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May 2022: Virginia Governor Signs VCDPA Amendment Bills into Law

Update Applicable to:
All businesses that obtain and store consumer personal data in the state of Virginia.

What happened?
On April 11, 2022, Virginia Governor Youngkin signed three Virginia Consumer Data Protection Act (VCDPA) amendments into law and will go into effect on July 1, 2022. With the signing of the bills, the VCDPA’s text is now finalized in advance of its January 1, 2023, effective date.

What are the details?
The first amendment, H 381, adds an exemption to the right to delete. Specifically, the new language states that data controllers that have obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer’s request to delete such data by either:

  1. retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer’s personal data remain deleted from the business’s records and not using such retained data for any other purpose; or
  2. opting the consumer out of the processing of such personal data for any purpose except for those exempted pursuant to the VCDPA.

The second amendment to the VCDPA, S 534, abolishes the Consumer Privacy Fund previously established by the VCDPA, and provides that “all civil penalties, expenses, and attorney fees collected pursuant to this chapter shall be paid into the state treasury and credited to the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.”

The third amendment to the VCDPA, also in S 534, redefines the phrase “nonprofit organization” to now include any political organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code.

The bill states that “political organization means a party, committee, association, fund, or other organization, whether or not incorporated, organized and operated primarily for the purpose of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any federal, state, or local public office or office in a political organization or the election of a presidential/vice-presidential elector, whether or not such individual or elector is selected, nominated, elected, or appointed.” Nonprofits that meet this new definition will not have to comply with the VCDPA.

For more information, please see the links below:

Virginia Consumer Data Protection Act (VCDPA)

H 381

S 534

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and make adjustments to their consumer data privacy policies so that they are in compliance with the law once the amendments take effect.

May 2022: Virginia Governor Realigns Overtime Requirement with Federal FLSA

Update Applicable to:
All employers in the state of Virginia

What happened?
On April 11, 2022, Governor Youngkin signed House Bill 1173 (HB 1173) into law, which will amend the Virginia Overtime Wage Act (VOWA) and reverse the overtime standards back to the federal standards.

What are the details?
On July 1, 2021, the VOWA went into effect, significantly deviating the state’s overtime pay laws from its long-standing reliance on the standards set forth in the federal Fair Labor Standards Act (FLSA).

As a result of HB 1173, Virginia will return to the overtime standards under the FLSA. HB 1173 provides that any employer who violates the state’s overtime pay requirements “shall be liable to the employee for the applicable remedies, damages, or other relief available under the FLSA.”

Although Virginia’s recent overtime amendments largely align its overtime obligations with the federal FLSA, employers should be aware of certain differences. 

  • First, the new amendments preserve employees’ private right of action under the state’s 2020 amendments to the Wage Payment Act, Va. Code § 40.1-29, which granted employees access to state courts to bring their individual or collective action claims for unpaid wages, including overtime.  This avenue is in addition to employees’ private right of action under the FLSA. 
  • Similarly, damages for overtime violations in Virginia are not necessarily limited to those available under the FLSA.  The heightened damages and penalties authorized under the Wage Payment Act remain viable for overtime violations in the Commonwealth. This includes automatically liquidated damages equal to the amount of unpaid wages and prejudgment interest at 8% per year, as well as the possibility of civil penalties of $1,000 for each violation and treble damages for “knowing” violations.
  • Unpaid overtime claims pursued under the Virginia Wage Payment Act can be commenced within three years (see Va. Code § 40.1-29(L)), as opposed to the normal two years under the FLSA (except in the case of a “willful” violation, where the FLSA similarly provides a three-year limitation period).
  • Finally, the VOWA amendments disallow the exemption for derivative carriers, available under the FLSA, in the Commonwealth.  A “derivative carrier” is a subsidiary or affiliate of an air carrier, within the meaning of Title II of the Railway Labor Act, that enjoys common ownership or control with the parent and whose employees perform work traditionally performed by airline employees.  

HB 1173 will go into effect on July 1, 2022.

For more information, please see the links below:

House Bill 1173 (HB 1173)

Fair Labor Standards Act (FLSA)

Virginia Overtime Wage Act (VOWA)

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and prepare to make immediate changes to their overtime policies to comply with the FLSA. However, employers should also be aware that some rules from VOWA still apply.

