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Summary of Live Chat 14 from June 19

(The VBA thanks LPMD Chair Cliona Mary Robb for compiling this summary.)

 

The 14th COVID-19 Law Practice Live Chat on June 19 featured these speakers and topics:

  • Samantha Sedivy with Reed Smith LLP on an overview of the on an overview of the reopening process, including Phase III reopening guidelines,
  • Catherine Hill of the Virginia Board of Bar Examiners with an update on Virginia’s and other states’ bar exams,
  • C. Carter Lee with Woods Rogers PLC on legal aspects of military domestic operations from a traditional National Guard JAG, and
  • David C. Burton with Williams Mullen, who serves on the VBA Labor and Employment Law Section Council, on the proposed DOLI regulations governing employers' obligations to employees.

VBA President-elect Richard Ottinger moderated this week’s call. VBA President Alison McKee is away.

Samantha Sedivy with Reed Smith LLP on the Phase III reopening guidelines, which can take effect July 1.

On Thursday, June 18, Gov. Ralph Northam discussed the Forward Virginia Plan for the Phase III reopening during the COVID-19 pandemic. He provided no details on when Phase 3 will end or what will happen when Phase III ends, other than that we will have a new normal. (The governor announced on June 23 that Virginia will enter Phase III on Wednesday, July 1.)

Find Phase III guidelines for various business sectors under Virginia Action elsewhere on this page.

What is the same in Phase III as Phase II?

  • Safer at home will still be the theme, especially for those who are vulnerable,
  • Social distancing and teleworking are strongly encouraged, and
  • Executive Order 63, which mandates the use of facial coverings in indoor public places, will continue.
  • Private campgrounds and state parks may open.
  • Overnight summer camps remain closed.
  • For law firms, no changes. Still recommending that firms establish policies and practices for maintaining appropriate physical distancing with 6 feet between employees and other individuals visiting offices. There should be clear communication and signage for physical distancing in areas where individuals may congregate, such as lobbies or the kitchen, and the occupancy of physical spaces should be limited to ensure that physical distancing can be maintained at all times. Teleworking is still encouraged when possible. In-person, work-related gatherings, including conferences, trade shows and training, should still be limited, and enhanced cleaning and disinfection best practices should be instituted.

Some differences between Phase III and Phase II:

  • Social gatherings will be limited to 250 people, up from 50.
  • Restaurants, breweries and wineries can open with indoor dining; social distancing required, but 50% capacity restriction is dropped.
  • Entertainment and amusement locations can all open at 50% capacity, with 1,000-person maximum.
  • Fitness and exercise locations can increase capacity to 75% from 30%.
  • Personal grooming businesses no longer require appointments, but social distancing is required.
  • Childcare facilities can open to all families, not just working families.
  • Recreational sports are allowed with just social distancing. The restriction on shared equipment is dropped.
  • Swimming pools can open to larger capacity, not just for swimming or exercise.

Catherine Hill of the Virginia Board of Bar Examiners with an update on Virginia’s and other states’ bar exams

The timing and general location of the Virginia Bar exam remains the same: in July in Roanoke with the full two days (12 hours total) for the 705 individuals who have applied to sit for the exam. It has been expanded to multiple venues in Roanoke using multiple entrances and exits, distancing of six feet, all wearing masks, and temperature checks before entering the building. There is an overall caveat that this could change if circumstances warrant.

The Virginia Board of Bar Examiners considered delaying the exam until the fall, but the board did not based on projections that COVID-19 could be worse in the fall and based on the debt burden imposed on students by further delay. The board also considered using Virginia’s 8 law schools as venues, but that wasn’t feasible due to schools having to deal with logistics of returning their own students to campus. Having exams taken remotely was also considered, but that was rejected based on integrity concerns and accessibility and equity concerns for the most vulnerable populations.

Virginia is in line with most other states: 26 are conducting their bar exam in July, 14 will conduct it in September, seven will conduct it in October, and five will conduct it in both July and the fall. Only five will conduct a remote bar exam. Two jurisdictions have elected not to require an exam and allow new graduates to practice based on diploma privilege. The “no bar exam” option poses a lot of issues concerning protection of the public because some people who don't pass the exam every year. So that was not a decision the board could support in Virginia.

The board is self-funded and is having to absorb these extra costs for PPE, for nurses to take temperatures, for additional security and additional proctors among more venues and more rooms within those venues. The board has managed to get all that covered, and the Virginia Department of Health has been helpful with all this.

This approach ultimately may be repeated in February.

