requirements for higher-risk workplaces were added.

Higher-risk employers include but are not limited to, manufacturing, meat and poultry processing, high-volume retain and grocery, transit, seafood processing, correctional facilities, jails, detention centers, and juvenile detention centers.

 16VAC25-220-70: Requirements for infectious disease response plan modified.

The updated standard requires employers with higher-risk workplaces and 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan covering certain specific practices and to train employees on such plan. The deadline to implement such a written plan is October 8, 2021.

16VAC25-220-80: Requirements for training modified.

The training deadlines for those covered by 16VAC25-220-50, and 60 are November 7, 2021.

Virginia employers who need help updating their protocols to comply with Virginia’s recent changes to the permanent standard should contact shareholder and attorney Wendy Alexander at 703.680.4664 x5117.

 

Virginia Adopts Permanent Standard in Response to COVID-19

Posted on by Brigitte Flores

The Virginia Safety and Health Codes Board recently voted to approve a permanent safety and health standard (“Permanent Standard”) requiring employers to take steps to prevent workers from contracting the Coronavirus (COVID-19).  The Permanent Standard provides updates to the Temporary Emergency Standards that were adopted on July 15, 2020. The Permanent Standard became effective on January 27, 2021 and will remain in place at least until any state of emergency related to COVID-19 is lifted.

The Permanent Standard maintains many controls put in place to protect employees from workplace exposure, such as wearing face coverings, social distancing, hand hygiene procedures, frequent cleaning of high contact surfaces. The Permanent Standard also also maintains the various classifications of job related exposure risks: “very high”, “high”, “medium” or “lower”.  However, some revisions have gone into the various definitions within the standards, and the requirements of the controls.  For example, the Permanent Standard now requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control. The requirements include increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

The Permanent Standard contains several significant changes of which all employers should be aware including, among other things:

  • While “exposure” is still not a strictly defined term- the Permanent Standard makes it clear that “duration and frequency of exposure” considers how long and how often an employee is potentially exposed to COVID-19 disease under both acute and chronic situations.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees at the workplace within a 14-day period.
  • Eliminating the test-based return-to-work requirement and changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day (consistent with CDC guidance).
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.

The Permanent Standard does not address COVID-19 vaccines, or whether employers can require their employees receive a COVID-19 vaccine.

Although the Permanent Standard is similar to the Temporary Standard, employers in Virginia should take the opportunity to review and revise their existing policies and procedures as necessary regarding COVID-19 to ensure compliance with the Permanent Standard.

Virginia employers that fail to comply with the Permanent Standard are subject to fines up to $12,726 for serious violations and $127,254 for willful violations.

Covered employers  have until March 26, 2021 to re-train employees on the Infectious Disease Preparedness and Response Plan required under §16 VAC 25‐220‐70 (for “very high”, “high” and “medium” exposure risk level employees). Covered employers will  still need to train employees on the standard itself under §16 VAC 25‐220‐80.E.

Any employer wanting assistance with reviewing the Permanent Standard and/or revising their Office Policies/Protocols and/or Infectious Disease Preparedness and Response Plans should contact shareholder Wendy Alexander at 703-680-4664 for assistance.

New COVID-19 Restrictions in Virginia

Posted on by Brigitte Flores

As most Virginians are aware, Governor Northam announced additional COVID-19 related restrictions statewide that went into effect at 12:01 a.m. on Monday, December 14. The restrictions include a modified stay at home order and a limit of 10 individuals for social gatherings. This mandate will be in effect through January 31, 2021 unless rescinded or amended.

Following are some of the new measures that took effect at 12:01 a.m. on Monday, December 14:

Universal mask requirements: All Virginians aged five and over are required to wear face coverings in indoor settings shared with others and when outdoors within six feet of another person. This order expanded the previous statewide mask mandate.

Reduction of social gathering limit to 10 people: All public and private in-person gatherings must now be limited to 10 individuals, down from the previous cap of 25 people. This includes outdoor and indoor settings. Social gatherings include, but are not limited to, parties, celebrations, or other social events, regardless of whether they occur indoors or outdoors. This does not apply to religious services, employment settings, or educational settings.

Modified stay-at-home order with curfew between 12:00-5:00 a.m.: All individuals in Virginia must remain at their place of residence between the hours of 12:00 a.m. and 5:00 a.m. Exceptions include obtaining food and goods, traveling to and from work, and seeking medical attention.

