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Summary of Live Chat 17 from July 17

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

 

The 17th COVID-19 Law Practice Live Chat on July 17 featured these speakers and topics:

  • Jeffrey S. Palmore with Reed Smith LLP, and the VBA's legislative counsel, on the upcoming special session of the General Assembly in August,
  • Venroy K. July with Miles & Stockbridge P.C. on the law firm's just-announced Black Business & Start-Up Initiative, which aims to eliminate or temper some of the barriers that black entrepreneurs uniquely experience,,
  • Courtney M. Malveaux with Jackson Lewis P.C. on the Virginia Safety and Health Codes Board's emergency temporary standard on COVID-19 and what it means for our workplaces, and
  • Amy G. Pruett with Williams Mullen on well-being, including a breathing exercise.

Jeffrey S. Palmore on the Aug. 18 special session of the General Assembly

  • the special session could last a week or less, or it could be several weeks long
  • will address revisions to the new biennial budget adopted in March in light of the impact of COVID-19 on Virginia’s economy such as unemployment, evictions, etc.
  • may also address criminal and social justice reforms
  • the Virginia Legislative Black Caucus has issued a number of priorities dealing with holding police accountable, addressing and combating systematic racism, particularly with the law enforcement such as preventing excessive use of force by law enforcement and fighting for criminal justice reform, dealing with parole and expungement and items along those lines.
  • the Senate Democratic caucus, which holds 21 of the 40 seats in the Senate, has announced six categories on which the caucus has consensus
    1. equity in policing: prohibiting no-knock warrants, banning chokeholds and expanding authority to respond to mental health issues
    2. adding more citizen review boards
    3. more power for courts and prosecutors to do things like drop charges and expunge people's records in certain circumstances.
    4. reduced racial profiling: no searches of vehicles because they smell marijuana, no stops for expired inspections, changing from primary offenses to secondary offenses a number of activities that have led to traffic stops.
    5. equity for sentencing: dealing with jury sentencing versus court sentencing.
    6. equity in the prison system. Reinstituting good behavior credits and expanded compassionate release programs.
  • Public comment on these issues. Before Aug. 18, a number of committees that deal with these issues are having meetings and inviting public comment. If some of these resonate with you and you'd like to be involved, let Jeff Palmore or your VBA section leader know and the VBA can coordinate on the best way for you to get involved, whether it's on a personal level or on behalf of the VBA.

Venroy K. July with Miles & Stockbridge P.C. on the law firm's just-announced Black Business & Start-Up Initiative

  • created as a practical means to address social justice issues, out of a recognition that many of the issues that we are seeing stem from economic discrepancies that are borne by black communities for a variety of historical and systemic reasons
  • as a full-service law firm Miles & Stockbridge thought it had potentially a role to play after getting buy-in from all 220 attorneys at the firm, including attorneys in the Richmond and Tidewater offices, with the bandwidth to be able to provide help and service a variety of companies
  • all attorneys in the firm will get 50 essentially pro bono hours that go toward their full billable time requirements for the year, which they can use to assist black-led company startups
  • companies are eligible for the program if they are 50% or more black owned, they've been in existence for less than five years, they have fewer than 10 employees, and they make no more than $ 500,000 in revenue.
  • eligible companies get up to $20,000 worth of pro bono hours, after which the companies can transition into becoming some kind of low pro bono or full paying client.
  • most companies starting out rely on friends and family money for the first round of funding, and in black and brown communities that initial funding tends to be more scarce
  • having to pay for legal fees chips away at that money and so many companies never attempt to get off the ground, despite the fact that black women have the highest rate of entrepreneurship in emerging businesses
  • we thought let's figure out a way that we can help eliminate some of those upfront costs for these companies and allow them to get off the ground.
  • Miles & Stockbridge assistance takes a holistic approach that is not limited to organizational work. It includes reviewing organizational documents, employment help, and trademark and IP assistance. This program allows companies to get the full suite of services that the firm can provide while making sure that the attorneys are incentivized to do the work
  • the law firm has received a ton of positive feedback about the program and has heard from a lot of people who are interested in being considered for the program
  • the law firm is not looking at companies that are in the position of looking for venture capital funds. We acknowledge that our measures of success to this program are going to be making some of these companies very successful at getting follow-on funding. But the firm is also thinking about how many companies are in existence a year or two from now and how many of these companies are able to get additional bank financing
  • the program includes both nonprofits and for-profits because the initiative is geared to be holistic, and to be able to assist, as many of these companies as possible.

