Month: April 2020

PPP Loan Forgiveness

NOTE—The Paycheck Protection Program Flexibility Act of 2020 amends the CARES Act and this article updates the information below>> click here to read more. 


This Article is based on information available as of April 29, 2020.  The information is subject to change as additional guidance is provided. In its interim rules dated April 2, 2020, the SBA stated that it will issue additional guidance on loan forgiveness. Additional guidance may change and/or clarify the manner in which loan forgiveness and related reductions in loan forgiveness are calculated.

 


Your business applied for and with luck received a loan (“PPP Loan”) through the Payroll Protection Program (“PPP”) established in the CARES Act.  While designed to maintain wages and salaries during the Coronavirus pandemic, the greatest appeal of the PPP Loan for most companies is the potential for loan forgiveness.  The two steps you need to take to ensure that your PPP Loan is forgiven in full is to spend the PPP Loan proceeds only on approved costs[1] and scrupulously document your spending during the eight weeks following receipt of the PPP Loan proceeds.

The amount of loan forgiveness can be up to the full principal amount of the PPP Loan and any accrued interest, provided the borrower uses all of the loan proceeds for forgivable purposes and employee and compensation levels are maintained.  Subject to the requirements described below, a company with a PPP Loan is eligible for forgiveness of the PPP loan in an amount equal to the sum of the following “costs incurred and payments made” during the eight weeks following its receipt of the loan proceeds:

Payroll Costs;

Interest on any covered mortgage obligation (not including any prepayment or payment of principal on a covered mortgage obligation);

Payment on any covered rent obligation; and

Payment of covered utility payment, which limited to electricity, gas, water, transportation, telephone, or internet access for which service began before February 15, 2020;

The CARES Act provides no guidance on the meaning or application of the phrase “costs incurred and payments made”.   Does use of “and” in the phrase require any expense to be BOTH incurred AND paid within the eight-week period?  At the daily SBA Richmond District Office webinar on SBA Economics Resources for COVID-19 on April 29, 2020, the moderator stated that the SBA will not be looking at payroll expenditures to see when the Payroll Costs were incurred.  The SBA simply wants the funds to be spent on payroll.  The guidance being that the SBA will only look for verification that the PPP Loan proceeds were used for Payroll Costs. 

To ensure that 100% of your PPP Loan is forgiven, the following requirements must be met:

      1. At least 75% of the loan proceeds must be spent on eligible payroll costs;
      2. The company must maintain the average number of full-time equivalent employees (“FTEEs”)[2] for each pay period falling within the eight weeks at the same level experienced by the employer during the FTEE Measuring Period (defined below);  and
      3. The company must maintain employee salaries for employees making under $100,000 annually at a level equal to 75% or greater than their previous salary, but for the employees with an annual salary of over $100,000, salaries can be reduced to $100,000.

To calculate the amount of loan forgiveness, the loan amount will be reduced proportionally by any reduction in FTEEs compared to the FTEE Measuring Period as well as any reduction in payment to an employee beyond 25% of their prior compensation (for those employees who otherwise make less than $100,000 per year). Further, to incentivize employers to retain and re-hire employees, borrowers will not be penalized for having a reduced payroll at the beginning of the period, if workers are re-hired or salaries restored to prior levels no later than June 30, 2020.

The reduction formula for fewer employees is: (a) the maximum available forgiveness, multiplied by (b) (i) the average number of FTEEs per month – calculated by the average number of FTEEs for each pay period falling within a month – during the eight week period, (ii) divided by either (at election of the borrower), the average number of FTEEs per month employed from February 15, 2019 to June 30, 2019, or from January 1, 2020 until February 29, 2020 (the “FTEE Measuring Period”).[3]

To obtain forgiveness of the PPP Loan the borrower must promptly apply to its servicing lender following the eight-week period after initial receipt of the loan proceeds. . The application must include:

Documentation verifying the number of FTEEs, pay rates, including IRS payroll tax filings and State income, payroll and unemployment insurance filings;

Documentation verifying payments on covered mortgage obligations, lease obligations, and utilities; and

Certification from a representative of the business or organization that is authorized to certify that the documentation provided is true and that the amount for which forgiveness is requested was used in accordance with the PPP guidelines for use.

The lender is required to issue a decision on an application for loan forgiveness within 60 days after the date on which it receives the application.  The amount of loan forgiveness, which would ordinarily for tax purposes be reported as income, shall be excluded from gross income of the borrower.[4]

Any amount of a PPP Loan that is not forgiven must be paid within two years of the PPP Loan proceeds being paid to the borrower, together with interest at the rate of 1% per annum.  No payments will be due until six months after the PPP Loan proceeds are paid to the borrower.