Continued limits on dining, retail, recreational establishments: Virginia businesses, including but not limited to, restaurants, retail, and gyms are currently governed by strict social distancing and sanitization requirements. For the latest requirements included in the Governor’s newest Executive Order Seventy-Two, click here.

Virginia’s Emergency Temporary Standards continue to apply to all businesses, even those that may not be specifically listed in the Executive Orders’ workplace requirements.

Our Covid-19 Response Team continues to be available to any individual or business that needs help interpreting the requirements of the Executive Orders or the Emergency Temporary Standards.

Families First Coronavirus Response Act & Unemployment Insurance Procedures

Posted on by Brigitte Flores

Employees of Private Employers With Fewer Than 500 Employees and Most Governmental Entities Obtain Expanded Leave, Paid Sick Leave

“Families First Coronavirus Response Act,” (H.R. 6201) Passed March 18, 2020

If you are an employer with fewer than 500 employees, you are likely going to be required to provide paid leave to employees who are unable to work because of certain circumstances relating to the Coronavirus pandemic. Employers should be prepared to implement these requirements on or before April 2, 2020.

WHO: Employers with fewer than 500 employees and governmental employers must provide employees with expanded leave which modifies the Family Medical Leave Act (FMLA).

Expansion of Family Medical Leave Act: Coronavirus Emergency Leave Protection

ELIGIBILITY: Employers must provide up to twelve (12) weeks of job-protected leave under the FMLA for employees who are unable to work or telework because they have to:

  1. Provide care for child younger than 18 whose school or day care has closed in response to the coronavirus (Employees providing care for a child whose day care or school has closed would be eligible for 2 weeks of unpaid leave and up to an additional 10 weeks of paid leave (payable at a rate that is not less than two-thirds the employee’s regular rate of pay up to a maximum of $200 a day, $10,000 aggregate cap).

For these employees, the first 10 days of leave can be unpaid, however, employees can choose to use vacation days, personal leave or other available paid leave (see below).

REQUIREMENTS: This leave protection requires that the employee return to the same position at the conclusion of the leave for the public health emergency. If the employer is unable to immediately reinstate the employee to the same job due to job cuts and/or the position is no longer in existence, the employer must make “reasonable efforts” to reinstate the employee during the year following the conclusion of the leave. This leave is required for any employee who has been employed for 30 days.

EXCEPTIONS: Employers with fewer than 25 employees do not have to restore employees to their previous positions.

The legislation goes into effect on April 2, 2020 and expires Dec. 31, 2020.

Paid Sick Leave: Coronavirus Emergency Paid Sick Leave

WHO: Employers with fewer than 500 employees and governmental employers must provide employees with temporary paid sick time. Employees must be allowed to use this additional paid sick leave before using any other paid leave benefits.

ALLOTMENT: The duration and amount depends on whether the employee is full time or part time. For a full-time employee, the employer is required to provide 80 hours (2 weeks) of paid sick time for specific circumstances related to COVID-19. For a part-time or hourly employee, employer-provided paid sick leave would be the hours the employee is scheduled to work (on average) in a two-week period. For a variable-hour employee, the Act provides for a calculation based upon historical work or anticipated work. All employees are eligible no matter how long they have been employed.

RATE: The rate of pay depends upon the reason for the employee’s absence. For absences based upon the employee’s condition, paid sick leave must be paid at the employee’s regular rate. For absences based upon a family member’s situation, pay will be no less than two-thirds of the employee’s regular rate.

ELIGIBILITY: Emergency paid sick leave is for an employee who is unable to work or telework because the employee:

  1. Is subject to a coronavirus-related government order to go under quarantine or isolation
  2. Has been advised by a healthcare provider to self-quarantine due to concerns related to coronavirus
  3. Is seeking a medical diagnosis where the employee is experiencing symptoms of coronavirus
  4. Is caring for an individual for whom quarantine or isolation is required
  5. Has children whose school or place of care has closed or the child care provider is unavailable due to coronavirus precautions
  6. The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and Department of Labor

CAPS: There are caps on the amount of payments under this new sick leave (sick leave will not exceed $511 per day based on the applicant’s regular wage or the applicable minimum wage, whichever is greater, if used for 1-3 and not exceed $200 per day based on the applicant’s regular wage or the applicable minimum wage, whichever is greater, if used for 4-6).

EXCEPTIONS: The Act includes an important exception for certain employers. Employers of healthcare providers or emergency responders may elect to exclude those employees from emergency paid sick leave.

