(703) 369-4738

13
Aug
2020

New Associate Joins VF&N

Laura D’Agostino
Associate

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce the addition of our newest associate Laura M. D’Agostino. Her practice includes employment law and litigation.

Laura’s passion for business and employment law stems from her upbringing and involvement in her family’s business. In this role, Laura assumed significant management responsibilities as she interacted with local government officials, ensured compliance with applicable regulatory provisions, and applied creative solutions to resolve personnel management issues. Laura is committed to helping her clients and their teams build and strengthen their legal compliance as well as assisting them in practical aspects of human resource management.

Prior to joining VF&N, Laura worked as a litigation associate for Jackson & Campbell and as a judicial law clerk for the Honorable Tracy C. Hudson in the Circuit Court for the Thirty-First Judicial Circuit of Virginia. Ms. D’Agostino simultaneously obtained her J.D. from Antonin Scalia Law School and her Master of Public Policy from the McCourt School of Public Policy at Georgetown University.

28
Jul
2020

Effective Immediately: New Covid-19 Emergency Temporary Standards For Business and Facility Owners

Part 1 of a Series By Kristina Keech Spitler, Esq.

On July 27th, 2020, the “New Emergency Temporary Standard – Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19” by the Virginia Department of Labor and Industry (“DOLI”) became effective and applies to virtually all employers in Virginia. It is the first of its kind in the nation as part of a state’s response to the national pandemic. 

The new Emergency Temporary Standard (“ETS” or “Standard”) sets forth mandatory actions that private and public employers are required to take to control, prevent, and mitigate the spread of SARS-CoV-2, the virus that causes the coronavirus disease 2019 (“Covid-19”) to and among employees and employers. This standard will generally be effective for six months starting July 27, 2020.  However, it is likely that a permanent standard/regulation will be adopted in the interim after open to further public comments.

Classify Each Job Task/Position

The ETS requires all employers to assess the workplace jobs or positions for hazards and job tasks that can potentially expose employees to Covid-19 and classify each job task/position into one of four categories of exposure risk levels: very high, high, medium, and lower.  While review of specific definitions in the Standard for each risk level is necessary, here are some examples to help give businesses an idea of the types of job tasks that may fall into the different categories:

  • Very High – healthcare employees performing aerosol-generating procedures, healthcare/lab personnel, and morgue employees who are working with known or suspected Covid-19 patients.
  • High – Healthcare delivery and support, first responders, medical transport, and mortuary employees who are exposed within six feet of known or suspected persons with Covid-19.
  • Medium– Employees exposed within six feet of other employees, customers, or other persons known, unknown, or suspected of Covid-19.
  • Lower – Employees not exposed within six feet frequently or close contact with persons known, unknown, or suspected of Covid-19.

Pursuant to the ETS, the employer then has certain actions it should take for the safety and welfare of its employees depending upon which level of risk its employees fall, including creating an infectious disease preparedness and response plan and provide certain training within specified time frames.

Develop Policies for Employees to Report When They are Experiencing Possible Covid-19 Symptoms

The ETS also requires employers to develop and implement policies and procedures for employees to report when they are experiencing possible Covid-19 symptoms or have tested positive, a system for how they report this to their employer, a plan for what to do if an employee tests positive or has symptoms, and under what circumstances can that employee return to work safely.  Employers must inform employees of the methods of self-monitoring for symptoms of Covid-19 if they suspect possible exposure or experiencing signs of an oncoming illness and shall not permit those who are known or suspected of having it to report to or remain at work.  Employers must also talk with subcontractors and companies that provide contract or temporary employees about the importance of known or suspected to be infected persons staying home and that it will not allow such persons to report to or remain at work.

Employers Must Notify its Employees Within 24 Hours of Discovery of Possible Exposure

The ETS also requires that within 24 hours of discovery of possible exposure, employers must notify its employees, other employers whose employees were present at the worksite, the building/facility owner, and the Virginia Department of Health, of possible exposure at the worksite, while keeping the identity of the person confidential.  In the event that three or more employees present at the place of employment test positive during a 14-day period, the employer is also required to notify Virginia DOLI within 24 hours of discovery.

Building/Facility owners, within 24 hours of discovery of possible exposure, are to i) require all employer tenants to notify them of any positive Covid-19 tests for any employee or resident in the building, ii) take necessary steps to sanitize common areas in the building; and iii) notify all employer tenants in the building of one or more cases discovered in the building and identify the floor or work area where the case was located (while keeping the identity of person or persons confidential).

Employers Shall Ensure that Sick Leave Policies are Flexible and Consistent with Public Health Guidance

The ETS also provides that to the extent feasible and permitted by law including but not limited to the Family First Coronavirus Response Act (“FFCRA”), employers shall ensure that sick leave policies are flexible and consistent with public health guidance and that employees are made aware of these policies.  It is not clear exactly what type of flexible sick leave policies are required by this section.  Certainly, employers covered by FFCRA must comply with FFCRA’s leave requirements.  In addition, employers should comply with their current sick leave policies as well as leave under Family Medical Leave Act, if applicable.  