C. Carter Lee with Woods Rogers PLC on legal aspects of military domestic operations from a traditional National Guard JAG

Personal Background. Carter Lee is a partner at Woods Rogers: that's his day job. He also moonlights at least one weekend a month as a JAG in the Virginia National Guard. His current position is the Deputy Staff Judge Advocate at Fort Belvoir, which makes him the number two attorney for a command post that in normal situations puts him in charge of about 15,000 troops. Before he went to law school, he was an active duty officer in the 11th Armored Cavalry Regiment, and with Joint Task Forces.

Impetus for these remarks. Carter reached out to the VBA because he thought there'd be some interest, given current events, regarding the legal aspects of domestic military operations. And by that he means things like federalism issues, helping out with civil disturbances, helping out with pandemics, and whatever 2020 offers up next.

Difference between the federal troops and the National Guard. The first important thing you want to understand when thinking about domestic operations is the difference between the federal guys and those in the National Guard. The federal guys are on active duty in the Reserves. There is a difference between the Reserves and the National Guard. Active duty Reserves fall under Title 10 of the U.S. Code. That's how they always operate, and they always answer to the president. The National Guard, on the other hand, answer to the governor, for the most part, so even though the federal government often pays for the National Guard’s training, equipment, and salaries, the National Guard still answers to the governor. In return, though, the federal government gets to activate the National Guard and deploy it overseas every once in a while (lately, this is being done more often). Very rarely would the National Guard actually be federalized domestically. That would happen probably under the Insurrection Act, and Carter thinks the last time that occurred was in 1992 with the Los Angeles riots.

Parity between the president and the governors. The D.C. National Guard is unusual in that it reports to the president since there is no governor of Washington, D.C. This puts the president on equal footing with the rest of the governors as far as control of the National Guard. A couple of weeks ago, you might remember there were some problems going on in D.C. While sitting in his office, Carter thought for sure that he was going to get called up. He was looking at the rules for use of force for D.C. and at a brief at that a D.C. JAG gave him on special police powers in Washington. And then it turns out that the Virginia National Guard didn't have to do anything, because when the president approached Gov. Northam, the president had to do so as sort of an equal and not as a kind of superior/subordinate relationship. Gov. Northam declined because of unrest in Virginia and was within his rights to do that because the first mission of the National Guard is to keep the peace and tranquility in its home state. This kind of lateral federalism issue can come up in smaller examples, and often does. An active duty general can't court martial, fire or demote a Guardsman. The general is out of Carter’s chain of command.

Restrictions on use of active duty troops for domestic purposes. So why was the president asking the Virginia governor for assistance? Why didn't he just call up some active duty guys since he has plenty of those sitting around? The main reason is the Posse Comitatus Act, which says that you can't use federal troops for law enforcement activities, such as search and seizure, interdiction and arrest. Federal troops can't provide direct support to law enforcement, including crowd control. This limitation does not apply to National Guard troops, as long as they're not federalized.

What National Guard troops can do generally. Within their states, the National Guard can do whatever the governor says they can do. If the National Guard is called in to help in a sister state, it can do whatever that governor says it can do. And even when the active duty federal troops can help in certain situations like debris removal where it's not law enforcement related, there's still a lot of red tape. They're the last resort. Even in very acute emergencies like say, Carter was a commander at Fort Bragg, and there was a tornado, and Fayetteville exercised immediate response authority to go in and help for two days. The federal troops can't come in unless they're invited. So, the federal troops would have to wait for an invitation from the mayor, or the governor, and even then the troops would have to leave as soon as the mayor or governor does not need them.

Restrictions on use of force by National Guard. When the National Guard is operating domestically, it is governed by the Rules for Use of Force, which resembles the Rules of Engagement that more folks may be familiar with. Rules for Use of Force define its outer limits by state law and usually criminal law, and in particular the law of self-defense. So you can use deadly force if you have reasonable fear of immediate loss of or threat to life or limb. And within the Rules for Use of Force there are also guidelines. Such as, use only the minimal amount of force necessary and escalation of force. Say there was a soldier who is guarding a nuclear facility or Smith Mountain dam, or something like that. He saw someone approaching him, and maybe some signs would hopefully deter that. And if not, he can say something, then he can say something a little bit louder. Then he could maybe put his hands on the person. Eventually, he keeps escalating up until he reaches whatever minimum amount of force is necessary to get the job done. Sometimes that will be deadly force but that's only when absolutely necessary and the last resort.

