(703) 369-4738

19
Jun
2020

Marijuana, Arrests, Charges, and Convictions: A New Law Creates Changes For Employers.

**Part Two of a Four-Part Series: Click Here for Full Series**

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.  Vanderpool, Frostick & Nishanian, P.C.

In Part 2, we will address a new law that prohibits employers from inquiring into possession of marijuana for employee applicants, and a law that restricts state agencies and localities when inquiring about arrests, charges, or convictions for employee applicants.

Due to the enactment of these new laws in Virginia, businesses will need to understand what the laws require, update their employment applications, and educate and train their supervisors/managers accordingly.

State Agencies and Localities Prohibited from Inquiring about Arrests, Charges, or Convictions from Employment Applicants.

A new law prohibits Virginia state agencies and localities from inquiring whether a prospective employee has ever been arrested, charged, or convicted of a crime until the staff interview stage of the application process. During or after the staff interview stage of the employment application process, a Virginia state agency and locality may inquire whether an employee has been arrested, charged, or convicted of a crime – but not before.     

However, the new law does not require a state agency or locality to wait until the staff interview stage under the following circumstances: positions designated as sensitive; law enforcement agencies; state agencies expressly permitted to inquire into an individual’s criminal arrests or charges; positions for employment by the local school board; positions responsible for the health, safety, and welfare of citizens or critical infrastructure; and positions with access to federal tax information in approved IRS agreements.

In response to the new law, Virginia state agencies and localities should remove from employment applications questions that ask about a prospective employee’s arrests, charges, or convictions. In addition, state agencies and localities should train employees not to ask applicants about arrests, charges, or convictions until the staff interview stage of the application process.

Prohibition Against Inquiring Into Possession of Marijuana for Employee Applicants

Private Employers

A new law provides that Virginia employers are prohibited from requiring employment applicants to disclose information concerning any arrest, criminal charge, or conviction for unlawful marijuana possession in any application, interview, or otherwise.

Public Employers

This new law also prohibits state and local government agencies, officials, and employees from requesting from applicants for governmental service, information regarding marijuana possession arrests, charges, or convictions.  Unlike the law discussed above – which prohibits state agencies and localities from inquiring into general arrests, charge, or convictions until the staff interview stage – state and local government agencies cannot inquire about marijuana possession arrests, charges, or convictions at any stage of the application process.

However, the new law does permit state agencies to use information from an arrest, charge or conviction that is open for public inspection, for purposes such as:

  1. Screening for full-time or part-time employment with the State Police or a police department or sheriff’s office that is a part of or administered by the Commonwealth or any political subdivision;
  2. Screening persons who apply to be a volunteer with or an employee of an emergency medical services agency;
  3. Screening for full-time or part-time employment with the Department of Forensic Science; or
  4. By the Department of Motor Vehicles for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration.

Penalties for Public and Private Employers

Employers should take this new law seriously since a violation can result in criminal prosecution for individuals who violate the law. A person who willfully violates this law is guilty of a Class 1 misdemeanor for each violation.

If an employer has a form inquiring whether an individual has been charged or convicted of a crime, they should include a carve out stating that this inquiry does not apply to the arrest, criminal charge, or conviction of a person for unlawful possession of marijuana. Similarly, employers should train employees not to inquire about any arrests, charges, or convictions for marijuana possession. Employers should also be aware of EEOC guidance regarding the use of employee arrests, charges, or convictions in employment decisions.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

17
Jun
2020

Sexual orientation, gender identity, and veteran status were added to the list of protected classifications in Virginia

**Part One of a Four-Part Series: Click Here for Full Series**

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq. Vanderpool, Frostick & Nishanian, P.C.

While businesses have been focused on dealing with the Covid-19 pandemic, working remotely, educating kids, and figuring out how to return to work safely, new laws will go into effect starting on July 1, 2020 that you need to know about. These laws will significantly impact Virginia employers.

Amendments to the Virginia Human Rights Act

The General Assembly passed the Virginia Values Act and other amendments that significantly amended the Virginia Human Rights Act (“VHRA” or “Act”). Generally, it

  1. added additional protected classifications;
  2. further clarified and expanded types of prohibited discrimination
  3. included the requirement that employers provide reasonable accommodations for pregnant workers
  4. expanded the definition of “employer” thus expanding the scope of employers subject to the newly revised Act; and
  5. provided new remedies. Now, almost all Virginia employers (except those with five or less employees) will be subject to the Act, which significantly increases the number of businesses covered by the Act as well as their liability associated with employment discrimination claims.

Additional Protected Classifications and Clarification/Expansion of Types of Discrimination

Sexual orientation, gender identity, and veteran status were added to the list of protected classifications under VHRA. Discrimination based on race was defined to now specifically include discrimination based on traits historically associated with race, including hair texture, hair types, and protective hairstyles such as braids, locks, and twists.