The Americans with Disabilities Act may also apply such that additional leave may be a form of a reasonable accommodation for a person with a disability.  ETS does not specify that employers must provide additional sick leave or more flexible sick leave.  However, further guidance may be provided.  Employers and employees should also be aware the ETS makes clear that nothing in the standard shall prohibit an employer from permitting an employee known or suspected of having Covid-19 from working remotely (teleworking) or other forms of work isolation that would not result in potentially exposing other employees to the virus.   

Additional Resources

Virginia DOLI has some resources regarding ETS available on its website at https://www.doli.virginia.gov/covid-19-outreach-education-and-training/.

Should you need any assistance in understanding, implementing, or complying with the Emergency Temporary Standard, we stand ready to assist you.

Please visit our site Employment Law or call attorney Kristina Spitler at (703) 369-4738.

25
Jun
2020

Virginia Minimum Wage Increase

(Part Three of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

Virginia employers will need to comply with a new Virginia minimum wage increase to $9.50 an hour starting May 1, 2021. Initially the minimum wage increase was planned for January 1, 2021, but Governor Northam delayed the increase as a result of the COVID-19 pandemic.

Virginia will also increase the minimum wage several times over the next few years under the following schedule:

  • January 1, 2022 – $11.00 per hour.
  • January 1, 2023 – $12.00 per hour.
  • January 1, 2025 – $13.50 per hour.
  • January 1, 2026 – $15.00 per hour.

Although the initial start of the minimum wage increase was delayed, the subsequent wage increase dates currently remain the same.

These increases would apply to most employees in Virginia, including home care providers (the new law removed home care providers from the list of employees exempt from minimum wage requirements). 

The new minimum wage increase will not just apply to private employers, but also to the Commonwealth, any of its agencies, institutions, or political subdivisions, and any public body. 


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

25
Jun
2020

Required Written Statement of Hours Worked

(Part Three of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

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.

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

A new law effective January 1, 2020, requires employers to provide employees with a written statement – by a paystub or online accounting – showing the employer’s name and address and the number of hours the employee worked during the pay period. An amendment to this new law, effective March 10, 2020, clarifies that employers must only provide this written statement to employees paid on the basis of:

  • (i) the number of hours worked or
  • (ii) a salary less than the DOL’s minimum salary threshold.

The amendment also clarifies that an employer must provide applicable employees with their rate of pay, gross wages earned during the pay period, the amount and purpose of any deductions therefrom, and sufficient information to enable the employee to determine how the gross and net pay were calculated.

Employers should review pay statements it provides employees to ensure compliance with this enacted law.


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

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

3
Jun
2020

CARES Act Grant Funds Available for Manassas Businesses

The City of Manassas is launching a new small business relief grant program. The City anticipates receiving CARES Act funds from the Federal government which may be used, in part, to provide support for small businesses adversely impacted by the COVID-19 pandemic. The City Council and the Economic Development Authority (EDA) intend to use some of these funds to establish a small business grant program. The grant funds are intended to provide support for small businesses of all types which have seen significant revenue losses due to the COVID-19 Pandemic.

The grant application and guidelines can be found on the City’s economic development website at www.ChooseManasssas.org. Or you can read more about this program in the EDA’s June 1st press release HERE.

VF&N is legal counsel to the Manassas City Economic Development Authority (EDA) and commends the EDA’s efforts for providing resources and support throughout the crisis.

1
Apr
2020

VF&N Welcomes New Attorney

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce Jonathan S. Gelber, Esq., formerly of Gelber & Associates, PLLC, has joined our firm.

Mr. Gelber comes to Vanderpool, Frostick, & Nishanian, P.C. as Of Counsel with over 35 years of experience and practice in collections and in civil litigation within the Commonwealth of Virginia. Mr. Gelber will focus his practice in the areas of litigation, collections, commercial law, civil defense matters, arbitration, and Guardian ad litem matters.

Many have considered Mr. Gelber a source and resource of practical advice and knowledge of the law in these areas. As an experienced attorney in the Northern Virginia area, Mr. Gelber has taught Continuing Legal Education courses for lawyers, lectured at the annual meetings of the Virginia Creditors Bar Association and other organizations, is a Guardian ad Litem for Incapacitated Adults in both Arlington and Fairfax counties, and has been a member of the Arlington County Judicial Bar Selection Committee in the past. Mr. Gelber has also been a member of the Virginia State Bar Fourth District Subcommittee, Section 1, which meets to hear cases regarding attorneys charged with various acts by the Virginia State Bar.  

The firm of Vanderpool, Frostick, & Nishanian, P.C. is honored to have Mr. Gelber in-house and available to its clients.  Mr. Gelber is excited about the prospect of practice with Vanderpool, Frostick & Nishanian, P.C., and anticipates the ability to serve an even broader range of clients.

About Vanderpool, Frostick & Nishanian, P.C.

Vanderpool, Frostick & Nishanian, P.C. is a law firm located in Manassas, VA. Established in 1986, we have served clients for over 30 years in business law, commercial real estate, litigation, lending, IP, employment law, land use and zoning, municipal law and criminal defense.

To learn more about Vanderpool, Frostick & Nishanian, P.C., visit our about us page.

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.