Intelligence gathering. In domestic operations, you have to be careful about intelligence gathering activities, because you're just not supposed to do that domestically. In fact, if you have intelligence personnel, they can't even use Department of Defense assets while they're on state active duty. In theory, there are occasions where you could use satellite imagery or drones for situational awareness, but you have to get permission from someone really high up and you have to have a Purpose and Use memorandum.

Is there a difference between basic training for active duty military vs. the National Guard? Unless you're a military police officer, you're going to get no training for civil disturbances: you would only get combative training. The active duty troops do not get any specific kind of civil authority assistance training, again unless you're military police. In that limited example, there are units that are the designated domestic Support Unit, and so you will get training for crowd control and things like that. As far as liabilities go, if you're a federal troop, you'll have Federal Tort Claims Act protection. If you are a state actor, then you're going to get your normal state immunity, unless you're grossly negligent, or committing willful misconduct.

Chain of command. Let's say the National Guard has been called in to assist a local police department with crowd control. How does chain of command work? Do the top of the police department and the top National Guard unit coordinate? How does that play out in reality? Usually, there's going to be a civilian in charge who might be called incident commander. He's going to have tactical control, and he'll say, all right, thanks for this platoon. I want you to back up over here and protect the new area security over here. So my guys can be for the tip of the spear dealing with whatever needs to be dealt with. But as far as administrative control, it still stays with the military chain of command.

David C. Burton with Williams Mullen on the proposed DOLI regulations governing employers' obligations to employees

DOLI proposed regulations. Last Friday the Virginia Department of Labor and Industry (DOLI) issued an emergency temporary standard and regulations for workplaces with folks who are returning to work during this COVID-19 process. The draft regulations are about 35 pages and are very dense with 82 footnotes. The footnotes are essential for interpreting and working through these regulations.

Timing. Comments are due by June 22. DOLI will evaluate those comments and, at that point, decide whether it will postpone enactment of the regulations or implement the regulations or modify the regulations. It is possible these regulations could go into effect as early as June 24. The regulations will likely go into effect, stay in place for six months or when it is superseded by a permanent standard, whichever comes first.

Possible comments. David expects there will be some challenges or some comments on the proposed standards.

Purpose of regulations. They take an industry-specific situation and try to establish requirements for employers to control, prevent and mitigate the spread of COVID-19 to and among employees and employers. And the way they're going to do that is to have employers classify the risk for catching or spreading in four exposure risk levels: very high, high, medium, and low. Within a workplace, the employer is going to have to determine what spaces fit which level based upon the hazards of the job tasks.

Exposure risk levels. Those hazards and risks can include the job tasks, the known or suspected presence of COVID-19 or a person with COVID-19 in the workplace, and the number of employees in relation to the work area. Think about social distancing: the working distance between employees, and the duration and frequency of employee exposure through close contact with other employees in person. The employer will have to determine where the employees fall within these risk levels.

Examples. Consider a bank building with tellers who are customer-facing and interact with customers all day long. They're likely to fall into a medium category. And in that category, specific requirements have to be met. The officers of the bank who are in back offices or upstairs offices are going to fall into a low category. Employers must figure out where each group of employees fits under this under this range of options.

Implementation. As a starting point, the DOLI has said it doesn't matter what type of workplace you are, it doesn't matter if you're very high, high, medium or low, you will have to do the following things. You will have to first assess the workplace for hazards and job tasks that can potentially expose employees to COVID-19 and classify each employee into one of the exposure risk levels. The bank teller example described above illustrates that first requirement. You're also going to have to inform employees of the methods to self-monitor for signs and symptoms of COVID-19 and encourage them to do so. If you and your law firms have already been following the CDC guidance and what we've seen from the federal OSHA, you’re in good shape on that point. You will have to implement policies and procedures for employees to report when they have tested positive for COVID-19 antibodies through serologic testing, or when employees are experiencing symptoms consistent with COVID-19.

Antibody tests. Until Wednesday, it had been an open question about whether employers could engage in antibody tests. The EEOC issued guidance on Wednesday via Q&A saying that employers may not do this because the CDC’s interim guidelines do not permit that at this point. If later the CDC says it would be permissible for employers to do so, the EEOC will revisit its position in accordance with the CDC, with the guidance of the Americans with Disabilities Act.