September 2021 Virginia HR Legal Updates

Virginia Issues Third Iteration of Emergency COVID-19 Regulations

Update Applicable to:

All employers in Virginia.

What happened?

On August 26, 2021, the Virginia Safety and Health Codes Board adopted revised amendments to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (the Final Permanent Standard).

What are the details?

The amended Final Permanent Standard became effective on September 8, 2021 and contains several notable changes with some detailed below. The full list can be found in the Final Permanent Standard.

Higher-risk workplaces have been re-defined with the new Final Permanent Standard. The standard defines higher-risk workplaces to include those employers with employees who are not fully vaccinated; employees whose workplace is in a location with substantial or high community transmission, regardless of vaccination status; and otherwise at-risk employees in workplaces where there is heightened risk due to factors, such as where employees who are not fully vaccinated or are otherwise at-risk:

  • are working close to one another.
  • often have prolonged closeness to coworkers or potential frequent contact with members of the public.
  • work in enclosed indoor spaces with inadequate ventilation where other coworkers or members of the public are present.
  • may be exposed to the virus through respiratory droplets or aerosols in the air.
  • engage in a common practice of sharing employer-provided transportation and communal housing or living quarters.

Vaccinations for employees is not required in the Final Permanent Standard, but additional requirements are imposed on employees who have not been fully vaccinated.  When verifying an employee’s vaccination status, the Final Permanent Standard permits an employer to rely on an employee’s representation of being fully vaccinated, without providing proof of vaccination. That said, an employer is not precluded from requiring proof of vaccination.

Subject to certain exceptions, employers must provide and require unvaccinated employees, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other personal protective equipment.

There has also been a change to the requirements for employers to implement an infectious disease preparedness and response plan. Any health care or health care support employer as well as any employers with higher-risk workplaces with 11 or more employees must have an infectious disease preparedness and response plan. When counting the employees, the employer may exclude fully vaccinated employees.

The Final Permanent Standard can be read here.

An article on the Final Permanent Standard can be read here.

What do employers need to do?

Employers should review the Final Permanent Standard and all of the updated changes and requirements to apply any updates to their applicable policies and procedures to stay in compliance with Virginia’s COVID-19 prevention.

August 2021 Virginia HR Legal Updates

Virginia’s Overtime Wage Act Amended

Update Applicable to:
All employers in Virginia.

What Happened?
On August 10, 2021, Governor Northam signed HB 7001 into law.

What are the details?
The Law amends the Virginia Overtime Wage Act (VOWA), which was effective July 1, 2021. The amendment incorporated the availability of “compensatory time” for certain public sector employees (i.e., leave in lieu of overtime wages) and clarifies that public sector volunteers are not considered “employees” covered by the VOWA.

In addition to this, the Law also restores exemptions for employees in numerous industries, including the following:

  • Certain salesmen, parts men, and mechanics primarily engaged in selling or servicing automobiles, trucks, or farm implements (i.e., the automobile salesperson exemption).
  • Certain computer employees.
  • Employees of specified amusement or recreational establishments.
  • Employees of specified religious or non-profit educational conference centers.
  • Fishery employees.
  • Certain agriculture employees.
  • Employees of newspapers that have small circulations.
  • Switchboard operators employed by … independently owned public telephone companies of a certain size.
  • Seaman employed on non-American vessels.

The law can be read here.

An article on the law can be read here.

What do employers need to do?
Employers should review the amendment here and their payroll policies to continue to stay in compliance with the amendments to the VOWA.

July 2021 Virginia HR Legal Updates

Virginia Passes Medical Cannabis Oil Use 

Update Applicable to:
All employers in Virginia. 

What happened?
On March 25, 2021, Governor Ralph Northam passes House Bill 1862 (HB1862) into law. 

What are the details?
The law, effective July 1, 2021, provides protections to employees who are using cannabis oil with a valid written certification issued by a doctor. These restrictions apply only to the medical use of cannabis oil, not medical marijuana. Employers are prohibited from discharging, disciplining, or discriminating against employees who are lawfully using the cannabis oil. 

However, employers can still take adverse action against an employee for any work impairments caused by the use of cannabis oil and prohibit possession of cannabis oil during work hours. The law also states that nothing in this provision requires employers to commit any act in violation of federal law or that would lead to the loss of a federal contract or federal funding. This may mean that federal contractors who must comply with drug-free workplace laws are exempt from this provision. The law also does not require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test. 

