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6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C. 

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

29
Sep
2021

Part 4: The Production and Sales of Cannabis in Virginia

 

The Production and Sales of Cannabis in Virginia

This article provides a high-level overview of the new legal landscape in Virginia related to the production and sale of cannabis and the opportunities out there for entrepreneurs.

For perspective, the Virginia General Assembly has only approved four (4) companies to legally process pharmaceutical cannabis for medical use, with one additional permit authorized, but unissued. The cultivation of hemp is currently allowed under a regulated process. And as of July 1, 2021, personal consumption and home cultivation of marijuana have been decriminalized to a large extent on the state level here in Virginia. Notably, the use, sale, and possession of cannabis over 0.3% THC in the United States remain illegal under federal law, despite laws in many states permitting it under various circumstances.

Cannabis PlantWhile all of this represents progress, in the overall push for legalization, we are still years away from state legalization of the production and sale of retail cannabis. For those interested in participating in this budding industry, keep in mind that you will need a license issued by the Cannabis Control Authority, which many anticipate will be much more challenging to obtain than an alcohol license.

The specific requirements for those license applications will not be disclosed publicly until July 1, 2022, with the first applications expected to be accepted July 2023 and retail sales expected to finally become legal in 2024. So while two years may seem like a long way away, if you are interested in being competitive in the license application process, you need to start positioning yourself now.

The state is likely to issue less than 1,000 licenses, which will be split between certain levels of the cannabis industry. It is anticipated that there will be 450 licenses available for cultivators, 60 for product manufacturers, 25 for wholesalers, and 400 for retailers. The application process is expected to favor applicants who demonstrate social equity, public health, and public safety priorities.

While this certainly provides some reason for optimism for those hoping to play a part in the industry, it’s important to remember that the regulatory framework and path towards legalization does not become effective until the future General Assembly and Governor approve the legislation in 2022. That said, if you are serious about getting a permit and being on the front end of the marijuana industry boom in Virginia, it’s important to surround yourself with professionals that can make your vision a reality. One of the old rules of thumb for aspiring entrepreneurs is to surround yourself with a decent lawyer and a good accountant.

VFN is one of the most highly regarded law firms here in Northern Virginia, with seasoned and well-connected attorneys who can help you establish your position in this state’s cannabis industry. Our services will be invaluable to clients, who will need to

  1. Establish a legal entity and presence here in the Commonwealth to become a qualified applicant;
  2. Obtain financing through investor relationships and/or financial institutions to secure required capital to be considered for licensure;
  3. Purchase the real estate and secure proper zoning and approvals required for your business
  4. Create solid commercial sale/purchase contracts to ensure payment and minimize risk exposure; and
  5. Establish employment procedures to ensure your business runs smoothly.

I have already been advising clients on how to prepare themselves for the permit application process for the past few years, which has been an exciting and engaging experience for me. I am excited to see what the future holds in this new industry and to be working with clients on the front lines. If you need me or want more information, please feel free to give me a call at 703.479.3181, reach out to me by email at TBlaser@VFNLaw.com, or visit my attorney page at https://www.vfnlaw.com/portfolio/tyler-j-blaser/.

24
Sep
2021

Threat to Broadband Expansion

 

Threat to Broadband Expansion

In Grano v. Rappahannock Electric Cooperative, Judge Moon of the Federal District Court made preliminary rulings about a new Virginia law that allows electric utilities to put broadband cables in existing electrical easements.

The facts are these: A new state law in 2020 granted electric utilities like Rappahannock Electric Cooperative the power to install broadband cables in existing electric line easements, regardless of what the easement deed says. The same law limited the kind of compensation that property owners can receive if that happened. Rappahannock proposed to buy the right to install broadband on the property of John and Cynthia Grano, but couldn’t agree on terms with them. Rappahannock never installed any broadband on the Granos’ property but asserted that it could if it wished.