OTHER: The Act authorizes the Labor Department to issue regulations to:

  1. Exclude certain healthcare providers and emergency responders from paid leave benefits
  2. Exempt small businesses with fewer than 50 employees from the paid leave requirements

Workers under a multiemployer collective bargaining agreement and whose employers pay into a pension plan will also have access to paid leave.
There is no payout requirement for any paid sick time that is not used at the time of any employee’s termination, resignation, or retirement.

The legislation goes into effect on April 2, 2020 and expires Dec. 31, 2020.

Payroll Tax Credits: Sick Leave Credit and Family Leave Credit

To help small businesses cope with the impact of the coronavirus pandemic, the Act provides for two payroll tax credits. It is critical to note that these credits are only available to employers with fewer than 500 employees.

Sick leave credit — not to exceed $511 per employee per day. This credit is designed to assist with the cost of providing up to two weeks of paid coronavirus-related sick leave to employees. The credit is limited to 10 days and is in effect for wages paid through December 2020. In addition, the employer cannot use this credit in connection with wages for which the employer is already receiving the employer credit for paid family and medical leave, under a provision previously enacted by the Tax Cuts and Jobs Act (TCJA). On a quarterly basis, the credit is limited to the total taxes imposed on the employer portion of the Social Security payroll tax and is refundable in certain circumstances.A similar credit is available to self-employed individuals, amounting to the lesser of their average daily self-employment income, or $511 per day, if caring for themselves or $200 if caring for a family member. The credit is limited to 10 days.

Family leave credit — not to exceed $10,000 per employee. This credit is designed to compensate employers for providing paid coronavirus-related family leave to employees as separately required under the Emergency Family and Medical Leave Expansion Act. Similar to the sick leave credit, this credit is also limited to the employer portion of the Social Security payroll tax on a quarterly basis but is refundable in certain circumstances.

The Act instructs the Treasury Department to issue guidance on documentation requirements. Until such guidance is issued, taxpayers should track the following information:

  1. Each employee requesting sick leave due to the COVID-19 virus; document whether the employee is caring for themselves or a family member
  2. Compute employee wages compared to the requisite $511 or $200 per day in order to determine the actual amount of the credit

Be prepared to supply such information as part of quarterly payroll tax return or annual income tax return filings.

Virginia’s Unemployment Insurance Procedures in
Response to Coronavirus

The Commonwealth of Virginia just this past week relaxed standards for Virginian’s to be eligible for unemployment benefits including when they are working reduced hours if their earnings qualify. Also there is now no waiting period before benefits kick in.See the below a Q&A excerpt from the Virginia Employment Commission (VEC) website. With the rapid changes the VEC is advising regularly checking on status updates.

Q. When should I file a claim for unemployment compensation benefits?

A.  You should file your claim online (**preferred method) through our Website at vec.virginia.gov after you have been out of work at least 1 full day. If you do not have access to a computer, you can file your claim through our Customer Contact Center by calling 866-832-2363 Monday through Friday 8:15am to 4:30pm. Your claim will be effective Sunday of the week in which you submit your on-line application or file through our Customer Contact Center.

Q. My hours have been reduced. Can I apply for unemployment compensation benefits?

A. You can file due to a reduction in hours. If your gross earnings are less than your weekly benefit amount. Currently, the maximum weekly benefit amount in Virginia is $378.

Q. What happens after I complete my unemployment insurance application?

A.  Once your claim is processed by the VEC, you will receive three important documents. The Benefit Rights document explains eligibility requirements and what you need to do each week to claim your benefits. The Monetary Determination document shows how much money you may be eligible to receive. You will also receive a PIN. You need the PIN to claim weekly benefits and to make inquiries about your claim.

Q. How much money will I qualify to receive?

A.   Depending on your earnings, your benefit amount may range from a minimum of $60 per week for 12 weeks to a maximum of $378 a week for 26 weeks. (Refer to your Monetary Determination)

Q. How soon before I can expect a benefit payment?

A.   Beginning with claims effective March 15, 2020, Governor Northam has directed that the one week waiting period and the requirement to conduct a weekly job search both be suspended for those receiving unemployment insurance benefits. If you are eligible for benefits, a payment should be processed shortly after you claim your first full week. You will need to refer to the Benefit Rights document for instructions on claiming weekly benefits.

 

 

Contact Us
For any employment matters, please contact:
Wendy A. Alexander
Employment Law Attorney
walexander@thelandlawyers.com
(703) 680-4664