The law can be read here

An article covering the law can be read here. 

What do employers need to do?
Employers should review the law and information to make any relevant adjustments to their workplace policies, specifically when dealing with employees who may be using cannabis oil while working. 

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Virginia’s Recreational Cannabis Law Passes 

Update Applicable to:
All employers in Virginia. 

What happened?
On April 4, 2021, Virginia’s House and Senate Committees passed Senate Bill 1406 (SB1406) into law. 

What are the details?
Effective July 1, 2021, the law establishes the Virginia Cannabis Control Authority to legalize, tax and regulate recreational marijuana use. This also results in the expunging of all misdemeanor violations and the Virginia State Police is directed to determine which marijuana-related offenses are automatically expunged from state record by July 1, 2025. 

If a person has successfully had a felony marijuana charge expunged to be permanently erased, employers cannot then require an applicant to answer any question related to any arrest, criminal charge, conviction, or civil offense that has been expunged. Although the law does not stop employers from prohibiting marijuana in the workplace or drug testing. 

The law can be read here

An article covering the law can be read here. 

What do employers need to do?
Employers should review the law and information here to make any relevant adjustments to their workplace policies due to the updated cannabis laws. The law firm, Jackson Lewis P.C., recommends that employers should, at minimum, consider how they want to message their expectations to their workforce considering the swirling—and often contradictory—information and messages regarding cannabis use and the workplace. 

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Virginia’s Overtime Wage Act 

Update Applicable to:
All employers in Virginia. 

What happened?
On March 31, 2021, Governor Ralph Northam signed the Virginia Overtime Wage Act (VOWA) into law. 

What are the details?
VOWA (Va. Code § 40.1-29.2) will be made effective July 1, 2021 and will make significant alterations to employer’s wage and hour obligations. The bill will impact how overtime for both hourly and salary non-exempt workers are calculated. 

Hourly employees will now have their overtime rate obtained based on the VOWA’s regular rate calculation. The calculation will be the employee’s hourly rate plus other wages, such as commissions or non-discretionary bonuses paid or allocated during that same workweek, minus any applicable FLSA exclusions and divided by “the total number of hours worked in that workweek”. If the employee worked over 40 hours in the fixed workweek, then the employee must receive 1.5 times the calculated regular rate of pay for all hours worked by the employee over 40 hours. 

An example of the calculation is:

  • Regular Wages: $15 x 50 = $750
  • Wages + Bonus: $750 + $200 = $950
  • Regular Rate: $950/50 = $19/hour
  • Overtime Rate: $19 x 1.5 = $28.50/hour 

For non-exempt employees paid on a salary or other regular basis, their regular rate is defined as one-fortieth of all wages paid for the workweek, include wages, commissions, and non-discretionary bonuses. The employer would then take the employees’ wages earned that workweek, divide it by 40, and then for any hours worked by the employee over 40 in that workweek, pay 1.5 times that calculated regular rate for all overtime hours. 

An example of the calculation is:

  • Regular Rate: $1,200/40 = $30/hour
  • Overtime Rate: $30 x 1.5 = $45
  • Overtime Pay: $45 x 10 = $450 

The Act can be read here

Articles on the Act can also be read here and here. 

What do employers need to do?
Employers should review the law to be aware of the necessary requirements and make any changes to their relevant policies including pay and overtime.

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Virginia’s Reasonable Accommodation Law Enacted

Update Applicable to:
All employers in Virginia with more than five employees. 

What happened?
On February 25, 2021, Virginia’s General Assembly passed House Bill 1848 to expand protections given by the Virginia Human Rights Act (VHRA). 

What are the details?
Effective July 1, 2021, employers are required to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability if necessary to assist that person in performing a particular job. Accommodation must be provided, unless an employer can demonstrate the accommodation would impose an undue hardship. Employers will also be required to update employee handbooks with information that covers an employee’s right to reasonable accommodation for disabilities. 

Employers are required to display the notice poster in a conspicuous location on work premises. The Division of Human Rights of the Department of Law is tasked to develop a notice within 120 days of the effective date.  Employers must directly provide information about this law to new employees and any employee within 10 days of such employee providing notice to the employer that they have a disability. 

Virginia employers also will be prohibited from: 

  • Taking any adverse action against an employee who requests or uses a reasonable accommodation.
  • Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee.
  • Requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability.
  • Failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable, and if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.