Question: Would you encourage referrals to the firm right now for these types of businesses? Absolutely. We ask companies to use the website MilesBBI@mslaw.com to get into the system for the intake process. Companies would go through the committee to get into the system with an engagement letter to become a full-fledged client of the firm. The firm will have an administrator reach out and get all the information that the firm needs for its intake process.

VBA President and Live Chat moderator Alison McKee applauded Venroy July and his firm for going beyond talking about these issues. She said it's a great program for VBA members to keep in mind in terms of referrals, and perhaps this will inspire other firms to implement similar programs down the road.

Courtney M. Malveaux with Jackson Lewis P.C. on the Virginia Safety and Health Codes Board's emergency temporary standard on COVID-19 and what it means for our workplaces.

The standard was approved July 15 and is expected to take effect the week of July 27 after publication.

Virginia jumps out ahead and passes a first-in-the-nation standard.

The federal Occupational Safety and Health Administration (“OSHA”) administers workplace safety and health and roughly half the states are almost deputized by OSHA to run their own OSHA program in their own state. Virginia does this via Virginia Occupational Safety and Health (VOSH), which is a major part of the Virginia Department of Labor and Industry.
Regarding the federal OSHA standards, 99% of them apply in Virginia, but for that other 1% Virginia has unique standards.
People are wondering if Virginia has become the new California with our labor and employment laws because in this case California is getting left behind with Virginia jumping out ahead and passing a unique standard covering COVID-19.

This is replacing the CDC guidelines and OSHA guidelines we have been following as the rule of thumb for compliance under what's called the General Duty clause for providing a safe workplace.

Virginia has decided to step beyond that and to implement very specific standards that incorporate much of the CDC and OSHA guidance, but also have a number of new things that exceed, or are different from, the federal guidance we've come to know during the past few months. The standards were just passed on Wednesday and have not even been published yet.

It's an emergency standard pursuant to the government emergency order that the board (on which Courtney Malveaux sits) has been working on over three months.

Within a day after publication, the standard is effective for six months, dissipating roughly around the end of January. In addition, there's a sunset in the event that the governor lifts the state of emergency.

The new emergency standard will likely be replaced with permanent standard later

This temporary emergency standard probably will be replaced by a permanent standard, with respect to infectious diseases generally, not just COVID-19. So, stay tuned. And to the extent that you have clients or stakeholders who wish to have a say in this matter, then look around, in say, October or November, to be ready to be involved in that process. Courtney Malveaux will be on the board and can advise the VBA when that process happens.

Employers exempt from the new Virginia standard

Employers exempt from the new Virginia standard (who are still covered by federal OSHA) include federal employees, some private employees who work for the federal government, and the shipyard. But generally speaking, nearly all private employees and all state and local employees fall under this new Virginia standard. Also, this may need some clarification, but Courtney Malveaux said he thinks that agriculture would not fall under the standard either. There may be a gray area like a private organization that provides custodial services in a federal building, but that is getting into the weeds.

General requirements that would apply to all covered workplaces

There is a provision that to some extent says that actual compliance with CDC and OSHA guidelines would constitute compliance with this new Virginia standard. If that sounds a little confusing, it means you're probably starting to get it. It's a question that may unfortunately have to get worked out in the court. But there's language that says that if you're actually complying with existing federal standards, that you'll be compliant with this new Virginia standard. It seems to contradict many of the specific provisions in this new Virginia standard. Malveaux counsels people to try to stick with the specific requirements in the Virginia standard that are in addition to CDC guidelines.

