Virginia 2022: Pandemic Year Three – Settling into the New Normal

March 8, 2022

Although mandatory vaccinations are in the rear-view mirror for non-Medicare settings, concerns with Covid issues continue to impact the workplace both legally and practically as we enter the third year of the pandemic this March. As businesses return to more normal operations, one thing remains certain – the employment law landscape in Virginia is drastically different than it was when the pandemic began. 

This Legal Update highlights several important legal issues that every Virginia business needs to consider as we all get used to the new normal. 

KEY UPDATES:

Covid-19 Rules in Virginia:

Where we are now:

  • Federal vaccine mandates status.
    • The vaccine mandates for employers with more than 100 employees and federal contractors will not take effect.
    • The vaccine mandate for certain medical facilities that treat Medicare / Medicaid patients has gone into effect.
  • Virginia’s workplace Covid-19 Permanent Standard and mask mandate are likely going away.
    • On February 16, 2022, the Virginia Safety and Health Board recommended that Governor Youngkin revoke the Virginia Occupational Safety and Health (“VOSH”) Covid-19 Permanent Standard for workplaces— including the employee mask mandate (the “Standard”).
    • It seems likely that Governor Youngkin will revoke the Standard on or about March 19, 2022. Until the Standard is officially revoked, the rules are technically still in effect.  It is not known whether VOSH will implement new Covid-19 guidance that employers must consider.
  • Masks are no longer required for most employees.
    • The Virginia Department of Labor and Industry (“VDOLI”) issued an updated FAQ in its Covid guidance on March 2, 2022 stating that employees are not required to mask (other than certain medical jobs) in areas with moderate or low community spread rates as defined by the CDC. Virginia employers may follow the CDC’s community transmission map for this determination rather than the VDOLI statistics.

The CDC changed how it measures community spread rates.

  • The CDC changed how it calculates community transmission levels, resulting in much lower rates across the nation. The revised measures evaluate new Covid-related hospital admissions over the previous week, the percentage of hospital beds occupied by Covid patients, as well as new Covid cases per 100,000 people over the previous week. 
  • As of the date of this alert, nearly all localities in Virginia are moderate or low. As a best practice, companies should weekly check the transmission levels here for the locations where they have employees to determine workplace safety.

How to prepare for the future:

  • Employers still have a duty to maintain a safe / hazard-free workplace.
    • The risk of contracting Covid-19 at work is still a hazard that employers need to consider. Employers should update their infectious disease policies to provide employees protection from Covid transmission and provide the employer with flexibility for addressing outbreaks.
  • Covid-19 is still considered a “pandemic.”
    • Therefore, the EEOC special pandemic guidance remains in effect:
    • Under this guidance, employers are still permitted to:
      • Require symptomatic employees stay home.
      • Require a physician’s note for those employees prior to returning.
      • Ask employees who physically work around others if they have been diagnosed with Covid-19 or are experiencing symptoms.
      • Require employees to take a Covid-19 self-test while at work under the ADA’s “threat to others” analysis.
    • In the event of a future workplace outbreak, failing to take reasonable steps to protect employees from Covid-19 transmission in the workplace may be considered negligence, or form the basis for a workers’ compensation claim.
  • Some employees remain apprehensive about in-person work.
    • Employers still need to engage in the interactive process for employees who request accommodations related to Covid-19.
  • Future variants are unknown. Employers must remain prepared.
    • Employers should remain prepared with Covid self-tests, appropriate masks (and where required, PPE), and policies in the event of an outbreak or if a new (more dangerous) variant emerges.
    • VOSH may implement a new Covid-19 Standard.

Cannabis in the workplace:

Where we are now:

  • What is legal in Virginia?
    • Virginians over the age of 21 are permitted to:
      • possess up to 1 oz. of marijuana.
      • cultivate up to 4 cannabis plants.
      • “Adult sharing” of up to 1 oz. marijuana between persons over the age of 21. (Cannot be shared in return for something else – i.e., bartering with marijuana not allowed).
      • Purchase marijuana/cannabis oil products from dispensaries with a valid medicinal cannabis certificate.
    • Currently, 10 dispensaries sell marijuana (botanical cannabis) and cannabis oil products (tinctures, vape oil, and edibles) to people with a valid medicinal cannabis certificate.
    • There will be no expansion of retail sales until 2023 at the earliest. Therefore, to legally possess cannabis, Virginians have the option to cultivate their own plants, receive shared marijuana from another person, or purchase cannabis at a dispensary under a valid medical certification.
  • Medicinal Cannabis in the workplace.
    • In Virginia, employers must accommodate an employee’s use of cannabis with a valid medical certificate, with the following exceptions:
      • Employees cannot be impaired at work.
      • Employees cannot possess cannabis at work.
      • Employers are not required to accommodate cannabis use if it causes the employer to violate a federal law or lose a federal contract.