If a Virginia employer wants to deny an accommodation due to an undue hardship, the employer must consider: 

  • Hardship on the conduct of the employer’s business, considering the nature of the employer’s operation, including composition and structure of the employer’s workforce.
  • Size of the facility where employment occurs.
  • Nature and costs of the accommodations needed, taking into account alternative sources of funding or technical assistance.
  • The possibility that the same accommodations may be used by another prospective employee.
  • Safety and health considerations of the person with a disability. 

The Bill can be read here

An article on the Bill can be read here. 

What do employers need to do?
Employers should review the Bill and their policies to ensure they are in compliance with providing accommodations to employees that are covered by this law.


 

June 2021 Virginia HR Legal Updates

Virginia Employee Medical Cannabis Oil Use Protections Law Passed

Update Applicable to:
All employers in Virginia

What happened?
On March 25, 2021, House Bill No. 1862 was passed.

What are the details?
The bill has been passed as of March 25, 2021, and will be effective as of July 1, 2021. This will prohibit an employer from discharging, disciplining, or discriminating against an employee based on the employee’s lawful use of cannabis oil. Employers will need to confirm if a positive marijuana test result is associated with medical cannabis oil use as the law includes cannabis oil that contains THC.

The law will not restrict an employer’s ability to prohibit possession during work hours or take any adverse employment action for work impairment caused by use of the oil. It will also not require an employer to commit any act that would cause the employer to be in violation of federal or result in the loss of federal funding or a contract.

The bill can be read here.

An article written on the act is found here and here.

What do employers need to do?
Employers should review the information provided above and update their workplace policies to ensure compliance with the new law.

May 2021 Virginia HR Legal Updates

Virginia Mandates Paid Leave for Certain Healthcare Workers

Update Applicable to:
Employers with home health workers as employees in Virginia.

What happened?
House Bill 2137 has gone into effect, requiring employers to provide paid sick leave to their home health workers.

What are the details?
Home health workers are defined as employees who, “provide personal care, respite, or companion services,” to patients enrolled in Medicaid. The bill provides that employers must offer paid sick leave to these employees. The paid sick leave will accrue at a rate of one per 30 hours worked. Any unused hours must be allowed to carry over to the following year in which it accrued. The employee may take the leave to care of their  health needs, or for a family member who is sick. Family is defined as “any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.” Employers may not retaliate against employees for using this leave. Employers may request notice beforehand of the need to use paid sick leave, within reason. However, this procedure must be provided in writing. Employees may still use paid sick leave for unforeseeable instances. Employees must provide reasonable documentation to substantiate the need for the leave if the duration is three or more days in duration.

House Bill 2137 can be found here.

What do employers need to do?
Employers should update their leave policy for the applicable employees to accommodate this new requirement.

April 2021 Virginia HR Legal Updates

Virginia Passes Overtime Legislation

Update Applicable to:
All employers operating within Virginia.

What happened?
On March 30, 2021, Governor Northam signed into law the Virginia Overtime Wage Act (HB 2063).

What are the details?
For employees paid on an hourly basis, the regular rate will be the employee’s hourly rate in addition to other wages paid or allocated to that workweek, minus any applicable federal exclusions, divided by the total number of hours worked in that workweek. For Virginia employees paid on a salary or other regular basis, however, the regular rate will be calculated as “one-fortieth of all wages paid for that workweek.”  This new standard appears to preclude employers from paying non-exempt employees a fixed salary that covers straight-time wages for hours in excess of 40 hours in a workweek, or from utilizing the “fluctuating workweek” method of calculating overtime under the FLSA, and will require the use of a higher hourly rate for calculating overtime liability for non-exempt salaried employees in many situations. 

An article covering the ramifications of this calculation change, including an example, can be found here.

What do employers need to do?
Virginia employers should update their payroll practices, to ensure that they are paying employees, especially salaried non-exempt, the correct amount of overtime pay.

February 2021 Virginia HR Legal Updates

Virginia Approves Permanent COVID-19 Safety and Health Standards

Update Applicable to:
Employers operating within the state of Virginia.

What happened?
On January 12, 2021, the Virginia Safety and Health Codes Board voted 9-4 to approve a permanent safety and health standard (Permanent Standard) requiring employers to take steps to protect workers from Coronavirus (COVID-19).