Virginia specific provision: flexible and non-punitive leave policies

There are provisions that would encourage employees to self-monitor for symptoms, and to report COVID-19 symptoms to employers. There are also general requirements on employer reviews, “flexible” and “non-punitive” that are typically policies with respect to employees. And those have not been defined by the board. Many of us are familiar with the Family Medical Leave Act, or with the Family First COVID-19 Recovery Act (FFCRA) and those leave policies. What exactly would be a flexible, or non-punitive, leave policy remains to be seen. Malveaux said he thinks the agency is not well equipped to enforce what basic policies should be applied in what situations. And what would be “in compliance” is an issue. If the agency believes that an employer is not working with its employees to try to use best practices in the standard, how the agency will apply it, we'll just have to see.

Virginia-specific provision: hand washing and hand sanitizer

Another interesting twist regards hand washing. Let's say you're at a construction site or you’re remote or hand washing is not as feasible. That said, you can use hand sanitizer. And many use hand sanitizer in addition to hand washing. This new Virginia standard is different in that it requires both to be available to employees at all workplaces. This may be problematic if hand sanitizer again becomes scarce. But the agency assures that it will not require hand sanitizer if it's not feasible for the employer. But, again, employers should try to make some attempt to obtain hand sanitizer if they can. If they can't, then hopefully the agency would determine it was infeasible for the employer to obtain.

Virginia-specific provision: assess the risk levels of employees

Employers are required to assess the risk levels of employees. Now there are also requirements for employers to determine if employees or visitors have been to high-risk areas first, and then showed up at their doorstep. To what extent that can actually be enforced or implemented is unclear, especially if a given employer has 50 suppliers a day coming from everywhere, both inside and outside Virginia. To what extent would that be workable? And would that have any implications for interstate commerce? But that is something that the agency has put into play in the new standard. Malveaux said he thinks that the rule of reason will come into play when citations are issued. If the employer says, ‘Look, I can't possibly know where everybody's coming from and I don't necessarily know all the levels that we have, then the agency is at least saying that it's going to try to work with employers regarding implementation of the standard. This is going to be a process.

Virginia-specific provision: notification in the building of positive COVID-19 status

Another interesting section deals with notification in the building regarding a positive COVID-19 case. Generally, OSHA law governs employers and their obligations to their employees. This actually goes beyond that. If you have multiple firms in a single building or facility, then there must be some sharing of information of COVID-19 cases among companies in the same building, as well as encouragement of subcontractors sharing with general contractors regarding cases. There's even a requirement of a building owner, whether it is an employer or not, to notify the employers who are tenants of the building of COVID-19 cases. What if somebody worked in places far away, do you necessarily need to provide this notification throughout the facility? And the ultimate answer that came out was yes, there is a requirement for the owner, and for the sharing of information throughout the facility or building.

Virginia-specific provision: notification of Virginia Department of Health

Another new significant item is that employers will have to notify the Virginia Department of Health of COVID-19 positive tests.

Virginia-specific provision: notification of Virginia Department of Labor and Industry

In addition, there's what Malveaux referred to as the “hotspot.” An employer with three or more positives within a two-week period must also notify the Department of Labor and Industry as well as Occupational Safety and Health Administration. That will be very interesting for a number of reasons. In particular, what will that do with respect to enforcement? So far, the agency has been swamped with thousands of COVID-19 complaints. It has responded not by sending its 70 inspectors to the hinterlands and to bird dog every case. They've been doing it by phone and fax, and OSHA has been doing the same from Washington, D.C. “Enforcement” has consisted of the agency saying we've had cases reported and are asking the employer what are you doing to abate or fix the hazard, and then the employer provides a response back. And then usually the agency just kind of moves along to the next one. And no inspector shows up unless it's something that is a pretty catastrophic situation. That's been the norm since March. It's been a very strange situation. Now, with the required reporting of hotspots (three cases in a two-week period), Malveaux said he thinks that the agency is going to start to show up for those. Also, information that is reported to OSHA, and citations, is public information under the Virginia Freedom of Information Act (FOIA). There typically are exceptions in terms of identifying individual health information, but the fact of having a hotspot at your workplace very well could become something that is disclosable to, perhaps, the labor and plaintiff bar or the public press. So, how this information is handled will be very interesting. There is conjecture about presuming the hotspots are work-related, giving rise to workers’ compensation and liability arising from that. Keep an eye on this. It’s not known where this is going. Employers will want to be mindful of these considerations going forward.