Judge Moon’s opinion found that the Granos’ claims said many of the right things to move forward in Federal court. For example, Judge Moon decided that the Granos had properly alleged they suffered actual harm when the new law took effect in 2020 and that the new law did not provide an adequate remedy for any harm that they suffered. There is little analysis in the opinion about why the new law – which allows property owners to file a claim for trespass – is inadequate, but the opinion points to the fact that the new law limits the amount of money that property owners can get if they win their case. (Lots of other laws limit the amount of money courts can award for different kinds of cases; Virginia has caps on medical malpractice claims and punitive damages, for instance).

Ultimately, Judge Moon ruled that two of the Granos’ three claims had to be dismissed because Rappahannock did not take any action to exercise its rights under the new law. One peculiar feature of Judge Moon’s ruling is that it says that the third claim should have been dismissed as well, but Judge Moon did not dismiss that claim. The third claim was for unconstitutional impairment of contracts, and footnote 8 points out that such a claim cannot be brought under the federal statute that the Granos used as a basis for their suit. Rappahannock asked the court to dismiss the third claim, but for a different reason.

The case continues to move forward. The Virginia Attorney General has filed notice of his intent to intervene as a party in order to defend the law.

Please contact Martin Crim, mcrim@vfnlaw.com or 703-618-3205 should you have any questions or need assistance. 

22
Sep
2021

Part 2: What Constitutes Relief for the use of Cannabis Oil!

 

What constitutes relief for the legal or lawful use of cannabis oil?

The new law statute talks explicitly about what happens when somebody needs to have medical cannabis oil. One thing they must do, is they have to possess an unexpired written certification from a practitioner (which could be a doctor or a nurse practitioner.) Someone who’s usually allowed to write prescriptions. They must be registered with the board of pharmacy, and it’s not just any doctor. Anybody who is writing certifications for cannabis oil must be registered with the board of pharmacy.

In addition, once they have their written certification, the patient must register with the board of pharmacy. What they do now with their written certification is they go to a registered medical cannabis pharmaceutical processor, distributor, or dispensary. In the Commonwealth of Virginia, there are only five that have the authorization, and they’ve been spread out throughout the Commonwealth to have it around all the various parts of the state. Prince William County has one dispensary that has been approved, and that is located here in Manassas. It’s called Beyond Hello.

What if you’re an employer and believe the lawful use of cannabis oil impairs the employee’s work?

The new law talks about: What if the employee who needs the medical cannabis oil brings that oil with them to work; what are the employer’s rights under that circumstance? The law is very clear that employers with employees who are lawfully using cannabis oil still retain the ability to take adverse employment actions. That means you can discipline them, fire them, talk with them about the issues for any work impairment caused by using the cannabis oil.

Suppose the employee comes to work and is not performing their work and believes it’s associated with the use of cannabis oil. In that case, the employer can, in fact, discipline them or take adverse action, up to and including termination, based on the facts and the evidence you have at the time. Employers can also prohibit the possession of cannabis oil during work hours.

Even if the employee has a written certification, the employer can say that we do not want cannabis oil on our work premises, even though you have it lawfully.

What if you are a federal contractor or depend on federal funding? How does that impact you now with the new Virginia law and lawful use of cannabis oil?

Again, Virginia law has addressed this. It specifically says that for those who are federal contractors or subcontractors with employees who are using cannabis oil lawfully, they are not required to commit any act that would cause the employer to be in violation of any federal law or result in the loss of federal contract or federal funding. So, again, you do not have to do anything that would jeopardize your status as a federal contractor or subcontractor.

What if you are an employer in the defense industrial-based sector, which talks about the military department of defense, or you’re dealing with them as a federal contractor or subcontractor?

What can you do regarding this new Virginia law? The statute specifically says that defense industrial-based sector employers or prospective employers (meaning that you’re looking at hiring somebody, but you’re still in that sector) are not required to hire or retain any applicant or employee who tests positive for THC in excess of 50 milligrams for the urine test, 10 milligrams for the hair test. So, you do have some rights to limit your exposure. The reason for this is that you don’t want someone who may be impaired while on the job.

An employer to make sure they still have a safe work environment. If you have concerned somebody who may be under the influence of lawful cannabis oil, you probably should seek counsel to address how to handle this matter lawfully. You’ve got to balance the competing laws.