[1] If PPP Loan proceeds are used for unauthorized purposes, such amounts are not eligible for loan forgiveness and the Small Business Administration will direct the borrower to repay those amounts. If a company knowingly uses PPP Loan proceeds for unauthorized purposes, the company will be subject to additional liability such as charges for fraud and possibly have recourse for those amounts against the principals for the unauthorized use.

[2] Note that for PPP Loan forgiveness, the company needs to compute the average number of FTEEs, but eligibility for a PPP Loan is based on the number of employees.  The CARES Act requires a business to determine its average number of FTEEs for each pay period falling within one of the many different months that are part of the prescribed formula, but provides no guidance on how to quantify FTEEs. Presumably, the standard approach of dividing the number of working hours for a pay period into the total hours worked will be permissible.

[3] For seasonal employers a FTEE Measuring Period of February 15, 2019 until June 30, 2019 may be used.

[4] Currently there is no guidance on whether payroll costs paid by a company with the forgiven portion of a PPP Loan may not be deducted by the company as expenses on its 2020 income tax returns.

Environmental and Regulatory Compliance During the COVID-19 Pandemic: Best Practices

The regulatory landscape has become a challenging place to operate as the nation struggles to contain the spread of COVID-19.  The frequency and diversity of policy changes being issued by various levels of government, combined with the proliferation of information and misinformation, means regulated entities may find it difficult to track and accurately understand current environmental and safety requirements.  While we have posted several articles on regulatory guidance issued by EPA, States, and OSHA, now is a good time to remember fundamental best practices.

Comply If You Can

Be careful with what you read on the Internet.  Despite some reports to the contrary, all environmental and workplace laws are in effect and are being enforced.  EPA, OSHA, and many states,  including Virginia, Maryland, and North Carolina, have issued different variations of policies or announcements addressing enforcement discretion for noncompliance resulting from COVID-19 on a case-by-case basis.  While EPA’s policy is one of the more detailed in articulating the agency’s intentions, including specific compliance scenarios, many news reports, Internet sites, and advocacy groups have mischaracterized this policy.  Some reports have gone so far as to claim that EPA has stopped enforcing environmental laws altogether.  These reports are, quite simply, wrong, and forced EPA to issue a press release to “correct the record.”

The undercurrent in all enforcement discretion policies is this: If you can comply, you must comply; if you can’t comply fully, you must comply to the extent you can.  These policies articulate only that the regulator may consider COVID-19 considerations in enforcement decisions.  The burden of proof will be on the regulated entity, and regulated entities should not assume that a regulator will agree with their justifications.  Regarding environmental compliance, while the verbiage may differ between enforcement policies, generally speaking regulated entities should expect that these policies will apply only to routine reporting and monitoring activities; entities should not expect any relief for failing to report or respond to a release that may create an endangerment to the public or the environment.  In addition, it is always worth remembering that purposeful noncompliance is often a criminal act, and no policy excuses criminal violations.

Document If You Can’t

If a regulated entity is unable to comply with a requirement, they should document the reasons why.  For example, if a business simply cannot find an available inspector to conduct a tank integrity test by a compliance date, the business should document its efforts to find an available inspector, such as which inspectors were called, when, the justification for their unavailability, and importantly, when they will be available if known.  Regulated entities will be better positioned to address regulator and public concerns if they document plans to come into compliance as soon as practicable, and develop mitigation strategies to help protect against unauthorized releases or exceedances in the interim, such as a more robust internal inspection regime, using less hazardous formulations or processes, or suspending waste-generating activities where feasible.

Communicate With Your Regulator

Once noncompliance is a possibility, follow the steps delineated by the applicable enforcement policy or your enforcement document to communicate with the regulator, which could be as simple as an informal email, or may require a formal written letter.  Early notice may help satisfy notice requirements in a permit or enforcement document, preserve any force majeure rights, and may preemptively address allegations of intentional noncompliance arising from third-parties, such as a citizen complaint.  A notice to a regulator should include the same kind information noted above, such as how the regulated entity is attempting to comply to the extent practicable, a plan to come back into compliance, and any actions taken to mitigate against potential harm the could result from noncompliance.