Amendments Related to Pregnancy and Childbirth

While VHRA already prohibits discrimination on the basis of pregnancy and childbirth or related medical conditions, it now specifically states childbirth and related medical conditions includes “lactation.”  Employers are also required to provide reasonable accommodations related to pregnancy, childbirth or other medical conditions including lactation, unless the accommodation would impose an undue hardship on the employer. Employers are also prohibited from taking adverse actions against an employee for requesting such accommodations.

The Act requires employers to provide notice to their employees of these rights by posting information in a conspicuous location and also including it in their employee handbooks. In addition, employers must also provide such information to new employees upon commencement of their employment, and within 10 days of an employee providing notice to the employer that she is pregnant.

Summary of Protected Classifications Under Amended VHRA

Accordingly, pursuant to VHRA as of July 1, 2020, it will be unlawful for an employer to discriminate against an employee because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, disability, or status as a veteran.

Expansion to Cover Almost All Employers

Prior to July 1, 2020, VHRA only applied to a very small group of employers that were too small to be covered by federal anti-discrimination laws. Essentially, it only applied to employers with between six and fourteen employees and the law made only it unlawful to terminate employment based on unlawful discrimination.

The new amendments significantly overhaul the VHRA. The amended VHRA defines “employer” to include every business with fifteen or more employees. Therefore, for employers with fifteen or more employees, they are now subject to the VHRA for discrimination in the employment relationship for such things as compensation, promotions, and job assignments.  In addition, the Act will apply to all employers with more than five employees for claims that an employee was unlawfully terminated due to prohibited discrimination (other than based on age).  For age-related termination claims, the Act covers employers with between six and nineteen employees.

Expansion of Remedies

Under the existing VHRA, the remedies for unlawful termination based on prohibited discrimination are limited to twelve months of back pay and recovery of attorneys’ fees of no more than 25% of the backpay award.  The overhauled VHRA no longer has any cap or limit on the type or amount of damages which can be recovered.  Unlike federal anti-discrimination statutes (which caps recoverable compensatory and punitive damages based on an employer’s size), there is no limit on the amount of compensatory damages that an employee who prevails on their claims will be able to recover – regardless of employer’s size. Punitive damages are already capped in Virginia at $350,000.  The new Act also provides that a successful claimant may recover attorneys’ fees.

Public Employers

The new laws also prohibits public employers such as the state and localities, from discriminating against an individual on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, sexual orientation, gender identity, or status as a veteran.

Employers May Not Prohibit Employees from Sharing Wage Information

A new law in Virginia provides that employers may not discharge or take a retaliatory action against employees because they:

  1. Discussed or disclosed information to another employee about their own wages and compensation, or wages of others.
  2. Filed a complaint alleging a violation of this Code with Virginia Department of Labor and Industry.

If employers have a policy prohibiting employees from discussing their wages with others, they should remove or revise this policy so that it complies with updated Virginia law.

However, employers may still prohibit employees from disclosing wage information if that employee has access to employee or applicant data as part of their essential job functions. Therefore, employers can still have a policy prohibiting HR or payroll employees from discussing employee information discovered through their job. However, employers cannot prevent these employees from disclosing this information if it is provided in response to a formal complaint, investigation, or consistent with a legal duty to furnish information.

Employers who violate this statute will be subject to a civil penalty of $100 per violation.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

7
May
2020

Failure to Protect Employees From Covid-19 can Result in Fines or Worse

With a steady increase of reported COVID-19 infections, employers face increased risks regarding their employees’ safety. Risks include potential fines and other penalties from the Occupational Safety and Health Administration (OSHA) for violation of the OSHA Act.

Employers Have an Obligation

Under the OSHA Act, employers have an obligation to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” https://www.osha.gov/laws-regs/oshact/section5-duties

Preparing WorkPlaces

Since many employees working outside of their homes often physically interact with other people, employers should take steps to limit their employees’ risk of infection. To help employers reduce the risk of worker exposure to COVID-19, OSHA recently issued Guidance on Preparing Workplaces for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf

In addition to this OSHA guidance, the Centers for Disease Control and Prevention (CDC) issued Resources for Businesses and Employers, which also provides guidance on how employers can prepare for and respond to COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

Employers should review both OSHA and CDC guidance and follow recommended procedures, especially if their employees are in jobs classified as high or very high exposure risk. OSHA and CDC guidance discusses different steps employers may take to protect employees, including providing Personal Protective Equipment (PPE). The type of PPE that an employer will need to provide can vary based on the employee’s risk classification or occupation. For example, OSHA does not recommend PPE for workers in the lower exposure group, but workers in a very high risk group would likely need to wear gloves, a gown, face shield, and in some cases a respirator.