What can employers do in the application process?

As an aside, I will say that the EEOC says if you are an employer with 15 or more employees, you are covered by the federal law Title VII of the civil rights act of 1964. There are provisions that talk about the protection of employees and make sure that if you’re going to do a background check, it doesn’t violate or create an implicit bias. There is guidance, and if you want to look upon the EEOC, it talks about criminal history checks. There is a perception, and I think supported by evidence, that those who are Hispanic or African American, particularly males, were disproportionately impacted by the laws. Suppose you are doing background checks and don’t have a reasonable basis for saying there’s a reason to exclude someone with that criminal background. In that case, it may result in potential exposure to liability for that.

Where we are right now is the issue of doing background checks related to the new law in Virginia?

It specifically says employers and educational institutions are prohibited from requiring an applicant to disclose information related to any arrest, criminal charge, or conviction for any decriminalized possession of marijuana. So, what this is doing is it is resulting in an employer saying, listen, I’m just not going to even ask for background if there’s any marijuana charges or charges related to marijuana? I think people are wrestling with that right now. What do they want to do as part of their process going forward?

Some employers are saying, listen; I don’t know that I really care whether they used marijuana when they were in college or whether they used marijuana ten years ago. Do they care maybe if they used marijuana last week? Well, maybe some do, maybe some don’t. There are businesses that you know have a philosophy that says I don’t care what you do on your personal time. In Virginia right now, no law addresses that. Some states do have laws that address limitations on employer’s rights to limit people’s personal time. What they do on their personal time, in Virginia, there is no law on it, but what they’re suggesting here is that you can’t require an applicant to disclose that information if it’s an arrest, criminal charge, or conviction for any decriminalized possession of marijuana.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance

31
Aug
2021

Part 1: Medical use of cannabis oil, what the new law says!

Virginia’s new law that prohibits employers from discharging, disciplining, or discriminating against an employee for the employee’s lawful use of cannabis oil.

Virginia recently enacted a new law that makes it unlawful for employers to discharge, discipline or discriminate against an employee for the employee’s lawful use of “cannabis oil.”  In order for the use to be lawful, it must be obtained pursuant to a valid written certification issued by a medical practitioner, who has registered to write such certifications with the Board of Pharmacy, for the treatment or to eliminate the symptoms of a person’s diagnosed conditions or disease. In addition, the patient with the certification must also register with the Board of Pharmacy as well as obtain the cannabis oil from one of the five registered medical cannabis pharmaceutical processor dispensaries in Virginia.  In the event that an employer has an employee that has a medical condition for which they have lawfully obtained cannabis oil pursuant to the above-described process, the employer may not discharge, discipline or discriminate against such employee for the employee’s lawful use of cannabis oil.  It is important to note that the new law does not protect those who are using cannabis products recreationally or who are using cannabis products for medicinal purposes but have not complied with the proper procedures required by the law.

CBD Oil Chemical markersThat leads us to the next question – what is Cannabis oil?

The new law defines cannabis oil as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of a Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.” As the purpose of the Cannabis Oil under this law is to treat medical conditions, the law is very specific as to the content of cannabis products.

Cannabis oil should not be confused with CBD products available without a prescription and represented as having low amounts of THC. You can go to stores now where you may have CBD oils or cannabis products that are the kind that are not controlled and regulated by a medical cannabis pharmaceutical processor dispensary as part of a medicinal remedy. The use of these cannabis products are not what this law is intended to protect. If you have somebody who goes to a local store and buys some CBD product and then ends up in some circumstance where they test positive for marijuana, that’s not protected. It is the use related to medicinal use and only if the proper procedures are followed.

If an employee’s work is impaired by the use of medicinal cannabis, Employers may still take adverse action.