Virginia-specific provision: anti-retaliation

There's an anti-retaliation provision that prohibits employers from retaliating against employees. The board decided to protect social media speech about COVID-19 matters. And with social media posts sometimes they provide accurate information and sometimes they don't. That information on social media is protected.

Question: Do the agencies have sufficient manpower to start showing up now for on-site enforcement activities?

No, they don't. Malveaux used to serve as labor commissioner. A few years ago, the department had about 60 inspectors, which was increased before COVID-19 to 72. That not enough to do this. So, it will be interesting to see how they handle inspections.

Hazard levels

For all hazard assessment levels, employers will have to provide infectious disease preparedness response plans within 60 days. Malveaux got assurance from the agency that they don't necessarily have to be in writing. Also there will be training, and employers will have helpful materials from the agency for that training within 30 days of the effectiveness of the new standard. There is an exemption for medium hazard employers with 10 or fewer employees and for low hazard employers. So, the really small employers will not have to necessarily comply with these provisions. The structure of the whole thing is really built around creating obligations for employers based on the job task and hazards present, with very high, high, medium, and low categories. Very high includes mortuaries dealing with potential aerosol spread of the COVID-19, and first-line medical care professionals and first-aid responders. High includes other medical care professionals and first responders with not as much exposure: there's a high risk but it's not like you absolutely know that there's exposure all around you. Medium includes where you have high density or high population areas or high interaction between people, such as Walmart, a university, retailers, or poultry, meat and seafood processors. So, there are certain obligations on those types of employers depending on the hazard level. Low includes an office place with separate cubicle or offices from others. There are requirements for each of those levels involving training requirements and putting into place plans.

Question: Would law firms fall in the low hazard category?

Generally speaking, law firms are medium or low. Low if you don't have a lot of foot traffic coming through. If you are a plaintiff’s tort law firm that has tons of people flowing through, maybe it could be medium, but generally a law firm is going to be low. For those businesses, things like social distancing and hand washing apply. The board asked employers to consider their telecommuting practices, whether they're working second work shifts if necessary.

Virginia-specific provision: HVAC systems

And then finally, for all employers and this is very interesting, and the science is developing on the extent to which COVID can be spread throughout a building in an enclosed air-conditioned system, even if you're socially distant. The employer or owner that has control over the airflow will comply with the manufacturer's instructions and comply with certain standards.

Guidance

The agency will provide posters and materials to try to boil down the standards and help employers get through this. On its website, the agency will do its best to be helpful. Between the Virginia Manufacturers Association and Retail Merchants Association, a lot of this is unfortunately going to have to get worked out by the trade associations, because the agency will do its best but it is not really be able to convey sufficiently the requirement in a way that everyone's going to understand. Malveaux offered to make himself a resource to help employers come into compliance because you don't really want to deal with an OSHA citation: That’s not a great starting point for dealing with the standards.

VBA resource

Alison McKee observed that Malveaux has a great article he put together that summarizes a lot of this. Find it here and on the VBA covid-resources page.

Amy G. Pruett, a Virginia intellectual property lawyer at Williams Mullen and yoga teacher, on lawyer well-being.

Pruitt is a lawyer in Charlottesville who has a lot of children, and she does the balancing act on a regular basis. She has developed programs aimed at lawyer well-being, and the VBA staff distributed this morning a handout for the session. Alison McKee asked Amy to tell us about what she’s done via her YouTube series and yoga classes for busy lawyers in the hopes that lawyers can take a deep breath and work on their mental health.

Pruitt observed that a lot of stress and anxiety and confusion and uncertainty is all around. Even before the pandemic, she was practicing yoga and doing teacher training. A few years ago, she started to teach yoga to help with managing stress in the workplace and stumbled upon a 2017 report for the ABA on the lawyer well-being and decided to get involved in that effort.
The distributed slide deck contains links to resources. Lawyerwellbeing.net is a great site for a plethora of resources that we can use to really find tools for each dimension of life.