How to Prepare for the Future:

  • Reassess company drug testing policies.
    • Are employers allowed to drug test for THC?
      • However, no employment action may be taken until the employer confirms the employee does not have a valid medicinal cannabis certificate.
      • Even if the employee does not have a valid medicinal cannabis certificate, there are now risks in terminating an employee for testing positive for THC. After all, recreational cannabis use is a legal activity in Virginia.  Terminating an employee for lawful activity outside of work may form the basis for a common law wrongful termination claim — although this has not yet been tested in court.
      • In this new environment, employers should consult with counsel prior to taking an adverse employment action based on a positive urinalysis test for THC, and ultimately, reassess whether testing for THC still makes sense.
    • Implement processes to determine if employees are impaired at work.
      • Proving impairment due to THC is much more difficult than with alcohol. Employers should consider designating employees to take impairment training courses. 
      • Employers should do their best to create a written record of observations and data that support intoxication, including job performance issues that occurred the same day.
      • Also, employers may want to consider saliva tests, which can verify the presence of THC ingested within the past 24 hours (as opposed to many days or even weeks with traditional urine or blood tests).

 Overtime Pay Update:

The Virginia Overtime Wages Act (VOWA) is a 2021 state law that mandates covered employers pay non-exempt employees overtime premiums for hours worked beyond 40 in a workweek.  Aside from a few limited exceptions, VOWA applies to every employer in Virginia.  The 2021 version created much confusion because it changed how to calculate overtime for Virginia employees and eliminated many standard overtime exemptions acceptable under federal law.  The language of the statute itself is imprecise and contradictory and led to much uncertainty.  The General Assembly amended VOWA in August 2021 to add back two standard exemptions; auto mechanics were added back as exempt; and state and local governments could still pay compensatory time.  

The remaining contradictions and concerns were not unaddressed.  A bill reversing the effect of the 2021 legislation just passed both the House and the Senate and awaits enrollment and signing by Governor Youngkin.  The amended legislation retains the state remedy for failure to pay overtime but keeps in place the federal overtime scheme with the exception of some changes for air carriers. It also establishes a work group to review overtime issues by November 1, 2022.

IMPORTANT REMINDERS

$11.00 Minimum Wage on January 1, 2022:

The Virginia Minimum Wage Act (VMWA) automatically increased the minimum wage in Virginia to $11.00 per hour effective January 1, 2022.  This increases from the 2021 state minimum wage of $9.50. The state minimum wage rate will continue to rise each January through January 2026. Va. Code §40.1-28.10.

Disability and Pregnancy Disability and Notice Requirements:

The new Virginia Human Rights Act (VHRA) includes very specific notice requirements regarding the rights of employees with a disabilities and pregnant employees with pregnancy-related disabilities.  The VHRA is codified at Va. Code § 2.2-3900 to 2.2-3909.

Disability Notice Requirements (quadruple notice):

Virginia employers with more than five employees (i.e., six or more) are subject to the disability provisions of the VHRA including notice requirements.  For covered employers, the required “Disability Notice” is available here.

  • Post this notice.
  • Place this notice in company Handbook.
  • Make sure employees receive a copy of the notice upon employment.
  • Provide notice of accommodation rights within 10 days of the employee providing notice that such employee has a disability.

Pregnancy Notice Requirements (quadruple notice):

Virginia employers with five or more employees are subject to the pregnancy provisions of the VHRA including notice requirements.  For covered employers, the required “Pregnancy Notice” is available here.

  • Post this notice.
  • Place notice in company Handbook.
  • Make sure employees receive a copy of the notice upon employment.
  • Provide notice of accommodation rights within 10 days of the employee requesting a pregnancy accommodation.

Updating Discrimination and Dress Code/Grooming Policies to Comply with the C.R.O.W.N. Act

In 2020, the Virginia Legislature adopted what is commonly known as the “Crown Act” (which stands for Creating a Respectful and Open World for Natural Hair.)  The Virginia provision is found here and provides the following: 

The terms “because of race” or “on the basis of race” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.