Employees who are known or suspected to have COVID-19. All employers are going to have to make sure that employees and others known or suspected to have COVID-19 are not allowed to report or remain at work or on a worksite until they are cleared to return to work in person. You also will have to ensure that you get your sick leave policy, including having Family First Coronavirus policies in place, and that employees are aware of these policies. When the Family First Coronavirus Relief Act came out in March, the Department of Labor issued a poster that asked all employers who were covered by the FCRA to post in the workplace. If you have that post up, you have met this requirement. You also have to instruct all subcontractors and companies that provide you with contract or temporary labor that if they have any workers who are suspected or confirmed at COVID-19, those workers must stay at home. At David’s firm, that would apply to the mail rooms with copy facilities that are run by a third-party service. They have to be told that these are the obligations you have when you're working in our buildings and this is what you have to do for us. If you have an individual who has tested positive or is concerned about having COVID 19, then you have to notify without disclosing the name of an individual employee to other employees who were present on the worksite who may have come in contact with that individual.

Access to records. You have to ensure that employees have access to COVID-19 related exposure and medical records in accordance with industry-specific standards. When you go to this proposed regulation, most of those footnotes are industry specific and address what you have to do in these certain circumstances regarding the records you have to keep. So you can go if you are a manufacturer to one of those footnotes and pull up those requirements. You have to develop and implement return-to-work policies and procedures for employees who are known or suspected to have COVID-19, including asymptomatic employees, either using a symptom-based or test-based strategy on local healthcare, based upon what your local healthcare can provide you. But again, remember that with the EEOC Q&A you can't use can't do antibody testing.

Common precautions. Ensure that employees engage in social distancing, ensure that access to common areas, break areas, or lunchrooms are closed or controlled. If you have two or more people traveling together in a vehicle for purposes of work, you have to make sure that all respiratory and personal protective equipment standards applicable to your industry are upheld. You also have to honor employees who cannot socially distance in the workplace by ensuring that respiratory and other PPE standards for the industry are adhered to. If an employee cannot wear PPE, you have to handle that in accordance with federal and state standards. If he or she has made it clear that there are disability-related reasons for not being able to wear a face mask, the employer has to reasonably accommodate that. The governor's guidance of two weeks ago going into Phase 2 also has the provisions in there that if an individual cannot wear a mask, you have to live with that. All workplaces will have to adhere to standards for cleaning and disinfecting the workplace, based again on standards for your industry.

  • Very high category. This includes places of employment with high potential for employee exposure to known or suspected sources of COVID-19: combat, generally medical, postmortem or laboratory workplace. So you think about the morgue. You think about surgery, you think about all those types of workplaces. They are in the very high exposure, such as the COVID-19 ward at the hospital.
  • High category. The high exposure level are those jobs that are kept in places of employment with a high potential for COVID-19 exposure inside of six feet of known or suspected sources of COVID-19. Again, these jobs include almost all the healthcare jobs, medical transport services, first responders, and mortuaries. Now, if you are an employer who fits within the very high or high category, in addition to all those other requirements that we discussed, you're going to have to do the following. You're going to have to engage in engineering controls, such as appropriate air handling systems in healthcare environments. You have to ensure that hospitalized patients with known or suspected COVID-19 are placed in airborne infection isolation rooms. Those rooms will be available for performing aerosol generating procedures for patients that are suspected of having COVID-19 and for performing postmortem activities such as autopsies. Employers will have to install physical barriers to stop the spread COVID-19. They will also have to adopt administrative and workplace controls, including work shifts, prescreening of employees, limiting non-employee access to the workplace, and adhering to occupancy limits in any of the executive orders. They have to engage in education and training on the premises on the prevention of COVID-19. These employers will have to ensure psychological and behavioral support to address stress. They'll have to provide hand sanitizer and face coverings for people who come into the workplace who are not employees; they have to be provided with all that equipment also. Based upon your industry specific standards, provide employees with PPE. You have to develop and implement a written infectious disease plan. And you have to train employees on the requirements of the emergency regulation, and how COVID-19 can be transmitted. You also have to do training on your infectious disease and preparedness plan. Finally, you have to do training on the anti-discrimination provisions of this emergency regulations, which we'll talk about in a little bit.
  • Medium. This is for people who have more than minimal occupational contact inside of 6 feet with other employees or persons who may be infected with COVID-19, but are not known to be carriers. Specifically, the regulations set forth poultry, meat and seafood processing plants, agricultural labor, transportation services, educational settings, bars and restaurants, personal care businesses, and gym exercise facilities and spas. The example of the bank teller is likely going to fall into this category. Perhaps in your law firm, your receptionist or other folks could fit into this standard. With the medium category, there are some additional requirements, not nearly as numerous as the high or very high, but if you need to install some type of air handling system, you have to install it in accordance with the manufacturer's instructions. You may need to install physical barriers. The sneeze shields, those types of things created for avoiding COVID-19 using administrative work practice controls. You'll prescreen employees before the beginning of the work day, you'll provide face coverings for non-employees, you'll ask your employees to wear face masks when they are in situations where they cannot socially distance, or they're out in the public areas of the workplace. You may need to reconfigure places where employees can congregate by using signage, or verbal cues. You need to assess your workplace to determine if you need PPE. And if you do, you've adopted them based on your industry standard and you verify this through a written certification that a workplace Hazard Assessment has been performed, and the date the assessment was performed. And you must have the certification itself: That document has to be identified as a certification. If you have 11 or more employees, and you are a medium-risk employer, you have to develop and implement an infectious disease plan that complies with the emergency regulations, so you'll have to do a plan, like there is for the high and the very high categories with certain limitations.
  • Low. Last is the low-exposure group. Think about a lot of professional offices such as lawyers’ offices, accountants’ offices, where most people are in an office. It’s low risk if you're not going to be required to have contact within six feet of known persons or suspected persons who may be infected with COVID-19, and you're generally not going to have interactions within six feet of other persons or the general public. You may need to have floor-to-ceiling physical barriers, offices, of course, and with a reception desk, you may need to have a shield. Encourage telecommuting where possible, and you may want to stagger work shifts, have remote delivery services for the things that are being brought into your office, engage in mandatory physical distancing and require employees to wear face coverings where close contact can't be avoided.

