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Summary of Live Chat 7 from May 1

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:

  • Workplace Safety, OSHA and VOSH compliance – Courtney Malveaux
  • Discipline and Termination of Employment – Broderick Dunn
  • Bankruptcies – Jeremy Williams
  • Healthcare – Brac McKee

Workplace Safety, OSHA and VOSH compliance – Courtney Malveaux (Jackson Lewis P.C.)

Most Virginia businesses fall under Virginia Occupational Safety and Health (VOSH) rules or both the federal Occupational Safety and Health Administration (OSHA) and VOSH. As to how the laws are administered have a lot to do with how your business or your client’s business is regarded. Relationships matter.

How do you record and report incidences? In workplaces of higher hazard must log illnesses and injuries. Law offices don’t fall under this area.

To record an illness, it must be work-related. At first, the employer needed to determine what is work-related. Now the vast bulk don’t have to make this determination. The exceptions are correctional centers, emergency responders and law enforcement officers.

There have been tons of complaints to OSHA, thousands of responses, which are too numerous for OSHA to reply.

For reporting, employers within 24 hours need to alert to a hospitalization or fatality. OSHA uses analysis reporting/recording. It sends the employer a letter basically asking for the blanks to be filled in on what practices the employer is using to reduce incidences of illness or death. Malveaux said he prefers to send his own letter in response to help build stronger relationships. The letter also allows him to go deeper into the workplace response.

OSHA expects the employer to create an infectious disease identification program and to isolate all infectious individuals and address all hazards. With low-risk employers, the administrative policy states what the employer and employee must do is sufficient. With higher hazard industries, the response may be screens between stations, improved ventilation and other physical or engineered items.

The General Duty Clause is a catchall. It requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to workers.

For instance, employers in lower risk fields should talk to employees about no need to have N95 masks in many places, or respirators. Cloth masks often are sufficient to prevent the spread to others. This is especially true with the shortage of PPE the United States experienced. In other instances, repeated use of masks is allowed provided the mask meets the fit test around the face. We should save PPE for high hazard workplaces. Some employees who, for religious reasons, must have facial hair, can be accommodated with looser-fit masks.

VBA President Alison McKee asked about law offices where an employee refuses to wear a face mask when the office requires employees moving around the office to wear face masks. Malveaux said this is where the firm’s policy is your friend. Set out rules without favor to anyone and consequences for violations.

Employers, he said, must minimize worker contact, encourage telework. In offices that remain open, employer must ensure deep cleaning and encourage good hygiene practices among employees. These are probably here to stay.

A participant asked about notifying employees of illnesses or deaths, or allegations of those. Yes, employers must post a notification. Malveaux said sometime the water cooler talk is not accurate. The posting is a great opportunity to engage employees and to put your story up there. Communicate with employees your diligence in protecting their safety.

Discipline and Termination of Employment – Broderick Dunn (Cook Craig & Francuzenko, PLLC)

So, what happens when we begin to reopen and ease restrictions and the employee doesn’t want to comply? There is no general right not to return to work. The employer must look at why the worker refuses to come back.
If attendance is an important part of the job, the employer must spell that out, that attendance is an essential function, in its workplace policy.

What about if the employee doesn’t have childcare because daycares are closed and feels he or she can’t come to work? At employers with 500 or fewer employees, if the worker can do any part of the job at home, he or she should be able to telework. If not, these workers can take family leave or PTO.

If the refusing workers does not consider the workplace as safe, the employer needs to ask why. The workers can be invited to take leave, but the ADA requires the employer to provide some accommodation if the workers are disabled.

If the employer didn’t get a PPP loan and the worker had been furloughed and was receiving unemployment compensation, refusal to return to work might disqualify them from receiving unemployment.

Dunn said he believes that in the COVID-19 world, employers will see more ADA requests for accommodation in the workplace to address issues related to returning to the office. Employers can jumpstart those conversations now.