Review Your Documents

It is an unfortunate reality that, in normal times, many regulated entities do not read their permits or enforcement documents closely enough, which results in missed reporting deadlines, incomplete report content, or a misunderstanding of what the document requires.  Another common problem is that individuals may read the document when first issued years before, but haven’t read them since.  Employees implementing compliance requirements may rely mistakenly on word-of-mouth rather than review the permit or enforcement document.  More than ever it is critically important to understand what these documents say so that the regulated entity knows when it may need to seek timely forbearance from a regulator, what notice requirements are in place, and what relief the document itself can provide if compliance becomes impracticable.

Resiliency          

After reviewing their compliance documents, regulated entities should ensure that, as part of their business continuity plans, they account for the logistic and administrative requirements needed to comply, including simple things like ensuring appropriate employees have the login to EPA or state regulator websites, they understand report due dates, have access to compliance documents that may currently be accessible only from a computer in the office, and whether employees have the Internet access and software at home to file necessary reports digitally. Regulated entities should also ensure they have access to important contact information as they shift to remote operations, to include email addresses and telephone numbers for Federal and State regulators, compliance and response contractors, and counsel. Regulated entities must also ensure that, if operations are suspended or reduced, waste material or other substances that can present a public threat are secured to prevent unauthorized access and potential releases.  For example, where localities have suspended hazardous waste accumulation times, entities must continue to ensure these wastes are properly categorized, stored, are appropriately labeled, tracked, and a process is in place to inspect them periodically.

Keep Current

Finally, government guidance is being promulgated on a frequent basis, particularly at the state and local level.  When you add federal guidance issued by numerous agencies, regulated entities may face a labyrinth of sometimes inconsistent policies.  This can be particularly challenging for regulated entities that have operations in more than one locality or state.  It is critical, particularly in light of stay-at-home orders and social distancing, that regulated entities stay connected with their trade groups, consultants, and counsel to maintain an up-to-date understanding of how governmental policies affect their operations today, and how compliance activities will be judged by regulators when the pandemic passes.  One excellent source of state information is the Counsel of State Governments COVID-19 page, which has a library of state executive orders and policies, in addition to links to federal agency websites.

To this end, the attorneys at Vandeventer Black are available to guide you through these challenging times, and provide advice on the unique problems associated with the COVID-19 pandemic.  For any questions, please do not hesitate to contact us at (757) 446-8600 or visit us at VanBlackLaw.com.

COVID-19 Legislative Update: Community Association Boards May Meet Virtually During State of Emergency

On April 22, 2020, the Virginia General Assembly approved two budget amendments recommended by Governor Northam that allow boards of directors of property owners’ associations and condominium unit owners’ associations to meet virtually when the Governor has declared a state of emergency. They will be effective once the Governor signs the legislation.  Prior existing law allowed property owners’ associations and condominium unit owners’ associations to have virtual meetings only if at least two board members were physically present at the meeting location stated in the notice.  Thus, having a board meeting that satisfied the statutory requirements during the COVID-19 pandemic proved challenging.

The amendments allow a common interest community to meet by electronic communication without having a member of the board physically present at a certain location when the Governor has declared a state of emergency so long as: 

    1. the nature of the emergency makes it impracticable or unsafe for the board to assemble in a single location;
    2. the meeting is to discuss or transact business required by law or necessary to continue operations of the association and the discharge of its lawful purposes, duties, and responsibilities; and
    3. the board distributes minutes of the meeting to its members using the same method it used to provide notice of the board meeting to its members.  

The board is also required to (1) give notice of the meeting to the association’s members using the best available method in light of the emergency and that notice must be given at the same time as notice is provided to members of the board; and (2) make arrangements for association members to access the meeting electronically, including, to the extent practicable, videoconferencing technology and, if the means of communication allow, provide members with an opportunity to comment. 

The minutes of the meeting should state the nature of the emergency, the fact that the meeting was held by electronic communication and the type of electronic communication used.

Notably, these changes are temporary, as this provision lasts only through June 30, 2020, but once the other adopted amendment has been signed by the Governor, the provision may be extended through June 30, 2022, unless the General Assembly decides to modify, extend or make permanent this provision. 

These changes will give boards a useful tool to make decisions during the COVID-19 pandemic and other times of emergency declared by the Governor when meeting in person for necessary business would be impracticable or unsafe.  Association boards need to be intentional and careful in closely adhering to the permissible reasons for dispensing with physical presence at a meeting location and the required procedures to have a virtual meeting.  This will involve care and steps to be taken before and after the meeting.  Boards and managers should familiarize themselves with the parameters of this new law and consult legal counsel to ensure compliance.

