Tag: Employment Law

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

A Virginia Business Owner’s Guide to Drafting an Employee Manual

Posted on by Wendy Alexander

Employee ManualTwo questions frequently asked by our Virginia business clients concern the importance of an employee manual and who should draft it. There is no doubt that if you have more than a few employees, a well-written employee manual can effectively communicate your workplace policies and help you reduce the risk of a lawsuit.

While employment in Virginia is considered at-will, meaning either party can decide to end employment for any reason or no reason, business owners who employ a certain number of employees must be aware of, and comply with, federal and state laws designed to protect against unlawful termination practices. By providing each employee with an employee manual, an employer can be sure its employees know in specific terms what is expected of them. Keeping the manual up to date (and, most importantly, consistently abiding by it) minimizes an employer’s exposure to unlawful termination claims, wage claims, and other employment-related litigation.

No manual is able to cover every policy consideration, and it’s best to make this clear to your employees by saying so in the manual. Along the same lines, it’s important to give yourself flexibility to add to, or subtract from, the manual’s written policies on an as-needed basis. Perhaps just as important as what should be included in the manual is what should not. Here are a few categories of what not to put in your manual:

  • Unconditional Promises. Unless you want to create an employment contract that obligates your employee to work for you for a fixed period of time, thereby taking the employment out of the at-will category and limiting your right to fire the employee for the same period, don’t include language that promises employees a job as long as they are not in violation of the rules, or refers to any employee’s position as “permanent.” Similarly, even referring to new hires as “probationary employees” can get employers in trouble, because the term “probationary” can create an expectation that the employee’s status will change after he or she completes the period. Because a court might interpret these scenarios as contracts of employment, preventing you from firing your employees without good cause, the language in the manual must be chosen carefully.
  • Detailed Disciplinary Practices. While it is not uncommon for employers to want to follow some form of progressive discipline for performance problems or misconduct on the job, employers need to be careful when crafting discipline policies. If an employer adopts an overly descriptive and/or restrictive discipline policy (such as starting with a verbal warning, followed by a written warning, followed by a probationary period or suspension, then termination for subsequent problems), this unnecessarily binds the employer to a much more stringent and time-consuming process. Such a restrictive discipline practice will make it difficult for the employer to deviate from the process without claims of unfair treatment. Don’t obligate yourself to follow a particular disciplinary pattern for every employee in every circumstance. If you do, you may find it difficult to fire an employee for gross misconduct. A good disciplinary policy should keep the employer’s options open. And never promise “due process” or anything similar for disciplinary actions or grievances.
  • Employer-Provided Benefits Policies. Overly detailed policies concerning employer-provided benefits can be troublesome because they tend to become too complex. With all the detailed information contained in group insurance policies and the overlap of state and federal leave laws, employer-provided benefits should be only generally summarized in the manual. Employees should be referred to management or human resources for full plan details. When these policies are too detailed, they run the risk of misstating or omitting important facts, resulting in potential problems for the employer.

While no single article can address all of what should and should not be included in an employee manual, it is important to have a competent employment lawyer perform a thorough review of your employment policies to ensure they meet the legal requirements for your business practice. Because no two companies are alike, and no company is like yours, searching online for a template or borrowing a manual prepared by another company is risky at best. The size and type of business and the ever-changing landscape of state and federal laws make it essential for each business owner to tailor its employee manual to its business operation.

Our firm has helped businesses draft employee manuals from start to finish and provided a thorough review and updating of existing manuals to ensure they meet legal requirements. We recommend periodic (at least annual) reviews to ensure the policies are current and valid. Continuing to use out-of-date policies is just as dangerous as inconsistently applied policies.

To get help with your company’s employee manual, or to ensure it is in compliance with Virginia employment law, please contact Wendy Alexander.

Employee Spotlight

Posted on by thelandlawyers
Wendy Alexander
Wendy Alexander

In high school, Wendy performed in show choirs and musical theatre, and received high marks in her civics and government classes. She decided to major in government at the University of Virginia and there, during a commercial law course, her career came into focus. Later, in a trial advocacy class in law school, Wendy realized that litigation was her calling. As she explains, trial practice can be very similar to a theatrical production—you have to be a powerful public speaker, persuasive in your story telling, and, above all, always prepared.

The daughter of a Naval Commander, Wendy is currently a master of the George Mason American Inn of Court, has been voted one of the “Legal Elite” by Virginia Business magazine in multiple categories, and is rated AV® Preeminent™ by Martindale-Hubbell. She has successfully represented numerous clients on matters involving contracts and real estate issues, and can assist with business and employment issues.

The Land Lawyers: You have successfully represented a number of clients in diverse cases. Is there a specific type of case or client you focus on?

Wendy Alexander: I have experience with a broad range of cases and issues. Typical clients include property owners, subcontractors, general contractors, lenders, small-business owners, and title companies. The types of matters I handle include lease reviews and disputes, contract reviews and disputes, construction defect cases, title defect cases, real estate matters (including condemnation landlord/tenant, easements, and adverse possession), and employment matters. But I am not always in court with my clients. Sometimes I handle transactional matters for them, or administrative matters including negotiating the regulatory world of the Department of Professional and Occupational Regulation, the State Corporation Commission, or the Virginia Employment Commission.

TLL: So you technically become your client’s closest advocate and provide counsel regarding complex legal concepts. Understanding that all of your cases are complex and confidential, what was your most complex case?

WA: Each case has its own complexities. Some of the more interesting cases I have worked on involve alleged forgeries of property deeds. Typically, I have defended lenders in these matters who, in the situation of a forgery, risk having the property (allegedly procured by their borrowers through fraud) put in the hands of the plaintiff. The lenders, through no fault of their own, risk losing the security (which was the property) for the loan. In these cases, I have always been able to file counterclaims based on equitable theories in an effort to keep my clients as protected as possible. These cases always involve expert witnesses in the form of handwriting experts, and one such case also involved a medical expert to opine on capacity to contract. It is not uncommon for these complex title issues to settle. And depending on the particulars of the individual case, I have been able to craft solutions that are equally complex, ranging from buy-outs of the loans to confirmation deeds, which reinstate the full value of a lender’s lien against a property.

TLL: You wrote a newsletter article this month about employment manuals. What other type of employment issues do you handle?

WA: We can assist with discrimination claims or other EEOC complaints (employer side), unemployment claims, non-compete and restrictive covenant interpretation and disputes, separation agreements, Fair Labor Standards Act issues, and other employer-based human resources questions.

TLL: How long have you been working for the firm?

WA: This fall marked my 15th year with Walsh Colucci.

TLL: If you have spare time, what do you like to do with it?

WA: I try to stay active and enjoy the outdoors. I am an avid sports fan both at the college level (the Virginia Cavaliers, my alma mater) and at my childrens’ myriad events.

TLL: Do you have a hero or heroine?

WA: My mother.

TLL: Favorite meal?

WA: I love to eat. My most recent notable meal was an herb-crusted salmon while visiting Bar Harbor, Maine.

TLL: If you could travel anywhere in the world, or universe, where would it be?

WA: My favorite place to visit is the Big Island of Hawaii.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

WA: It is a place where sharing ideas is encouraged, which allows for case theories and arguments to be well-honed by the time they reach a courtroom.

TLL: Thank you, Wendy!