OSHA has Received Thousands of Complaints

If an employee feels that their working environment threatens physical harm or an imminent danger, the employee can make a complaint to OSHA. https://www.osha.gov/as/opa/worker/handling.html. Since the onset of the pandemic, OSHA has received thousands of complaints against employers related to COVID-19, and OSHA recently provided data showing an increase in the number of OSHA complaints and inspections. https://www.osha.gov/enforcement/covid-19-data#complaints_selected. If an employer does not furnish a place of employment free from recognized hazards, that employer can be subject to civil penalties for each violation (and/or imprisonment of up to six months if willful). https://www.osha.gov/laws-regs/oshact/section_17.

Employers Face Risks Beyond OSHA Violations

Employers face risks from COVID-19 beyond OSHA violations, as employees can bring lawsuits against their employers for claims including negligence and wrongful death. Since the start of the pandemic, employees have already begun filing claims against employers stemming from COVID-19, including lawsuits against retailer Walmart.

Employers should take actions recommended under OSHA and CDC guidance to minimize employee risks related to COVID-19. An employer’s failure to protect its employees can result in potential fines, lawsuits, or even imprisonment.


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.

VF&N’s Employment Law Team

20
Apr
2020

Does the FFCRA (Families First Coronavirus Response Act) apply to my business?

The FFCRA was enacted 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. To determine whether the FFCRA is applicable to your business, you must count the number of employees that are working for you.

How do you calculate your number of employees under FFCRA?

  • Calculate the number of employees on the day employee’s leave would start
  • Include
    • employees on leave
    • full-time and part-time employees within the U.S.
    • temporary employees & day laborers who are jointly employed by you and another employer (regardless of where payroll is maintained)
  • Calculation does not include independent contractors

By: Kris Spitler, Esq.

Do you have more Coronavirus related questions? Visit our Covid-19 business resource page HERE or call us at (703) 369- 4738. We are open and ready to assist new and existing clients.

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.

3
Jan
2020

When is the last time you updated your employee handbook?

Join us for a free upcoming seminar: Employee Handbooks. Will Yours Make the Grade?

February 13th, 2020

  • Time: 8:30 am –10:00 am
  • Location: Paul Davis training room- 44601 Guilford Dr, Ashburn, VA 20147

Join Vanderpool, Frostick & Nishanian, P.C.’s employment law attorneys Kris Spitler and Brendan Cassidy for a presentation on how to create an effective and compliant employee handbook.

Whether you are creating a brand new handbook or revising your current handbook, spending the time to properly craft the policies in your employee handbook can help ensure that they fit your Company’s business needs, do not expose it to liability, and provide employers with defenses against common charges brought by employees.

To reserve your space, please complete the form below:

Employee Handbook Seminar
17
Dec
2019

Six Attorneys Named Legal Elite in 2019

Vanderpool, Frostick & Nishanian, P.C. is proud to announce that six of its attorneys have been recognized by the Virginia Business Magazine as being among Virginia’s “Legal Elite” within their various practice categories. All of the attorneys named have been nominated as Legal Elite in the past and we’re extremely honored to celebrate their continued success and exceptional work!

Litigation & Construction– Randolph Frostick

Land Use & Real Estate– Michael Vanderpool

Intellectual Property– Christopher Collins

Employment Law– Kristina Keech Spitler

Young Lawyer (under 40) – Brett Callahan

Business Law– V. Rick Nishanian

17
Oct
2019

Avoiding Litigation: Free Seminar

Wednesday, Oct. 23rd
6:30 p.m. – 8:30 p.m.
Centerfuse in Manassas

Join VF&N’s litigation attorney Brett Callahan as she presents at the Oct. YPNOVA Success Series Seminar: Avoiding Litigation.

Ms. Callahan will cover common mistakes businesses make that can lead to or increase the risk of litigation related to contracts, real estate, employment, intellectual property, business formation, and compliance.

Open to the public, YPNOVA membership not required.

25
Sep
2019

Four VF&N attorneys rated AV Preeminent®

Congratulations to our team of AV Preeminent® attorneys Randolph Frostick, Olaun Simmons, Michael Vanderpool & Kristina Keech Spitler! AV Preeminent® is Martindale-Hubbell’s highest professional achievement, a designation trusted worldwide by buyers and referrers of legal services.

The process of Martindale-Hubbell® Peer Review Ratings™ has been the gold standard in the rating of attorneys’ legal ability and high ethical standards for more than 100 years. One of the reasons this award is such an honor is that it is only bestowed on a select few, about 10% of all attorneys. Because of this, it is a designation that can be trusted by clients and those who need to refer clients for other legal services.

For more info visit: https://www.martindale.com/ratings