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Summary of COVID-19 Law Practice Live Chat Part 5 from April 17

The information here does not render legal advice. It summarizes an exchange of information. Please see other disclaimers on the vba.org/covid-resources page.

Four topics were addressed on the call:

  • New order from the Supreme Court of Virginia regarding VSB dues and MCLE deadlines
  • Furloughs, layoffs and the WARN Act
  • Legislative update
  • Workplace safety, PPE and OSHA

VSB dues and MCLE deadlines

From VBA President Alison McKee (Kaufman & Canoles, P.C.), in introductory remarks

On April 14, by order of the Supreme Court of Virginia, deadlines for Virginia State Bar dues and MCLE deadlines were extended. All July 1 deadlines were moved to Sept. 30, and Oct. 31 deadlines to Dec. 31. CLE hours need to be reported no later than 4:45 p.m. Feb. 15, 2021. Find the order under Court Resources on the VBA’s COVID-Resources page.

The VBA’s Pro Bono Council is working on a webinar on eviction defense.

The VBA Domestic Relations Section is planning to begin calls next week like the weekly Friday 10 a.m. Law Practice Live Chats on issues related to the COVID-19 outbreak of interest to family law practitioners.

Furloughs, layoffs and the WARN Act

With David Burton (Williams Mullen), a member of the VBA Labor and Employment Law Section Council

Furloughs and layoffs

It’s almost like September 2008 again, with huge numbers of people filing for unemployment benefits.

For unemployment insurance under the CARES Act, whether an employee has been furloughed or laid off makes no difference. But the words have definite meanings.

Someone who is laid off has been terminated from your workplace with no expectation of coming back.

To furlough a worker means that as soon as this hiccup is over, the expectation is that the employee will be back at work. In the meantime, the worker stays on the benefits rolls of the employer. A furlough keeps the employee feeling better that being out of work may be a temporary situation and continues benefits. Employers with 50 full-time equivalent employees must provide health insurance to workers who put in at least 30 hours a week. To determine that, follow the ACA Look Back Period provision.

Layoffs and furloughs are considered an employment loss, a termination other than for cause or voluntary departure, such as retirement.

WARN Act

The WARN Act came about in the late 1980s. Corporate and transactional attorneys will be accustomed to it related to the sale of businesses.

Now it’s primarily about mass layoffs and plant closings. It requires 60 days’ advance notice of a closing or mass layoff to let the employees know it’s coming. Notice also goes to the highest person elected to a union that represents some of the workers, the locality and, in Virginia, the Virginia Employment Commission. Violators of the act are liable to each affected employee equal to back pay and benefits for the period of violation, up to 60 days.

Employers with 100 or more full- and part-time employees who have worked there more than 6 months must follow the WARN Act. The count should not include employees who have worked less than 20 hours a week for the past 6 of 12 months.

Some definitions that trigger the WARN Act:

  • A plant closing involves a single site of employment where at least 50 employees will be laid off in a 30-day period.
  • A mass layoff is 500 or more workers at a single site of employment during a 30-day period, or a layoff of 50-499 workers where the layoffs constitute 33% of the employer’s total active work force.
  • A temporary layoff of less than 6 months that meets either of the two criteria above and then extends the layoff for more than 6 months.
  • An employer that cuts work hours for 50 or more workers by 50% or more for each month in any 6-month period.

WARN Act regulations suggest an employer should look ahead and behind 90 days to determine whether separate but related events would trigger coverage.

Employers can issue a conditional notice to follow the 60-day rule.

Exceptions to the 60-day notice involve

  • faltering companies, where advance notice of a plant closing might affect its ability to seek capital or a buyer in good faith
  • unforeseeable business circumstances caused by “some sudden, dramatic and unexpected action or conditions outside the employer’s control”
  • natural disaster, “such as a flood, earthquake, drought, storm, tidal wave, or similar effects of nature.” Notice here can be given after the event. It is unknown if a pandemic would qualify for this exception.

So, what should employers do in today’s environment? The most conservative approach is to give conditional notice. A second approach is a notice as soon as practicable. If you can’t provide 60 days’ notice, employers must state the specific exception. A third approach is to delay notice until the employer has a clearer picture.

