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12
May
2022

Prince William County Is Totally Awesome And VFN Is More Gooder Than Other Firms

Written by: Guy Jeffress

In April 2022, the Commercial Real Estate Development Association (aka “NAIOP”), released the results of their national Developer Approvals Index study. The results of the study ranked Prince William County, Virginia in sixth place nationally, with an overall weighted score of 51, and attained a category-leading score of 75 points for “Consistency.” Consistency metrics covered code and ordinance updates, time frames for completed reviews, approval processes, feedback across different organizational levels and functions, including published approvals for project phases, and staff-based results, such as tenure, training, and their ability to handle complex projects. In short, Prince William County, Virginia is open for business.

For the attorneys at Vanderpool, Frostick & Nishanian, P.C., the study reiterated what we already knew, i.e., that Prince William County, Virginia, is a national leader when it comes to the provision of building development services and the approval of innovative projects including world-class data center infrastructure, bio/life science incubators, and higher education. Nor was the result of the study a surprise to some of our county’s most well-known business residents which include Amazon Web Services and the microchip manufacturer Micron.

If you are considering a project in Prince William County, Virginia, or any of the surrounding jurisdictions, the attorneys at Vanderpool, Frostick, & Nishanian, P.C. are able to bring their 80+ years of combined experience and community involvement to mitigate the legal risks and challenges related to your real estate development projects.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

14
Mar
2022

DON’T RISK YOUR BUSINESS BY IGNORING VIOLATION NOTICES.

Written by: Guy Jeffress

In a January 2022 unpublished opinion, the Court of Appeals of Virginia upheld the immediate revocation of a certificate of occupancy for a hospitality venue located in Fairfax County, effectively closing the business. The revocation was based in part on a single notice of violation issued by Fairfax County almost nine years prior in 2013.

In June 2012 the operator of the establishment obtained a non-residential use permit to open a restaurant located in Fairfax County. In March 2013, the Fairfax County Department of Code Enforcement cited the operator for violating the Uniform Statewide Building Code by constructing unpermitted additions. In May 2013, because the violations remained unresolved, the Department issued a notice of violation and two criminal summonses to the operator. The summonses were subsequently resolved by order of nolle prosequi (a dismissal without prejudice) to allow operator time to submit a “minor site plan,” which was necessary for obtaining the required permits. The operator initially attempted to obtain the minor site plan but ultimately abandoned the effort.

Between April 2014 and October 2019, no inspections were made on the property. However, in October 2019, the county received a complaint about a new structure on the property. A county official researched various records pertaining to, and visually examined, the property. The official observed various violations, including a newly constructed enclosure with a deck, bar, new plumbing and electrical fixtures, and gas fired heaters. The official determined that all of the alterations and additions were completed without appropriate permits.

In early November 2019 the official, accompanied by the fire marshal, returned to the property during business hours. They observed over one hundred people on the premises, which had a certificate of occupancy for a maximum of forty-nine. Shortly thereafter, the Building Official issued a revocation notice for appellant’s certificate of occupancy, effectively closing the business. The revocation notice identified various code violations dating back to the original 2013 notice/citation, and listed safety hazards created by the conditions on the property specified the corrective actions required, and contained information concerning appellant’s right to appeal. The operator appealed the revocation to the Virginia Department of Housing and Community Development State Building Code Technical Review Board (“TRB”). The TRB upheld the county’s finding and the operator appealed to the county circuit court which affirmed the TRB ruling.

The operator then appealed to the Court of Appeals of Virginia arguing that the revocation of the certificate of occupancy was improper on a number of grounds including: (i) that there was no evidence of repeated violations since the only notice of violation was issued in 2013; (ii) the TRB was required to issue a corrective work order and a notice of violation before revoking the certificate of occupancy; (iii) and operator should have been given a reasonable time for compliance before the revocation.

The Court of Appeals dispatched these arguments and affirmed the decision of the circuit court finding that: (i) no applicable law required the county official to provide a notice of violation before revoking a certificate of occupancy, and repeated violations were implied by the improvements to the property constructed between 2013 and 2019, all without the required permits; (ii) nothing in the building code required a notice of violation or a corrective work order before revoking the certificate of occupancy; and (iii) enforcement of the building code is a legitimate use of state power necessary to protect the health, safety, and welfare of its citizens.

Ignoring or shrugging off a single zoning or building code violation, even one made years prior, could jeopardize your business. Don’t wait until it’s too late, call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

12
Mar
2022

VF&N is pleased to announce that four of its senior associates have been named as partners!

VF&N is pleased to announce that four of its senior associates, consisting of Brett Callahan, Olaun Simmons, Guy Jeffress, and Bradley Marshall, have been named as partners effective March 1, 2022.“Each of our new partners have demonstrated superior legal ability, work ethic and commitment to our clients and our communities,” said Rick Nishanian, the VF&N Managing Partner. “We are lucky and honored to have such talented lawyers practicing at VF&N.”

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

12
Mar
2022

March Fun Friday Employee events

Every second Friday of the month VFN host a fun event for their employees.

This month’s Fun Friday did not disappoint. Murlarkey Distilled Spirits set up a tasting and a few mixed drinks at our office. Thank you MurLarkey Distilled Spirits for creating a memorable event for our staff.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

13
Jan
2022

Reporting Requirements For “Non-Financed” Real Estate Transactions In The Works

Written by: Guy Jeffress

On Wednesday, December 8, 2021, the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Treasury that works to safeguard the U.S. financial system from illicit use and money laundering, and to promote national security, issued an advance notice of proposed rulemaking (a “ANPRM”) to solicit public comments on proposed changes to the Bank Secrecy Act (“BSA”). The changes would require additional disclosures for persons involved in “non-financed” transactions involving both commercial and residential real estate. The ANPRM can be found at 86 Fed. Reg. 69589 (Dec. 8, 2021).