Employer’s still retain the ability to take adverse employment action against an employee with a medical certification if the employee’s work is impaired caused by the use of cannabis oil.  Employers may also prohibit possession of cannabis oil during work hours.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance

31
Mar
2021

Town of Quantico: Chesapeake Bay Preservation

Olaun A. Simmons, as legal counsel for the Town of Quantico, Virginia, recently completed a lengthy and extensive review and revision of the Town of Quantico’s Chesapeake Bay Preservation Ordinance and Comprehensive Plan in order to achieve compliance with Virginia’s Chesapeake Bay Preservation Act.

As a result of Mr. Simmons’s work and diligence, on March 30, 2021 the Virginia Department of Environmental Quality determined that the Town of Quantico’s Chesapeake Bay Preservation Act program is in compliance with the Chesapeake  Bay Preservation Act pursuant to §§ 62.1-44.15:69 and 62.1-44.15:71 and the Chesapeake Bay Preservation Area Designation and Management Regulations 9VAC25-830-260.

30
Mar
2020

Virtual Meetings and Consultations Now Available

In efforts to continue to serve our clients in a safe and CDC compliant manner, we are now offering virtual meetings and consultations.

If you are interested in scheduling a virtual consultation or meeting with your attorney, please call 703-369-4738 and one of our legal assistants will schedule a zoom appointment.

23
Mar
2020

Resources to Help Employers Respond to Workplace Issues From COVID-19 (Corona Virus)

By: Kristina Keech Spitler, Esquire

FOR THE MOST UP TO DATE INFO, PLEASE VISIT OUR COVID-19 PAGE

DOWNLOAD REPORT FOR PRINT

Given the fast-paced and changing nature of the impacts of the COVID-19 (Corona Virus) pandemic, businesses are working to respond in the best manner possible for the safety of their employees and customers while remaining in compliance with various employment laws and evaluating their ability to keep their businesses viable. On the evening of March 18, 2020, President Trump signed Families First Coronavirus Response Act (“FFCRA”) which amongst other provisions, includes the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act, and the Tax Credits For Paid Sick and Paid Family and Medical Leave that generally apply to all employers with fewer than 500 employees.

Businesses are evaluating how to respond to this pandemic which includes dealing with the following challenges (to name just a few of the many issues and concerns):

  1. Determine how to keep their employees safe and comply with various federal, state and local mandates, laws, and guidance.
  2. Determine how to comply with the Occupational Safety and Health Act.
  3. Evaluate if they can continue business operations by allowing employees to work remotely, and if so, which employees can work remotely. Ensuring that employees have the technology in place to effectively work remotely, and determine what policies and practices need to be put in place or amended.
  4. Determine what leave they should or must offer to their employees and whether they need to amend their existing leave and vacation policies and practices. Determine how to continue to comply with existing Family Medical Leave Act (FMLA) requirements (generally applicable to employers with 50 or more employees) and now comply with the new Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act requirements pursuant to the FFCRA.
  5. Determine how to comply with laws that prohibit discrimination based upon disability.
  6. Determine how to correctly pay employees (exempt and nonexempt) under the Fair Labor Standards Act given all the variables in play.
  7. Evaluate whether they should just close down and conserve resources with the hope of being able to reopen in the future.
  8. Evaluate what unemployment benefits can employees who have been terminated, laid off, or furloughed may be eligible for through the Virginia Employment Commission.

To help businesses with these challenges, I have provided some helpful information, a summary of some applicable employment laws, and identified where you can find additional useful resources.

Please note that this summary is designed to provide general information, is not intended to constitute legal advice, and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, please consult with an attorney.

Employers have a number of issues to consider in this difficult time. If you need legal counsel, please feel free to contact me at 703 369 4738 or kspitler@vfnlaw.com. In addition, please stay safe and healthy.