On April 23, the EEOC said employees with disabilities need accommodation when the office reopens. For instance, law office support staff who worked in cubicles before COVID-19, may not return to where they used to work because of social distancing guidelines. Perhaps an employee had a pre-existing mental health condition before COVID-19 that is worse now. You absolutely must accommodate.

One thing many employers are not aware of, beginning July 1, 2020, the Virginia Values Act takes effect. It broadens anti-discrimination protections for sexual orientation and gender identity, including at workplaces. Claims of discrimination will be able to be filed in state courts with no summary judgment. See SB 868/Acts of Assembly Chapter 1140.

The General Assembly also passed HB 798/Acts of Assembly Chapter 1136  protecting whistle-blowers. Employers, come July 1, 2020, can’t retaliate against any employee cause of action regarding complaints to a supervisor, government agency or law enforcements about workplace violations of state or federal law. “A person who alleges a violation of this chapter may bring a civil action seeking injunctive relief, reinstatement, and compensation for lost wages, benefits, and other remuneration.” The statute of limitations is one year.

Bankruptcies – Jeremy Williams (Kutak Rock LLP)

This point in the economic cycle is a favorite of bankruptcy attorneys, he said. Some are coming out of retirement.

In February 2020 – not specific to COVID-19 – the Small Business Reorganization Act went into effect for Chapter 11 reorganizations to make them less costly and easier, and for owners to retain control of their operations. The new subchapter V provides for the appointment of a trustee to oversee the reorganization. Small businesses can repay the debt in 3-5 years. The debtor has a lot of authority and power because subchapter V generally omits the creation of a committee of creditors, whose professionals are paid by the debtor. Creditors do not have a lot of say because only the debtor files a plan of reorganization.

The act eliminates the Absolute Priority Rule, which removes a debtor’s ownership interest in assets if all creditor claims are not paid in full.

This subchapter addresses small businesses with $2.7 million in debt. The CARES Act, in response to the pandemic, has raised that to $7.5 million.

Furthermore, Subchapter V now permits modification of business loans secured by a debtor’s principal residence.

The Paycheck Protection Program under the CARES Act is not allowed for businesses in bankruptcy protection. The PPP is not obligated to finance businesses in bankruptcy.

For individuals filing Chapter 13 bankruptcy (reorganization), where a plan sets out paying back some or all creditors over 3 to 5 years, the CARES Act allows for an extended repayment plan to up to 7 years. However, timing is important. A Chapter 13 plan must be confirmed before the enactment date of the CARES Act and the request must be made before the CARES Act expires.

Additionally, the CARES Act stimulus checks of $1,200 per individual or $2,400 per married couple filing jointly, with additional $500 for each qualifying child under age 17, does not need to be included in calculations of current monthly and disposable income. So that provides a little extra relief. See this Justice Department document.

Bankruptcies, because courts have been closed (we still have drop boxes and e-filing). We’re going to see lots of filings in the coming weeks and months, he said, including four mega filings in the next 60 days in Richmond from retailers that are closed now, such as Pier 1.

Businesses, Williams counseled, must follow their accounts receivable very closely during this time.

Healthcare – Brac McKee (Kaufman & Canoles, P.C.)

The CARES Act included $175 billion in Provider Relief Funds for hospitals and healthcare providers on the front lines of the coronavirus response.

One hundred billion dollars was allocated based on providers’ share of net patient revenue in the most recent tax year to assist providers who bill Medicare fee-for-service. It arrived April 10 in the provider’s bank account. The Department of Health and Human Services offers 10 pages of guidance on how hospitals can use the money, which is only for COVID-19 expenses. Hospitals must track every dollar in the account.

Dentists don’t generally bill Medicare, so in particular they should keep the money in a separate account and track their financials closely.

To keep the funds, providers must agree to terms and conditions. Non-compliance may result in recoupment of some or all funds.

Do affiliation rules in managed large healthcare disqualify you from these funds? What about liquidity. Must you certify that you have no access to liquid funds to get through the time of closure? They’re waiting for guidance and have a lot of questions.

For COVID patients not covered by insurance, providers can’t balance bill them.

It’s a minefield out there.

Anyone receiving over $2 million will be audited.

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