If you have any questions about how a common interest community board continues to conduct business during the pandemic, contact us.  Vandeventer Black has a knowledgeable and experienced team of community association attorneys.  We can provide guidance and help navigate these extraordinary times.  Vandeventer Black has the technology and resources in place to provide responsive and effective legal services, even as we work from home. 

COVID-19 And The Longshore And Harbor Workers’ Compensation Act

While many states, including Virginia, have issued stay at home orders to help reduce the number of persons infected with COVID-19, most ship builders, ship repairmen, terminal and harbor workers are essential employees and must work despite the risk of catching and/or spreading the disease. It is not hard to imagine that these employees may inevitably get sick and claim benefits under the Longshore Act. The following article provides an overview of some of the potential issues involved with a Longshore Act claim based on COVID-19.  

The Longshore Act entitles covered employees to recover benefits when an occupational disease or infection arises out of exposure to harmful employment conditions that are present in a “peculiar or increased degree” by comparison with employment generally.  Thus, not only must hazardous conditions of the employment be the cause of the disease, those conditions must be peculiar to the particular employment, i.e., “a worker must be exposed to hazards greater than those involved in ordinary living.”

The largest hurdle, then, for a COVID-19 claim under the Longshore Act will be proving that the disease arose from the peculiar hazards of employment.  The likelihood of an employee meeting this burden will depend on his or her employer’s adherence to social distancing recommendations and sanitation practices, OSHA guidelines, and/or the number of COVID-19 diagnoses in the workplace. Additionally, the claimant’s activities outside of work will be important. Contact tracing may well be crucial in this analysis.

But even if the employee can establish that he or she might have contracted the disease at the workplace, the fact that exposure to COVID-19 is a risk to every individual regardless of his/her employment will make it difficult to prove that the peculiar risks of the employment exposed the employee to hazards greater than those in ordinary living.  The employee may attempt to do so by proving that the type of employment made it impossible to comply with social distancing and sanitation guidelines, such as the need to work in close or cramped conditions, but if employers make stringent efforts to prevent such conditions, such proof will be difficult.

While there is currently no specific Longshore Act COVID-19 guidance on what determines work-relatedness, published OSHA enforcement guidance suggests that OSHA will not assume a causal relationship between COVID-19 and the workplace unless there is objective evidence that the contraction of the disease was work-related – such as several cases developing among workers who closely work together without any other explanation. The Division of Federal Employee Compensation (DFEC) has also provided guidance on work-related causation. Unless an employee is a high-risk employee [health workers and law enforcement], the DFEC is requiring that the employee provide a factual statement that includes all available evidence concerning their exposure to prove the exposure occurred at work.

As guidance from both agencies suggests, proving that COVID-19 exposure is work-related is a fact-specific inquiry that will likely be decided on a case-by-case basis. To safeguard workers and mitigate against Longshore Act claims, employers should make every effort to follow social distancing recommendations, enhance cleaning, sanitizing and mitigation practices, and follow relevant CDC, OSHA, and other appropriate workplace guidance.

Please visit our specialized Coronavirus Legal Services page:

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Electronic Notarization And Remote Notarization: What Is It, And Is It Available In Virginia?

In light of the recent social distancing guidelines, parties are searching for alternative methods of doing business and closing transactions while avoiding face-to-face interaction. As a result, the issue of electronic notarization and remote notarization has gained increasing importance. Are these alternative methods to the traditional notarization process – which typically requires signing a document in the physical presence of a notary – permitted in Virginia?

In fact, there really are two separate issues: (1) whether electronic notarization or “e-notarization” is available (where the actual process of notarizing the document is done electronically), and (2) whether a notary can notarize a document after “remotely” witnessing a signature via video (remote notarization).

The short answer is “yes” to both: (1) electronic notarization is available in Virginia, but it requires certain technological capabilities and a notary who has obtained an additional certification, and (2) a notary may remotely witness a signature in Virginia, provided certain requirements are met.

 

Electronic Notarization (e-notarization)

Electronic notarization, or e-notarization, is permissible in Virginia. In e-notarization, the document being notarized is itself in electronic format, such as a .pdf (and not a physical piece of paper). The notary uses a computer program to electronically “stamp” the notary’s signature and seal. This e-notarization process otherwise must meet the requirements of a traditional notary, except that the notary’s signature and seal information is affixed electronically and is not physically “stamped” on the piece of paper. This electronic stamp and signature must be unique and independently verifiable. Once electronically stamped, the document carries that notary stamp and it cannot be removed.