Employee and Customer Safety

Employers should frequently review the website for the Center for Disease Control (CDC) regarding guidance and regular updates including its Interim Guidance for Businesses and Employers. https://www.cdc.gov/coronavirus/2019-ncov/index.html https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

Employers should also frequently visit the website for the Virginia Department of Health. http://www.vdh.virginia.gov/coronavirus/

Occupational Safety and Health Act (“OSHA”)

“The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” This statement is contained in OSHA’s Guidance on Preparing Workplaces for COVID-19. Employers should review this resource at the website referenced below. https://www.osha.gov/Publications/OSHA3990.pdf

Remote Working/Telecommuting

While working remotely (also called telecommuting or teleworking) is not new and many employers (both small and large) have been allowing employees to do so and/or providing it as a benefit to employees for flexibility and work/life benefit reasons, the COVID-19 pandemic is forcing all employers to consider this as an option for business continuity reasons. If you already allow remote working, you should review and if necessary, amend existing policies – particularly if you previously only allowed remote working for limited periods such as one day per week. If you are new to teleworking or who have previously been reluctant to allow it, there are many resources available on the internet that can help you manage teleworking employees. Below is a site for an article from Harvard Business Review on how to manage newly remote workers. https://hbr.org/2020/03/a-guide-to-managing-your-newly-remote-workers

Employee Leave

Employee leave is not a simple issue and involves various laws (and now including the newly enacted Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act as part of the Families First Coronavirus Response Act). Employers should consult with legal counsel to ensure compliance with leave laws.

Generally, employers will need to comply with their current policies or amend them regarding any paid or unpaid leave to provide employees. Employers should also look at their vacation policies. Employers will need to decide if they are going to allow employees to take advance leave/vacation and/or go into the negative if employees need to take leave related to the Corona virus or other illnesses. Employers may need to amend various policies to address these issues. In addition, please see the FFCRA summary below as the Act requires paid sick leave related to the Corona virus under certain conditions for all employers with fewer than 500 employees.

Employers will also need to comply with existing FMLA laws and regulations. Generally, the FMLA applies to employers with 50 or more employees within a 75-mile radius and would not apply to smaller employers. However, please see the FFCRA summary below as the Act amends the FMLA to deal with the Corona virus and applies to all employers with fewer than 500 employees.

For convenience, I have included the website below for Department of Labor’s “COVID19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers” which was published prior to the enactment of FFCRA. https://www.dol.gov/agencies/whd/fmla/pandemic

Leave Under the Families First Coronavirus Response Act (FFCRA)

The FFCRA was enacted quickly in response to the Corona virus and, in part, requires all private for-profit and not-for-profit employers with fewer than 500 employees along with government employers (“Covered Employers”) to provide certain paid sick leave and paid family and medical leave to employees. It also provides that these employers will get a tax credit as described below. There are a lot of unanswered questions about this new legislation. As of the date of this article, DOL has not published any regulations or guidance on compliance with FFCRA. Stay tuned as guidance is expected. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that they “shall take effect not later than 15 days after the date of the enactment of this Act.” As part of FFCRA, it was signed by President Trump on March 18, 2020 so that it would go into effect under the Act by April 2, 2020 at the latest. Both acts end on December 31, 2020.

FFCRA Emergency Paid Sick Leave Act

Covered Employers shall provide employees for immediate use (regardless of how long they have been employed) with up to 10 days of paid sick leave if the employee is unable to work or telework for the following reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a quarantine or isolation order as described in (1) above, or has been advised as described in (2) above;
  5. The employee is caring for a son or daughter whose school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The amount of hours of paid sick time for full-time employees is up to 10 days (80 hours). Part time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.” Unused paid sick leave may not be carried over from one year to the next.

The amount Covered Employers must pay to an employee who is unable to work or telework for one of the above reasons will be the following:

  • paid at the employee’s regular rate, up to $511 per day ($5,110 in the aggregate), to quarantine or seek a diagnosis or preventive care for COVID-19 (reasons 1, 2 or 3 above); or
  • paid at two-thirds the employee’s regular rate, up to $200 per day ($2,000 in the aggregate), to care for a family member for such purposes or to care for a child whose school has closed, or whose child care provider is unavailable, due to COVID-19, or the employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services (reasons 4, 5 and 6 above).

Covered Employers may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave provided under this Act. The Act does not address how to handle if the employer has already provided sick or other type of leave to employees prior to its enactment.