One definition of well-being is a continuous process of thriving in each dimension of life. What are the dimensions? Pruitt said there are various dimensions of life, and we as lawyers might think that that occupational side of life takes up the majority of our time and resources and energy. However, other areas also are important to consider in your total well-being, including emotional: how you're handling responses to different situations, whether there's conflict or disputes or adversarial situations that you're dealing with either externally or internally with yourself. There's the occupational, of course: how you're developing in your own career and your job. There's the intellectual side: whether you're growing and learning new tools, new things, maybe outside of the law, and other areas. And then there's the spiritual and this can also be seen as the purpose and meaning behind what you do. Also, physical elements. Anyone who works long hours in an office might start to feel the effects of sitting for long periods, so addressing physical well-being is important to really help cater to our whole body. And then there's the social element and the need for connection. This has become increasingly important, especially in this time as many are working from home, working remotely, and not able to connect in person with a lot of other peers and colleagues.

Pruitt has taken it upon herself to rephrase the term “social distancing” to “physical distancing” because that social connection is so incredibly important to cater to your social overall well-being.

The ABA held its first lawyer well-being week in May after planning for this since last summer. It suggested all kinds of activities to distribute among firms around the nation to help focus on the different dimensions of lawyer well-being. There are links on the second page of the Pruett's and 46 different activity ideas. There are also some additional activities on that lawyerwellbeing.net site.

Pruitt developed a yoga activity you can access at your own convenience, print out, and maybe distribute among employees or other attorneys. This is an opportunity to focus on the both the physical side and the realignment side, to feel connected with yourself and with others. Then, in light of the pandemic as it got closer to the planned week in the first part of May, the group started generating different activities that would be more catered to remote participation. So, there's also a guide on the site for activities you can do remotely.

You can hold meetings while walking or standing. You can talk with others about doing a remote running or jogging or 5K and planning some kind of challenge around a physical activity. You can also do a group yoga activity via video or Zoom. Then there are healthy snack recipes. You can do a sleep challenge: challenge yourself to get enough sleep each night or if you like to take naps in the day and that's available to you, maybe have a challenge around that. And then also recognizing how remembering gratitude and remembering thankfulness for the blessings in life can show an increase in positivity and optimism, especially in light of surrounding events.

Pruitt then guided those in the call in a breathing exercise that she later recorded to share on her personal well-being You Tube channel, Abunditude, where you can find additional short desk yoga activities.

Alison McKee: Amy, thank you for a good little exercise we can easily do in just five minutes at our desk, which I think is a helpful. I do want to encourage folks to visit the Abunditude YouTube channel. There are some really neat things on that and techniques that would be helpful on the well-being front. I do think that your comments about social connection are so important that I'd like to think that these calls that we have every Friday are a way for our community of lawyers here in Virginia to stay connected during these crazy times when we do have so much physical distancing.

Concluding remarks by Alison McKee: I want to thank all of our presenters again today for another great call with a lot of information that we're disseminating. I am so grateful for everyone's willingness to share their time and talents with other lawyers across the commonwealth. I think we really do have such a great community of lawyers in Virginia. I'm a native New Yorker, but I'm proud to be a Virginia lawyer and I think this call and the collaboration we've had for 17 weeks now, is indicative of the special community we have here. So thank you all again.

Just a reminder: We are not going to have a call next week because we are having the Summer Meeting on a very scaled back basis as you know at the Homestead. The reason we're having that again is to honor some contractual obligations we have with the Homestead. There will be limited in-person attendance, but you may participate in the meeting virtually. We have a number of CLE events. We have the Baliles Legacy Series program on the 100th anniversary of women's suffrage. On Thursday of next week, we’ll be doing the Summer Meeting virtually, so I encourage all of you to visit the VBA website and sign up for some of these things, if you haven't already. Once again, thank you all for joining us this morning. Have a great weekend. And we'll be back with this call in two weeks, on July 31.

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