As a caution, however, not all notaries may perform e-notarization. A notary must first register with the Secretary of the Commonwealth and demonstrate certain technological capabilities related to electronic signatures and seals. In order to apply for an e-notarization certificate, a notary must e-sign the application using the program that the notary will use to electronically notarize documents.

An electronic notary is required to keep a record of all electronic notarization acts for five (5) years.

The e-notarization process can be used to electronically notarize a document with the signer of the document appearing either in person or by video technology (remote notarization).

 

Remote Notarization (remote online notary, or RON)

In Virginia, notarizing a document “remotely” is permissible. In fact, Virginia became the first state in 2012 to formally authorize and provide a legal framework for such notarizations. In performing remote (online) notarizations, the notary must abide by the normal notary rules, except that the signer is allowed to appear via video and sign on video, as opposed to physically signing in the presence of the notary.

To appear remotely via video: (i) the notary and document signer must simultaneously see and speak to each other, (ii) the video/audio feed must be live and in real time, and (iii) the transmission must be “secure from interception through lawful means by anyone other than the persons communicating.”

There are also stricter requirements for verifying the identity of the person signing the document. The notary must obtain satisfactory evidence of the identity of the signer by (i) personal knowledge, (ii) antecedent (previous) proofing – relying on a prior in-person verification process meeting certain requirements, or (ii) biometrics or PIV card.

The notary is required to keep a record of all remote video notarial acts for a period of five (5) years.

Typically, when remote notarization is used, the notary will also electronically notarize the document, as it will likely all be done in the same computer program at the same time. 

Additionally, related information regarding electronic notarization and remote notarization can be found on the Secretary of the Commonwealth’s website, and in the Handbook for Virginia Notaries Public, published by the Office of the Secretary of the Commonwealth.

Please visit our specialized Coronavirus Legal Services page:

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Virginia Bans Covenants Not To Compete for Some Employees

While you were distracted with the COVID-19 crisis, Virginia enacted a number of surprising laws that chip away at its staunchly pro-employer reputation. One such law, Va. Code § 40.1-28.7:7, which goes into effect on July 1, 2020, prohibits employers from entering into, enforcing, or threatening to enforce a covenant not to compete with so-called “low wage” employees.

A “low-wage employee” is one whose average weekly earnings are less than the average weekly wage in the Commonwealth, which is equal to the maximum workers’ compensation benefits allowed by the Virginia Workers’ Compensation Commission. That figure, which is adjusted annually, will be $1,137 per week or $59,124 per year as of July 1, 2020. Further, “low-wage employee” includes interns, students, apprentices, or trainees, paid or unpaid, as well as independent contractors compensated at an hourly rate that is less than the median hourly wage for the Commonwealth, which is currently $20.30. “Low-wage employee” does not include someone whose earnings are derived, in whole or in predominant part, from sales commissions, incentives, or bonuses.

The law defines a “covenant not to compete” as any agreement between an employer and employee that restricts the employee’s ability, following termination of employment, to compete with his or her former employer. The law does not prohibit non-disclosure agreements. As for non-solicitation agreements (i.e., an agreement that restricts the former employee from soliciting the former employer’s customers), it appears that such an agreement may be permissible so long as it does not restrict the former employee from doing work for the customer if the former employee does not initiate contact with or solicit the customer.

An employer who violates this new law is subject to a civil penalty of $10,000 per violation. Further, the law authorizes the employee to bring a civil action against a former employer that attempts to enforce a non-compete in violation of the law. The employee can recover monetary damages, including attorneys’ fees and costs, as well as other relief.

When the law goes into effect, employers must post in their workplaces either a copy of the new law or a summary approved by the Virginia Department of Labor and Industry. No such summary is available yet.

The law applies only to covenants not to compete that are entered into on or after July 1, 2020. Therefore, pre-existing covenants not to compete are not directly affected by the law, though we expect the law may make it more difficult to enforce such pre-existing covenants.

Employers should review their employment agreements with experienced employment law counsel to see if any changes are needed, particularly before entering into any new employment agreements containing post-employment restrictions. Vandeventer Black LLP’s employment attorneys are available to assist.

For more information and to read additional articles regarding COVID-19, please click here.

New Guidance From OSHA About COVID-19 In The Workplace

The federal Occupational Safety and Health Administration (OSHA) is continuing to address safety concerns in the workplace due to the novel coronavirus known as COVID-19 by providing enforcement guidance to Compliance Safety and Health Officers (CSHOs) and Employers. So far in April 2020, OSHA released several enforcement memoranda concerning COVID-19.  They can be accessed on OSHA’s Covid-19 website. 

