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Summary of April 10 Live Chat

Summary of COVID-19 Law Practice Live Chat IV from April 10

The information here does not render legal advice. It summarizes an information exchange.

Six topics were addressed on the call:

  • Legislative update
  • Business interruption claims
  • Pro bono opportunities in the COVID era
  • CARES Act—FFRCA regulations and DOL guidance
  • Litigation experiences and work-arounds
  • A caller's question

Legislative update

The governor had until midnight Saturday, April 11, to sign, veto or amend legislation passed in the 2020 session of the General Assembly.

From the VBA legislative agenda of 19 bills, five awaited gubernatorial consideration by last Saturday. Additionally, the governor has sent back for General Assembly consideration at the April 22 reconvened session his recommendations on two bills: HB 651 (Hope) regarding statutory recoupment and HB 1149 (Keam) regarding the Virginia Stock Corporation Act.

An update has been posted to the VBA 2020 legislative agenda at a glance page, vba.org/2020bills.

The state budget was expected to undergo a substantial rewrite for both houses to take up at the reconvened session. Judicial vacancies on the Virginia Court of Appeals and in the State Corporation Commission were left unfilled during the regular session. If the legislature does not take these up, the governor may fill these vacancies with interim appointments.

Business interruption claims

With Doug Palais (Vandeventer Black LLP)

Read your law firm’s policies. The focus is on CGLs, or Commercial General Liability policies, as the type of insurance some entities carry for business interruption coverage. Not all policies are the same. Many such policies exclude infectious disease as a covered claim. Some require a named peril or direct physical loss.

At least six states, not including Virginia, are considering legislation to require insurers to pay out business interruption claims under COVID-19 and then obtain relief through funds the state collects from insurers. The insurance industry is opposed to such legislation.

Succeeding in a claim may be an uphill battle.

A lawsuit that will be closely watched involves a New Orleans restaurant with an all-risk property policy. It is suing its insurer for coverage of business interruption costs after civil authorities ordered limitations on restaurants, affecting business income. It also cites costs to clean any contamination from the virus. See Cajun Conti LLC, et al. v. Certain Underwriters of Lloyd’s, et al.

As for the timing to file for claims, there should be no issue with any deadlines to file.

Law firms and their clients are advised to push for any claim submitted to the agent to be relayed to the insurance company, because the company, not the agent, determines the validity of claims.

Pro bono opportunities in the COVID era

With Nicole Harrell (Kaufman & Canoles, P.C.) and David Greenspan (McGuireWoods LLP), co-chairs of the VBA Pro Bono Council

Several task forces are studying the need for pro bono legal assistance in this time of pandemic and what can be done to garner support to meet that need. One prediction is a potential increase in evictions once Virginia’s stay on evictions is lifted. Another is a possible rise in consumer financing issues when those who have lost jobs use credit for groceries and other goods. This soon into the crisis, the biggest needs are a little unclear.

JusticeServer.org

Because some Virginia lawyers now may have a bit of extra time on their hands, lawyers interested in performing some pro bono work are encouraged to sign up for JusticeServer. This online portal at JusticeServer.org connects legal aid-reviewed cases with willing attorneys. Registered users can focus on cases in their home area or elsewhere in Virginia. Some remote lawyering is possible, although with the judicial emergency that option may be limited now. New users must register first on JusticeServer. The portal is easy to use. Anyone with questions can reach out to Nicole Harrell or to the local legal aid office.

Virginia Free Legal Answers

This is “armchair lawyering.”

Attorney volunteers who register with the site at https://virginia.freelegalanswers.org can answer posted questions any time of the day or night and answer as many questions as they like per visit. Attorney registration is located at the top of the website. This is part of an ABA initiative. Individual attorneys who in a year answer 50 or more civil legal questions, and legal offices responding to 75 or more inquiries, are recognized as Pro Bono Leaders.

Those on the call were reminded of Rule 6.1 in Virginia’s Professional Guidelines and Rules of Conduct. Every lawyer has a responsibility to help individuals who are unable to pay for legal services. Attorneys are urged to give 2% of their professional time annually to pro bono publico services.

CARES Act—FFRCA regulations and DOL guidance

With Steve Brown (IslerDare PC)

A member on the call asked about how an employer should treat a staff member who wants to attend a wedding or funeral. Steve Brown, chair of the VBA Labor and Employment Law Section, said the employer should ask about the numbers of people at the event and can require the employee to self-quarantine for 14 days afterward. The employee can take PTO. The employer does not have to pay the employee’s salary to protect the workforce. Brown also said the denomination can decide about congregating, not the governor. This circumstance does not fall under the FFCRA.

Brown spoke about Virginia’s changes in unemployment insurance program as a result of the federal CARES Act. Benefits increased by $600 for claims effect March 29 until July 31. Additionally, a federal program called Pandemic Unemployment Assistance expands benefits to affected workers ineligible under traditional unemployment insurance, such as the self-employed. Application is required. See Virginia unemployment benefits rise as a result of CARES Act (April 14) on the VBA covid-resources page under Virginia Action, and Department of Labor letter to state workforce officials about temporary increase in unemployment benefits (April 14) on the VBA page under Federal Action. In some cases, the employee may make more money from unemployment than working. Employees for whom work exists are ineligible to receive unemployment insurance. It’s unclear if a formerly full-time employee whose hours have been cut and now is working part-time can receive partial unemployment benefits to make up the gap. The employee should apply for unemployment and see.

He also referred to IRS guidance on tax credits for required paid leave provided by small and midsize businesses. In particular, he pointed to the requirement of eligible employers to provide paid sick leave to a worker unable to work in the office or remotely because the employee is caring for a child because of COVID-19 precautions if school or daycare is unavailable. Employers must get details about such situations from the employee about who is caring for the child (worker or another adult), the age and physical condition of the child. See the IRS tax credits FAQ under Federal Action on the VBA COVID resources page.

Litigation experiences and work-arounds

With Steve Emmert, Rich Garriott and Richard Ottinger

Steve Emmert (Sykes, Bourdon, Ahern & Levy, P.C.) gave a quick review of the judicial emergency through next Sunday, April 26, in Virginia for state local and appellate courts and ongoing operations and electronic filing for federal courts in the commonwealth. Find these announcements on the VBA’s COVID-resources page under Court Resources or go to http://www.courts.state.va.us/main.htm.

VBA Past President Rich Garriott (Pender & Coward, P.C.), whose practice focuses on family law, said he’s seen a recent increase in calls from individuals wanting to amend current support. He said the clerk’s office is still taking pleadings, so motions are being filed and served.

VBA President-elect Richard Ottinger (Vandeventer Black LLP) said each state court may be handling its docket differently. In the Eastern District, judges are hearing cases aggressively using remote technology.

Caller question

One attorney asked if anyone knew whether commercial tenant evictions were permitted under the governor’s order to stay evictions. If you know of the answer, please email mshaw@vba.org, who will get the response to the member.

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