A “non-financed purchase,” “non-financed transaction,” “all-cash purchase,” and “all-cash transaction” are defined in the ANPRM as any real estate purchase or transaction that is not financed via a loan, mortgage, or other similar instruments, issued by a bank or non-bank residential mortgage lender or originator, and that is made, at least in part, using currency or value that substitutes for currency (including convertible virtual currency (CVC)), or a cashier’s check, a certified check, a traveler’s check, a personal check, a business check, a money order in any form, or a funds transfer.

According to a June 6, 2021, White House Press Release: “For too long, the U.S. real estate market has been susceptible to being manipulated and used as a haven for the laundered proceeds of illicit activity, including corruption. Our real estate market is a relatively stable store of value. It can be opaque, and there are gaps in industry regulation. As a result, criminals and corrupt officials are able to exploit real estate far too often.”

Recently reported cases and studies cited in the ANPRM and the press release indicate that many groups are using cash-only purchases of U.S. real estate to launder money. The end goal of the rulemaking process is to prepare a rule that would impose nationwide record-keeping and reporting requirements on certain persons participating in transactions involving non-financed purchases of real estate similar to those already required in financed transactions.

The ANPRM points out that there are several key factors that make these types of transactions appealing, those factors include, but are not limited to, the following:

First, the lack of transparency in the real estate market contributes to its vulnerability to money laundering activity. Real estate may be held directly or indirectly through nominees, legal entities (such as one or more shell holding companies), or through various investment vehicles. Buyers may use shell companies in many legitimate circumstances, such as when buyers use legal entities to shield themselves and their assets from liability related to the purchase of real property or as a means of protecting their privacy. Illicit actors, however, can take advantage of the opacity of shell companies or other legal entities or arrangements to mask their identity as the true beneficial owners of the property and their involvement in real estate transactions.

Second, the attractiveness of the U.S. real estate market as a stable vehicle for maintaining and increasing investment value also contributes to its vulnerability to money laundering activity. Illicit actors seek to conceal the origins of their illicit funds in a way that grows as an investment, “cleans” as much money as possible with each transaction and allows them to enjoy the fruits of their illicit activity while minimizing potential losses from market instability and fluctuating exchange rates. Consequently, real estate—especially in a relatively stable market with strong private property protections such as in the United States—is an attractive asset to facilitate money laundering. Real estate is highly appealing for this purpose because there are a large number of transactions, and each transaction is high is amount; as of mid-2021 the average residential sale price in the U.S. was about $350,000.

Third, the lack of industry regulation for non-financed transactions exacerbates the money laundering vulnerabilities of the U.S. real estate market. Non-financed purchases of real estate currently are not subject to the same regulatory requirements as those that involve financing underwritten by a financial institution which are subject to BSA requirements. This leaves a substantial portion of the real estate market without the same protections and safeguards as those applicable to banks, casinos, or other financial institutions. Moreover, data on real estate purchases is held in a patchwork of different state and county databases, making investigation and analysis difficult.

Written comments to the ANPRM must be received on or before Feb. 7, 2022.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

17
Dec
2021

City of Manassas Approves Special Use Permit for Building Expansion

Written by: Olaun Simmons

City of Manassas Approves Special Use Permit for Building Expansion

Olaun Simmons of Vanderpool, Frostick & Nishanian, P.C. represented the Prince William Islamic Center in their pursuit of a special use permit to expand their place of worship located on Mathis Avenue. The PWIC, a well-established religious institution in the community for 15 years, has a growing congregation that needs additional space for worship services. The PWIC designed the expansion to include contemporary, high-quality architectural finishes and landscaping facing Mathis Avenue that will help to modernize the look of the Mathis Avenue corridor. On November 3, 2021, the City’s Planning Commission voted unanimously to recommend approval of the special use permit application. On December 13, the City Council voted unanimously to approve PWIC’s special use permit application for the expansion. Olaun was instrumental in helping PWIC successfully navigate the procedural maze often associated with zoning applications.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

9
Dec
2021

Phase I Environmental Site Assessment – updated standard requirements

Written by: Guy Jeffress

Phase I Environmental Site Assessment – updated standard requirements

On November 1, 2021, ASTM International (formerly the American Society for Testing and Materials) approved revisions to the ASTM 1527 standard, more commonly known as a Phase I Environmental Site Assessment Report. Once the new standard is adopted by the Environmental Protection Agency (EPA), purchasers of real estate will need to comply with the updated requirements.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a property owner risks strict liability for environmental contamination caused by prior owners. However, CERCLA provides defenses for a current owner if the current owner satisfies certain requirements, i.e., the All Appropriate Inquiries (AAI) requirement. To qualify for an AAI defense, a prospective owner, prior to the purchase, must make reasonable inquiries to determine if a property has existing contamination, this includes conducting a Phase I environmental site assessment undertaken in accordance with the ASTM 1527 standard.

Potential purchasers of commercial real property should ensure that environmental professionals are conducting Phase I Reports according to the required standards, i.e., ASTM 1527-13 or ASTM 1527-21. Likewise, lenders funding acquisition loans should keep an eye open for the upcoming change. Adoption of the new standard, ASTM 1527-21, by the EPA is expected to occur in December 2021. There should be a “phase-out” or transition period during which both standards may be allowed. Note that as a result of the new standard Phase I reports may become more costly and time-consuming as environmental professionals get up to speed on the new requirements.

Additional information regarding the revised standard can be found on the ASTM website: https://newsroom.astm.org/astm-international-revises-standard-practice-environmental-site-assessments

Contact the attorneys at Vanderpool, Frostick & Nishanian, P.C., if you have any questions regarding the purchase and/or sale of commercial real estate.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

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.

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.