This article provides a brief summary of OSHA’s most recent guidance concerning COVID-19 in the workplace.

 

Guidance for Enforcing Respiratory Protection Standard

OSHA’s Respiratory Protection Standard requires that employers provide respirator equipment to employees when such equipment is necessary to protect their health. It also requires that employers establish and maintain a protection program for the respiratory equipment. OSHA has published three new enforcement guidance documents elaborating on how employers can comply with this standard during the COVID-19 pandemic.

First, on March 14th, OSHA published temporary guidance solely for healthcare personnel. The purpose of that guidance was to ensure that healthcare personnel who were in direct contact with COVID-19 patients had the proper respiratory protection. OSHA recommended that healthcare workers change their fit test method to preserve the integrity of N95 equipment, which would allow the equipment to be reused.

Following its March 2020 guidance for healthcare workers, OSHA published two memoranda on April 3, 2020, for all industries that already require employers to use respiratory protection equipment. Due to the shortage of N95 equipment, OSHA has now allowed these industries to use alternative respirators or to extend their use of respiratory equipment by reusing equipment and using expired equipment under certain specific circumstances that are explained in detail in the guidelines. Any alternative respirator used, however, must be on the National Institute for Occupational Safety and Health (NIOSH) approved list.

 

Worker Retaliation Reminder

On April 8, 2020, OSHA issued a national news release reminding all employers that it is illegal to retaliate against workers who report unsafe and unhealthy working conditions during the COVID-19 pandemic. Retaliation can consist of terminations, demotions, denials of overtime or promotion, or reduced hours/pay. Employees may file a complaint with OSHA if they believe that their employers retaliated against them for making safety complaints related to COVID-19.

OSHA’s Recordkeeping Requirements

OSHA already requires employers to report occupational diseases when they are work-related and when the case involves medical treatment or days away from work. On April 10, 2020, OSHA provided guidance stating that, for the coronavirus, it would not enforce the recording requirements against certain employers due to the difficulty of determining if a COVID-19 case is work-related. Instead, OSHA is encouraging employers to focus on implementing good hygiene practices and mitigating further COVID-19 infections. This enforcement waiver does not apply to the healthcare industry, emergency response organizations, or correctional institutions. Additionally, the waiver will not apply to employers when the following two situations exist: (1) there is objective evidence that a COVID-19 case may be work related and (2) objective evidence is readily available to the employer.

Click here to access the full recording guidance.

Interim Enforcement Response Plan

On April 13, 2020, OSHA published an Interim Enforcement Response Plan (the “Plan”) for Area OSHA Directors and their investigators on how to handle inspections, referrals, severe illness reports, and complaints due to COVID-19. The Plan provides instruction and guidance for all investigations and inspections related to COVID-19 and includes several procedure and sample attachments.

Importantly, OSHA recommends that, in most non-healthcare cases, its investigators should follow informal complaint and referral procedures. Therefore, for COVID-19 related complaints, it appears that OSHA will only conduct on-site inspections for fatalities and imminent danger exposures.

Click here to access the full text of the Plan and its Attachments.

Additional Information

On April 6, 2020, OSHA published a poster highlighting ten steps all workplaces can take to reduce the risk of COVID-19. This OSHA poster is not mandatory.  But it may be helpful for employers to remind employees to stay vigilant in the fight against COVID-19. 

Any additional questions about COVID-19 in the workplace can be answered by the authoring attorney or another attorney from the Vandeventer Black Labor & Employment Law Group.

Please visit our specialized Coronavirus Legal Services page:

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Coronavirus And Virginia Workers’ Compensation Part II: Burdens Of Proof And The Stay-At-Home Order

This article is a follow up to the Coronavirus and Virginia Workers’ Compensation article found HERE and deals with how social distancing precautions and the Governor’s stay-at-home order may impact the Virginia workers’ compensation treatment of Coronavirus claims.  As previously discussed, it seems likely that Coronavirus claims will fall within the ‘ordinary disease of life’ category of claims under the Virginia Workers’ Compensation Act.  These types of claims impose a heightened burden of proof on claimants to show by clear and convincing evidence that the virus arose out of and in the course of their employment and did not result from causes outside of the employment.  

In an effort to flatten the curve in Virginia, Governor Northam issued a number of orders aimed at mitigating the Coronavirus threat.  Executive Order 53 required certain businesses to close or to significantly modify their business models to comply with the ban on gatherings of 10 or more people. It also required all business to adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities while in operation.  Additionally, Executive Order 55 requires Virginians to remain at home except for certain enumerated purposes, such as obtaining food, medical services, or going to and from work. 

