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Summary of Live Chat 11 - May 29

The VBA would like to thank LPMD Chair Cliona Mary Robb for her summary of this conference call.

The 11th COVID-19 Law Practice Live Chat on May 29 included these speakers and topics:

  • Samantha Sedivy (Reed Smith LLP) on the latest developments regarding Governor Northam’s orders,
  • Kristina Vaquera (Jackson Lewis P.C.), who spoke the previous week about returning employees to the worksite, with a short follow-up on the importance of having workplace plans in the event of a second wave of shutdowns,
  • Amy Pocklington (Ogletree Deakins) on the lessons learned in implementing a return-to-worksite plan and the options for employers when workers refuse to return or follow workplace safety protocols, and
  • Dustin DeVore and Jonathan Lazarow (Kaufman & Canoles, P.C.) with the latest updates on Paycheck Protection Program loans.

Follow-up items:
Kristina Vaquera will provide a sample checklist for the VBA website.
Amy Pocklington will consider if there is guidance that should be posted on the VBA website such as OHSA regulations for employee screenings.

Summary

Samantha Sedivy on Governor’s orders

  • State standards will be issued in the next few weeks and will be more detailed than the Phase 1 and Phase 2 guidance.
  • Mask requirement includes courthouses

Kristina Vaquera on having workplace plans for second wave of shutdowns

  • Your workplace plan should not be static: revise it based on lessons learned, especially what works and does not work.
  • Technology: now is a good time to shore up privacy and security issues.
  • Use this time to crosstrain employees.
  • Make sure to be geographically diverse to avoid hot spots if you can regarding supply lines
  • Expand offerings that don’t require in-person presence.
  • Get PPE
  • Explore different business interruption insurance, etc. Make temporary changes permanent? Keep in mind information insurance carriers may share. Keep in mind privacy laws.
  • Have “break the glass” kits in place.

Amy Pocklington on employees refusing to follow workplace plans

  • It’s essential to have a good “return to work plan” in place and make sure you're communicating with your employees and you're following CDC guidelines.
  • A generalized fear of COVID-19 is not a sufficient basis for not returning to work. If it is just a generalized concern, you have options and can discipline; termination is definitely one of those options.
  • Getting more money from unemployment benefits is not a sufficient basis for declining to return to work and still remain eligible for unemployment benefits.
  • Section 7 of the NLRA could potentially apply if you had a group of employees engaged in concerted activity over their concerns about the safety of their workplace. The Section 7 standard is pretty low: it is do the employees have an honest belief that the working conditions are not safe, and that’s not limited to a unionized workforce. And in that instance, any kind of discipline of those employees could be considered retaliation.
  • If you have an employee who has expressed concern based on an underlying health condition or being particularly vulnerable or susceptible because of age or some sort of underlying health condition, then you'll want to work with that employee, and you certainly want to be mindful of ADA obligations.
  • However, an employer may not decide not to return an older employee or an employee that may have a disability. That is making an employment determination based on age or underlying health conditions.
  • EEOC has said you can send someone home who refuses to comply with a daily wellness check or health screenings.
  • Regarding the face covering requirement, there are some respiratory disabilities like asthma and there are heart complications that make wearing face coverings challenging. If an employee requests an accommodation and has a disability that would be covered by the ADA, then the employer obviously needs to engage in the interactive process.
  • Having an employee just say I don't like to wear this, it makes me hot, I feel like I can't breathe, it's just not comfortable, is not protected and you can discipline the employee if you've made the decision to require face coverings.

Dustin DeVore and Jonathan Lazarow on recent Paycheck Protection Plan developments.

  • There is still money available for law firms for PPP funds, and this can be more attractive now that the $2 million safe harbor is in place.
  • You can still count an employee in the calculations for PPP loan forgiveness if the employee is offered a job and refuses to return to work.
  • Congressional legislation passed the House yesterday and could pass the Senate next week unless lobbyists add provisions that complicate quick passage
    • House version lowers 75% on payroll to 60% on payroll to be eligible for loan forgiveness.
    • House version increases the time to use PPP funds from the current 8 weeks to the earlier of 24 weeks or 12/31/2020. Senate version uses 16 weeks.
    • Currently small businesses must choose between deferring payroll taxes or getting a PPP loan.  The new legislation is expected to let small businesses do both.
    • Small businesses could receive full forgiveness without regard to rehiring back all employees so long as they demonstrate that COVID-19 makes it infeasible to rehire at full pre-COVID-19 capacity.
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