The Crown Act initiative began in 2019 in collaboration with then State Senator Holly J. Mitchell of California to provide protection against discrimination based on race-based hairstyles by extending statutory protection to hair texture and protective styles such as braids, locks, twists, and knots in the workplace and schools.  The following website explains more about the Crown Act:  https://www.thecrownact.com/

With this provision in place in Virginia, employers must be sure not only that their non-discrimination policies are updated to reflect this new statutory language, but also that their “grooming” policies regarding “neatness” do not conflict with the right of employees to wear protected hairstyles.  Managers should be trained on how Crown Act protections coordinate with the company’s dress code/grooming policies.   

TRENDING LEGAL ISSUES:

Remote Workers:

Many businesses have allowed workers who started the pandemic working remotely to remain remote, and many businesses have increased hiring remote work teams.

Out-of-state Remote Workers:

If you have remote workers in other states, remember:  

  • Different states have different wage and hour laws and HR regulations.  Many states have more employee friendly provisions than the federal requirements.  For example, five states (California, Colorado, Maine, New York, Washington) increased the minimum salary level for exempt positions to an amount above the federal $684 per week effective January 1, 2022. 

Tax Treatment of Remote Workers:

  • There are two types of remote workers for tax purposes, and it is critical that the company discern between the two: 
    • Remote workers whose “office” is their home location.  That is, their dedicated office space is physically located in their personal home.  IRS considers the employee’s home under this scenario to be their tax home.  If the employer pays travel expenses for the employee to come to the employer’s office on a periodic basis, that reimbursement is not income to the employee, and the business may generally deduct it as a business travel expense.  An employee’s home will likely be the employee’s tax home if the employee is not expected to work in the employer’s office on a regular basis (i.e., the employee is expected to work remotely) and is not provided an office or cubicle there.
    • Remote workers whose office remains at the business site, but for convenience, the employer allows the worker to work from a remote location (or locations).  In this instance, the employee’s tax home is the business’ official office site.  If the employer pays for this employee to travel to the main office, then the payment is income to the employee as a personal commuting expense, subject to payroll taxes and it must be reported as such by the employer.  In addition, these commuting expenses are not deductible by the employer due to section 274(l) of the Internal Revenue Code (as revised by the Tax Cuts and Jobs Act), therefore, it is essentially treated as a bottom-line cost to the employer with no corresponding tax deduction.

Maternity Leave & Parental Leave:

As the labor market tightens, many Virginia employers are offering additional benefits as incentives, including paid maternity and/or parental bonding leave.  In addition to ensuring that these policies fit with the employers’ other leave policies (such as Family Medical Leave Act policies or Paid Time Off) and state leave laws, there are a few important legal considerations in developing these policies that must be taken into account:

Maternity leave policies may inadvertently discriminate:

Generally, if an employer offers a benefit only to members of one protected class (i.e., women), the employer may have discriminated against employees outside of that protected class (i.e., men).  It is well established under federal law, however, that employers may offer paid maternity leave to cover a mother’s disability arising from childbirth and related medical conditions.  This is different from time away from work to bond with a child.

Benefits offered to only mothers must be limited to disability arising from childbirth:

  • Employers need to be careful that maternity leave policies differentiate between medical leave and child bonding leave.
  • Medical opinion generally recognizes a period of convalescence for mothers of between 6 – 8 weeks.
  • Therefore, employers need to consider whether any additional paid time (which would be parental bonding time) must be offered to all employees, regardless of sex, with new babies/children to ensure the policy is not discriminatory.
  • Also, there are several cases throughout the country where members of other protected classes (i.e., military servicemembers who only get unpaid military leave) have challenged maternity (and other such specialized leave policies other than PTO) as discriminatory. This case law is still developing, but employers need to carefully draft their leave policies.

Short Term Disability policies mandate 12-weeks paid maternity leave:

As a reminder, a new Virginia law mandates that all STD policies issued after July 1, 2021, include at least 12-weeks paid maternity leave immediately following childbirth. 

The new short term disability statute is codified at Va. Code § 38.2-3407.11:4.

Click here to view a downloadable PDF of the legal update.

This Legal Update is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions, please contact Karen Elliott at (804) -788-7762 or kelliott@eckertseamans.com or Brendan Horgan at (804) 788.7769 or bhorgan@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.

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