How might these orders effect potential Coronavirus workers’ compensation claims?  They may make it easier for claimants diagnosed with Coronavirus to meet their burden to show that the virus arose out of and in the course of their employment and did not result from causes outside of the employment.  For example, a grocery store worker who becomes infected might be able to show by clear and convincing evidence that her exposure occurred at work where, a) there is a known outbreak at the store, and b) due to the stay-at-home order, the worker had no other possible exposures.  Similarly, if a claimant was able to show that his or her employer failed to adhere to social distancing recommendations and sanitation practices, and/or OSHA guidelines the likelihood of the claimant meeting the necessary burden of proof might also increase. 

A workplace outbreak combined with a lack of possible outside exposures due to the stay-at-home restrictions and social distancing may create a factual scenario where workers’ compensation liability is possible. In an effort to safeguard workers and mitigate against workers compensation risks, employers should make every effort to follow social distancing recommendations, enhanced sanitizing practices, and other appropriate workplace guidance.

If you have any questions about how the Virginia workers’ compensation treatment of Coronavirus claims may impact your business, please contact us. Vandeventer Black has a knowledgeable and experienced team of workers’ compensation attorneys able to assist you. 

For more information and to read additional articles regarding COVID-19, please click here.

Community Association Board Meetings During the Time of COVID-19

Our office has received numerous inquiries regarding whether and how boards of directors of Virginia community associations can meet the statutory requirements for open meetings and the “2-director rule” during the coronavirus pandemic with the Governor’s Executive Orders requiring social distancing and barring group gatherings of 10 or more people.

Open Board Meeting Requirement

The basic principle regarding board meetings for Virginia property owners’ associations and condominium associations is that all meetings of the board (including any committee or subcommittee meetings) where the business of the Association is discussed or transacted shall be open to all owners of record, and boards shall not use work sessions or other informal gatherings to circumvent the open meeting requirements.  See Va. Code §§ 55.1-1816(A), 55.1-1949(B)(1).  The only time boards, committees and subcommittees may meet behind closed doors is if boards properly convene and executive session for one of the limited, statutorily-permitted reasons.  See generally, Va. Code §§ 55.1-1816(C), 55.1-1949(C). In furtherance of the open meeting requirement, notice of the time, date, and place of each board meeting must be published where it is reasonably calculated to be available to a majority of owners.  See Va. Code §§ 55.1-1816(B); 55.1-1949(B)(2).

Two-Director Rule

Despite the open meeting requirement, both the Virginia Property Owners’ Association Act and Condominium Act permit boards to conduct meetings electronically by telephone or video conference or other electronic means, so long as:

  1. at least two board members are physically present at the meeting place included in the meeting notice, and
  2. the audio equipment is sufficient for any member in attendance to hear what is said by any board member participating in the meeting who is not physically present.

See Va. Code §§ 55.1-1816(B); 55.1-1949(B)(4).

Impact of Executive Orders

While it would seem like Virginia’s State of Emergency and the Governor’s Executive Orders would justify not having two board members present, there is no executive, judicial or legislative order in place that overrides or suspends the statutory requirement to have two board members physically present at the meeting place included in the notice.  Accordingly, if a board meets while these orders are in place, it must and can still satisfy the statutory requirements to (1) be open to all members and (2) have at least two board members physically present at the meeting location. 

The board meeting could take place on the association’s common area (e.g. clubhouse, conference room, lobby, parking lot, end of a cul-de-sac, etc.) or otherwise outside (an owner’s driveway or front yard).  The two board members physically present should social distance (at least 6 feet) and no more than 10 persons total may be present (inclusive of the board members, management, and community members) and all persons should maintain at least 6 feet distance from each other.  If the board meeting occurs inside, arrange furniture to enable social distancing, sanitize the space before and after, require attendees to wash their hands or provide hand sanitizer, and encourage the use of face masks to comply with the Governor’s Executive Orders. 

Whether the board meeting is held indoors or outdoors, all attendees can participate by teleconference or video conference or other electronic means, such as Teams or Zoom, provided that the members who participate electronically can hear what is said by all board members.  The meeting notice should include the video- or teleconference call-in information. 

Electronic Meeting Logistics

Boards should consider adopting a resolution addressing how the video or conference call will work, including special instructions for the statutorily-required owners’ forum (e.g. how questions or comments will be received in advance or during the meeting, time allotment, etc.).  In addition, boards should consider the logistics of executive sessions that may require a separate and secure meeting to limit “attendance” to board members.