It shall be unlawful for employers to discharge, discipline, or in any other manner discriminate against any employee who takes leave under this Act and who has filed any complaint related to this Act or has or will testify about any such proceeding. Violations of this Act will be considered violations of the Fair Labor Standards Act and employees may be entitled to unpaid wages, liquidated damages, and attorneys’ fees and costs.

Covered Employers are required to post and keep posted in conspicuous places on their premises a notice regarding the rights under this Act. This notice will be prepared by the Secretary of Labor and available at a later date. Secretary of Labor shall make a publicly available model notice within 7 days of enactment.

Covered Employers of health care providers or emergency responders may elect to exclude such employees from the application of this subsection.

In addition, the Secretary of Labor shall have the authority to issue regulations to: 1) exclude certain health care providers and emergency responders from the definition of employee, including allowing employers of such health care providers and emergency responders to opt out; 2) to exempt small businesses with fewer than 50 employees from the requirements of providing paid sick leave under reason #5 above (the employee is caring for a son or daughter whose school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions) when the imposition of such requirements would jeopardize the viability of the business as a going concern; and 3) as necessary to carry out the purposes of this Act.

FFCRA Emergency Family and Medical Leave Act

This Act amends the existing Family and Medical Leave Act of 1993. The Act provides that Employees who have been employed for at least 30 days with a Covered Employer will be entitled to take up to 12 weeks of job-protected Emergency FMLA leave for a qualifying need related to a public health emergency of COVID-19. The Act defines this to mean that the employee is unable to work or telework in order to care for a child (under the age of 18) if the child’s school or place of care has been closed or the childcare provider is unavailable due to COVID-19. The first two weeks of the Emergency FMLA leave are unpaid under this Act. During this time, Employee sick leave may be under the Emergency Paid Sick Leave described above or the employee may elect, but may not be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave already provided by the employer. Thereafter, the remaining 10 weeks would be paid Emergency FMLA leave. The amount of pay shall be no less that two-thirds (2/3) of the employee’s usual pay, up to $200 per day ($10,000 total). When the need for such leave is foreseeable, employee shall provide the employer with such notice as is practicable.

It is unclear at this time whether or how employer-provided paid leave would run concurrently with this Emergency FMLA leave and how it would interact with the traditional FMLA leave benefits.

As this is job-protected leave, this means that the employer must restore the employee to the same or equivalent position when s/he returns to work from such leave. However, for Covered Employers who employ fewer than 25 employees, the Act provides that this job restoration provision shall not apply if 1) the position does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave; and 2) the employer makes reasonable efforts to restore the employee to an equivalent position during the year following the conclusion of the leave period.

Similar to the Emergency Paid Sick Leave Act, Covered Employers of health care providers or emergency responders may elect to exclude such employees from the application of this subsection. In addition, the Secretary of Labor shall have the authority to issue regulations to 1) exclude certain health care providers and emergency responders from the definition of employee; and 2) to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.

FFCRA Tax Credits for Employers Providing Emergency Paid Sick Leave and Emergency FMLA Leave

Covered Employers who provide Emergency Paid Sick Leave and Emergency FMLA Leave will be eligible for refundable tax credits on their payroll tax payments equal to 100% of the amount paid (up to the maximum amount authorized by each Act) during each quarter.

Americans with Disabilities Act (“ADA”)

For employers who are covered by the Americans with Disabilities Act (15 or more employees), the U.S. Equal Employment Opportunity Commission (“EEOC”) has provided guidance on complying with the ADA and Rehabilitation Act, including requirements for reasonable accommodations and rules about medical examinations and inquiries. On March 19, 2020, the EEOC clarified that while both Acts continue to apply, they do not interfere with or prevent employers from following the guidelines and suggestions by the CDC or state/local public health authorities. See the EEOC’s webpage and the EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act below. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm https://www.eeoc.gov/facts/pandemic_flu.html

Fair Labor Standards Act (“FLSA”)