Burton said there’s a lot of discussion among the plaintiff bar about whether it is unforeseen now that the current employment situation won’t last six months. We’ll see, he said.

Asked about whether there is any “magic language” for law firms affected by job losses, Burton said layoffs are clear cut. The employee is terminated. In furloughs, the employer should be careful with the language. While the firm intends to bring the employee back within six months, if it can’t, a termination letter will follow.

Legislative update, governor’s orders

With Jeffrey Palmore (Reed Smith LLP), VBA legislative counsel

Gov. Ralph Northam extended by two weeks to May 8 his Executive Order 53 that shut down gyms, entertainment and sports venues, personal care services and other nonessential businesses where more than 10 people could congregate. Palmore said that date could be extended. The stay-at-home order is a different order (55) that encourages businesses to telework, but allows work in entities, such as law firms, provided social distancing is followed and sanitation measures are increased. That order expires June 10.

The governor also issued an order delaying the primary election by two weeks to June 23 and put a ban on elective surgeries to maintain hospital capacity.

The General Assembly regular session adjourned March 12. The governor finished his review of legislation April 11 and on April 22 the veto session will take place. The 40-member state Senate will meet in a pavilion at the Science Museum of Virginia and the 100 House members will meet outside on the Capitol grounds.

Lawmakers will debate unallotting $875 million of discretionary spending in 2021 and $1.4 billion in 2022 in light of the pandemic.

The VBA had supported efforts for new funding for clerks of state courts. Funding in the original budget now is proposed to be unallotted. Funding for one new judgeship in Fairfax also is slated for removal.

The governor also wants to delay several other budget items, including raising the minimum wage, to allow Virginia’s economy to recover from the effects of COVID-19.

A couple items from the VBA legislative agenda are to be voted on in the reconvened session and are considered very favorably, Palmore said. See the results from before the reconvened session at vba.org/2020bills.

One of the governor’s amendments to be taken up April 22 would permit public bodies to meet remotely to continue municipal business while allowing for open meetings and following safety protocols.

Palmore said to expect a special session to be called later this year to take another look at the biennial budget.   

The VBA Elder Law and Special Needs Section and the Wills, Trusts & Estates Section are looking closely at Virginia Code regarding witnesses and notaries and the challenges the Code has presented recently. This may become an issue for a special session of the legislature.

Workplace safety, PPE and OSHA

With Arlene Klinedinst (Vandeventer Black LLP), past chair of the VBA Labor and Employment Law Section

Since early March, OSHA guidance has been changing almost daily, she said. The latest is from April 13, Interim Enforcement Response Plan for OSHA offices and inspectors. The focus has been on fatalities, which may or may not have been from COVID-19 from occupational exposure. Find this OSHA memo on the covid-resources page under Federal Action.

Except for emergency responders, OSHA will not assume that a fatality is work-related. However, if 3 or 4 people in one office work area test positive for the virus, the employer probably should report the incidents. OSHA is providing a lot of leeway for employers to record, Klinedinst said.

Work-related fatalities should be called in within 8 hours of an employee dying and 24 hours of an inpatient hospitalization. An employer also must report when an employee sent home because of sickness and is hospitalized within 24 hours of exposure, if the employer believes exposure was work-related. If an employee injured on the job dies within 30 days, it also must be reported. If the employee was working at home and then became sick and is hospitalized, there’s a question as to whether the employer has an obligation to report this as work-related.

If OSHA receives a complaint about occupational COVID-19 exposure, it will send an electronic letter with notification of the complaint to the employer. The employer must respond with what action was taken and whether hazards still exist. If the employer keeps the workplace safe, there will be no inspection.

OSHA wants employers to focus on keeping the workplace safe and following all CDC guidelines.

Regarding respirators, OSHA is loosening standards because of the shortage of N95 masks. The looser standards allow certain employers to reuse masks if they continue to properly seal, have functional integrity, etc.

OSHA applies to almost every employer. What happens in the case where the employer requires a worker to use a mask and the employee declines? Klinedinst said the employer can issue a warning and if the situation isn’t resolved can escalate that to unpaid suspension from work and then to termination. The employee can be disciplined up to and including discharge.

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