Anti-discrimination retaliation provisions. The final thing that this regulation does is it puts into place is the anti-discrimination retaliation provisions. And what those say is an employer is prohibited from discharging or discriminating against any employee simply because the employee has exercised rights under the emergency regulation on behalf of himself or herself, or other employees. Also, you cannot discharge or any way discriminate against any employee who voluntarily provides and wears his or her own PPE. You also cannot discharge or otherwise discriminate against any employee who raises a reasonable concern about infection control related to COVID-19 with the employer, with the employer’s agent, with other employees, or with a governmental agency, or who displays such reasonable concern to the public through print, online, social or any other media. So, start parsing Facebook.

New OHSA guidance. Just yesterday OSHA issued a new Return to Work manual. When comparing this with the DOLI standard, David did not really see anything that's in incongruent between the two.

Employers are still permitted to do regular testing. In response to a question about whether employers are still allowed to do regular testing on employees, the answer is yes, as long as you maintain the confidentiality of the results. As noted above, requiring antibody testing is not permitted. Temperature checks are permitted. If you as an employer can get your hands on COVID-19 tests, you will still be permitted to do that. But you cannot do the antibody test right now unless the CDC changes its guidance.

Exemptions. In response to a question about whether any employers or employer categories are being exempted from this, David responded that almost nobody is exempted. The only employers that will be exempted from this requirement are those who are not covered by the DOLI standards by statute, which is limited to incredibly small employers with about less than five employees.

Advice for lawyers. David advises that lawyers, even though they may not be required to follow all of the DOLI guidance, consider these as best practices. There is the possibility of lawsuits by employees against employers or third parties against employers for not adhering to the best practices. Unlike ADA’s consideration of reasonable accommodations, DOLI is not interested if costs are very high or difficult for you to put in some of these protocols.

Would a whistleblower policy mitigate liability concerning anti-discrimination provisions? David addressed a question about whether the anti-discrimination provisions raise a concern about that being yet a further erosion of the Right to Work laws, and specifically if having an employer policy that requires that whistleblowers raise their complaints with the employer would either eliminate or mitigate any liability under the nondiscrimination provisions for employees who report. David noted that if the employee just goes to a governmental agency and complains and the employer says, “Well, you didn't come to me so I'm going to discipline you,” that's going to be a no-no. You can't discriminate or do this against a person who raises a reasonable concern in social media posts and things like that. But if you have a policy of the employer being here to protect you, and please bring any complaints to the employer so that the employer can try to address them before the employee airs grievances out in the world, perhaps that could help the employer in combating whether that was a reasonable concern of the employee. David cautioned that most employers are going to need to be very careful. In the context of dealing with clients this week regarding the turmoil we're having with protests, David has had clients coming to him with, “I can't believe what this guy put up on Facebook. He said, ‘Run the protesters over.’” David said employees may be talking about employers not properly adhering to these guidelines, and employers say it is harming them and the other employees. David thought it’s going to be tough for an employer to take any action against an employee. And furthermore, even if the employer thought the employer could get around the DOLI regulation, the employee action could be Protected Concerted Activity under Section 7 of the National Labor Relations Act. The employer will have to be concerned about that.

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