Employers need to be careful to ensure that they are complying with the FLSA when evaluating how to correctly pay their employees (exempt and nonexempt) given all the variables in play during this pandemic. Employers should consult with legal counsel to ensure they are complying with the FLSA. In addition, please see the guidance that the Department of Labor has provided: “COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers.” https://www.dol.gov/agencies/whd/flsa/pandemic

Closing Your Business, Terminating Employees, and Unemployment Benefits

Evaluating whether a business should close down now and conserve resources with the hope of being able to reopen in the future is a complicated and difficult decision. The decisions regarding whether to terminate, layoff or furlough some or all employees is equally as difficult. Both issues are beyond the scope of this article. In the event that employers do terminate employees and/or significantly reduce their hours, generally the employees may apply for unemployment benefits with the Virginia Employment Commission. Note that beginning March 15, 2020, the one week waiting period and the requirement to conduct a weekly job search has been suspended by the Governor in response to the pandemic. See the Virginia Employment Commission website below. http://www.vec.virginia.gov/

Businesses should also be aware of the Worker Adjustment and Retraining Notification Act (“WARN Act”) which generally requires that employers with 100 or more employees provide certain notices of intention when closing a facility with 50 or more employees and/or laying off 50 or more employees. The Virginia VEC has established a rapid response team to help in this situation. See VEC website above.

30
Dec
2019

7 Reasons Good Attorneys are Worth Their Weight in Wine

According to WVTF, Wine Spectator Magazine named Virginia a top world destination for wine lovers to visit, along with places like France, Germany, Spain, and New Zealand so it’s no wonder wineries are popping up all over Virginia. In Northern Virginia, in particular, wineries and breweries have gained popularity because of their access to interstates and tourism traffic. Agritourism combines 2 of Virginia’s top 3 industries: agriculture (#1) and tourism (#3) providing a boon to rural economies and helping preserve small to mid-size farms.

If you’re considering starting a vineyard, winery, or brewery you probably already know you have to comply with Virginia alcohol laws and regulations. What many aspiring entrepreneurs forget is that it’s also worthwhile to learn about the “non-alcoholic” side of winery and brewery ownership. An experienced business attorney can take the guesswork out of the agritourism business law and protect your winery from common risks that nearly all businesses face.

Read on to learn 7 things lawyers can do to help your agribusiness’s growth and sustainability.

1. Attorneys Can Help You Incorporate & Reduce Personal Risks.

If you want your winery or brewery to be taken seriously, you’ll need to form a business entity.  When handled properly, incorporation can protect your personal assets from business losses and reduce your tax liabilities. Deciding which corporate structure will work best for your business is a balancing act that requires the insight of an experienced attorney. Trying to use legal forms without the advice of an attorney could lead to your winery paying more than its fair share in taxes, or worse, the loss of your business and personal assets for simple legal mistakes.

2. Attorneys Can Help You Obtain Business Loans to Grow Your Winery.

If you have never applied for a business loan, it’s worth noting that business lending is quite different from the personal loan process. Lenders want to protect their investment, so they often require business owners to submit substantial paperwork and sign numerous guarantees before any money is distributed. In addition to many lenders requiring a business plan, incorporation, and other business documentation, they may apply multiple contingencies throughout the life of your loan. Such as a requirement that you maintain your corporate entity, have a life insurance policy, or submit annual financial data.

An agribusiness attorney can help you prepare the right documentation to improve your chances of obtaining a business loan and ensure you’re not signing predatory loan agreements that set you up for failure.

3. Attorneys Can Help You Acquire Land & Construct Facilities.

Land acquisition and usage is always a hot legal topic for Virginia wineries. Zoning issues and private legal restrictions, such as covenants, may limit or prohibit some uses of your property.

Trying to navigate all of the different rules, regulations, and procedures involved with land use regulations is complicated and time-consuming. The time to consult an attorney is before you acquire land.

4. Attorneys Can Help You Draft Contracts that Protect Your Business Interests.

Every business needs contracts. At some point, you will deal with suppliers, vendors, employees, and other professionals. Each relationship that your business relies on will need to be governed by some form of an agreement so that you can take action if the other party doesn’t hold up their end of the bargain.