Board Action Outside a Meeting

Taking action in meetings is the best way to conduct business.  It allows for debate and discussion and more informed decisions.  It satisfies transparency and permits a homeowners’ forum.  If a meeting cannot occur, whether for health concerns, technological reasons, or otherwise, a board may still be able to act without a meeting if the documents (usually the bylaws) permit.  Action without a meeting requires unanimous written consent.  This means that every director must agree to the action, and it must be in writing.  Any action taken by a board in this manner needs to be addressed at the next board meeting, ratified, and included in the minutes. 

If you have any questions about how a board continues to conduct business during the pandemic, call your association attorney. Vandeventer Black has a knowledgeable and experienced team of community association attorneys.  Please contact us if we can provide guidance, draft policies and help navigate these extraordinary times.  Vandeventer Black has technology and resources in place to provide responsive and effective legal services, even as we work from home. 

For more information and to read additional articles regarding COVID-19, please click here.

The Virginia Values Act: Details of the Comprehensive LGBT Anti-Discrimination Law Recently Passed in Virginia

On April 11, 2020, Governor Northam signed into law the Virginia Values Act, which goes into effect on July 1, 2020. The Virginia Values Act provides comprehensive protection against discrimination for LGBTQ+ persons and other designated persons.

The Virginia Values Act amends both the Virginia Human Rights Act and the Virginia Fair Housing Act by expanding the list of protected classes under each respective law. The current laws prohibit discrimination based on race, color, national origin, sex, pregnancy, childbirth or other related conditions (including lactation), age (over 40), marital status, or disability. The Virginia Values Act adds the additional classes of sexual orientation, gender identity, or veteran status (collectively the “Protected Classes”). In the Virginia Values Act, “sexual orientation” is defined as a person’s actual or perceived heterosexuality, bisexuality, or homosexuality. Likewise, this new Act defines “gender identity” as appearance or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.

The terms of the Act will affect both state and private employers. It prohibits state agencies, institutions, boards, commissions, and councils from taking any adverse employment action against a member of one of the Protected Classes. The Act affects private employers by amending the Virginia Human Rights Act.  Previously, the Virginia Human Rights Act only applied to employers with a minimum of 5 and a maximum of 15 employees.  The Virginia Values Act amends that provision by defining “employer” as a business that employs more than 15 employees.  If, however, the prohibited action is an unlawful discharge, then a business employing over 5 employees will be a covered employer (except for unlawful discharge for age, which has a minimum of 5 and a maximum of 20 employee requirement).

Further, the Virginia Values Act prohibits covered employers, employment agencies, and labor organizations from excluding a person or taking an adverse employment action against a person for being a part of a Protected Class. This applies both to current employees and applicants for employment. Additionally, the Virginia Values Act prohibits employers from using any of the Protected Classes as a motivating factor for an employment practice, even if other factors contribute or also apply to the motivation.

The Act, however, does not prohibit employers from making decisions based on sex, religion, or age if the decision is a bona fide occupational qualification reasonably necessary for the employer’s normal operations. Additionally, the Act does not prohibit an employer from making promotions based on a bona fide seniority system or requiring proof of citizenship for employment.

Along with those employment protections, the Act also protects persons in the Protected Classes from discrimination in places providing public accommodation. Once the law goes into effect, it shall be unlawful for any place or business offering or holding out to the general public to discriminate based on sexual orientation, gender identity, or any of the other Protected Classes. However, private clubs and places of accommodation owned by or operated on behalf of any religious corporation, association, or society are exempt from this provision.

The Virginia Values Act also includes housing protections for those in Protected Classes by amending the Virginia Fair Housing law to include sexual orientation and gender identity as Protected Classes against housing related discrimination. The new Act also changes terminology, changing as a Protected Class reference the term “handicap” to “disability.” With these changes, it will be unlawful to discriminate based on those additional Protected Classes when renting or selling property, including residential real estate transactions. Further, the Act voids any restrictive covenants in real estate agreements affecting any of the Protected Classes and prohibits any such covenant in the future. 

Lastly, the Act provides significant monetary relief associated with the enforcement of its changes, including authorizing compensatory damages, punitive damages, attorney’s fees, and court costs to a person harmed in violation of the Act. These new laws are sweeping anti-discrimination protects placing Virginia in the forefront of LGBTQ protection, with comprehensive protections the violation of which can lead to severe and expensive consequences. The lawyers at Vandeventer Black LLP are available to assist regarding these new and any other anti-discrimination laws in Virginia. For additional information, please contact the authoring attorney.

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