The world of contract law is highly specialized within every industry. Even the most experienced contract attorneys may not know the nuances of the agritourism industry. Working with an attorney who knows the ins and outs of agritourism will set your business up for success and mitigate risks.

5. Attorneys Can Help You Hire & Retain Good Employees.

If you want your business to grow and succeed, at some point you will need to hire employees. Finding, hiring, training, and retaining good employees is one of the most important (and daunting) aspects of business ownership. Even business owners with past management experience often do not know the best ways to secure trustworthy employees. What’s worse is that employees are one of the biggest sources of business lawsuits in the United States.

Federal and State governments regulate what can be asked during interviews, how employees are paid and taxed, how employees are to be treated, and when employees can be fired. An attorney can help ensure you’re in compliance with all employment laws and regulations. They can also help create employee agreements that protect your business from adverse actions of employees,  like opening a competing business, sharing your trade secrets, or recruiting co-workers for a competitor.

6. Attorneys Can Help Your Protect Your Name, Ideas, Reputation, and Designs.

Your business’s name, ideas, and reputation are its lifeblood. If a competitor steals your ideas or an employee shares your proprietary information, your business could lose its competitive advantage. This is why intangible assets, like intellectual property (IP), are some of the most valuable components of a newly formed business.

You will want to ensure your unique ideas maintain their value by taking advantage of intellectual property laws that protect trademarks, copyrights, and patents. Even your marketing campaigns can be protected property. A seasoned attorney can help you maximize the value of your business by protecting your ideas. As well as help you avoid fines and lawsuits by ensuring you are not infringing on other businesses ’ IP rights.

7. Attorneys Can Help You Avoid Lawsuits.

Many business owners believe they don’t need lawyers until a problem arises. You may have caught yourself thinking, “I’ll cross that bridge when I come to it.” Unfortunately, this is one of the most expensive mistakes business owners make. All businesses face the risk of lawsuits and agri-business is no exception. If you’re selling alcohol on your property, you face even greater risks.

The good news is, experienced business attorneys can help you protect your business from litigation and limit your liabilities, proactively. They can help ensure you have the right protections in place, legally, financially, and contractually to protect your business from lawsuits and regulatory penalties.


Our experienced team of attorneys at VF&N are able to assist you with all aspects of your agritourism business, from startup to growth and beyond. If you’re interested in starting a winery or brewery in Virginia, or would like to protect your existing agribusiness, contact us for personalized advice designed to meet your unique goals.

By: Martin Crim, VF&N Attorney

2
May
2019

Land use and zoning explained: Repurposing an established building through a special use permit

The commercial real estate and property sector in Northern Virginia and Prince William County has experienced fluctuations in recent years which resulted in vacant buildings. For the owners of these properties, they’re left with a tough decision – let the property stay vacant or repurpose the property.

Repurposing property is using a building differently than the original intent. As a property owner, you are looking for cost-effective ways to keep your investment profitable.  For example, If you turn an old factory into loft apartments, or a barn into an event center, the building sees new life, you continue to make money, and all without building on existing green space. But it isn’t always that easy to change land use of an existing property.

Land use considerations

Land use laws regulate how businesses can operate on certain lands. The most common form of land use regulation is zoning. Cities use this legal process all across the country to help regulate their local development. Zoning laws prevent you from coming home to your well-established housing neighborhood and finding a big box store has set up shop next door.

While it’s not likely for a big box store to pop up next to houses, it is possible as in our earlier example, for a factory to become loft apartments. The zoning for that land must change to account for residents living on the property instead of people coming to work. Without making this change, it puts both the business operator and you, the property owner, in legal peril. It’s up to you to make sure the city allows the land use modification.

Special use permit (SUP)

A special use permit allows a local government to take a look at one particular development and to impose conditions needed to mitigate any impacts on the community. It is available only if the zoning ordinance provides for it.

To obtain a special use permit, you must get approval from the governing body in your community. You need to file an application, submit the filing fee, provide documentation supporting your request, and submit to questioning at a public hearing.  See the steps outlined below:

The process to obtain a SUP