What are the details?
The Permanent Standard largely mirrors the Temporary Standard that Virginia has previously passed and continues to require employers to, among other things:

  • Group jobs into categories of high, medium, and low exposure risk;
  • Inform employees of the methods of self-monitoring for signs and symptoms of COVID-19;
  • Develop and implement policies for employees with symptoms consistent with COVID-19;
  • Provide notice to specific individuals who have had contact with infected employees;
  • Develop and implement policies and procedures for employees to return to work after testing positive for COVID-19;
  • Create a workplace infection protection program if they have job tasks with risks classified as “very high” or “high,” and/or if they have 11 or more employees with job tasks classified as “medium”;
  • Train workers on COVID-19 and its infection protection program if the employer has job tasks with risks classified as “very high” or “high”; and

Additional important changes have been made to the permanent standard:

  • Using the phrase “close contact” (defined as being within six feet of someone with COVID-19 for a total of 15 minutes or more in a day) rather than just “six feet” when discussing COVID-19 exposure.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees in the workplace within a 14-day period.
  • Changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day, to be consistent with CDC requirements.
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.
  • Explaining that Vermont Occupational Safety and Health Administration will not bring an enforcement action against employers making good faith efforts to secure personal protective equipment in short supply.
  • The Permanent Standard also requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control including increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

You can read more about the safety standard here.

The final permanent safety standard can be found here.

What do employers need to do?
Virginia employers should review the above information and linked resource to help determine the need for any changes to workplace policies.

July 2020 Virginia HR Legal Updates

Virginia Becomes First State to Implement Emergency Workplace Safety Rules Related to COVID-19

What happened?
The Virginia Department of Labor and Industry’s Safety and Health Codes Board created and approved new emergency standards to try and prevent the spread of infectious diseases.

What are the details?
Following an executive order on May 26, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board has created and finalized new rules as of July 27, 2020, for Virginia employers to follow. Some of the new rules include:

  • When multiple employees are occupying a vehicle for work purposes, the employer shall ensure compliance with respiratory protection and personal protective equipment standards applicable to its industry.
  • Where the nature of an employee’s work or the work area does not allow them to observe physical distance requirements, employers shall ensure compliance with respiratory protection and personal protective equipment standards applicable to its industry.
  • All common spaces, including bathrooms, frequently touched surfaces, and doors shall at a minimum be cleaned and disinfected at the end of each shift. All shared tools, equipment, workspaces, and vehicles shall be cleaned and disinfected prior to transfer from one employee to another.

Some entities will not be covered by these standards, such as public schools. The standards are temporary and will expire within six months or the end of the governor’s State of Emergency, or if they are replaced by permanent standards.

The full text of the standards can be found here.

Two articles discussing these changes in more depth can be found here and here.

What do employers need to do?
Employers in Virginia that are bringing employees back into the workplace should review the new standards and update their company policies to stay in compliance.

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Virginia Passes Wage Payment Act Providing New Rights to Employees

What happened?
Virginia Governor Ralph Northam approved a new bill (HB-123/SB-838) that overhauled the Virginia Wage Payment Act’s (“VWPA”) enforcement mechanisms, effective July 1, 2020.

What are the details?
The new rules applied to the VWPA will allow employees to file suit within three years of the cause of action occurring. This does not exclude them from exhausting their administrative remedies beforehand, as well. The employee may still file a claim with the Virginia Department of Labor and Industry. Any private lawsuit filed under the VWPA will also have the option of being filed individually or as a collection action, governed by the same procedures as collection actions under the FLSA. In instances where employers knowingly violate the act or show a reckless disregard for the truth of the falsity of the information (the false pay information provided to the employee), the employee may recover treble damages. Furthermore, the new law requires paystubs to include the following information:

  • The employer’s name and address;
  • The number of hours worked by the employee during the pay period;
  • The employee’s rate of pay;
  • The gross wages earned by the employee during the pay period; and
  • The amount and purpose of any deductions. The full text of HB-123 can be found here.

What do employers need to do?
Employers in Virginia should update their company payroll policies and ensure that their paystubs being issued to employees are compliant.

Summary of Laws with Upcoming Effective Dates

New Hire Reporting
Effective September 1, 2020, newly hired independent contractors must be reported according to the same requirements as newly hired employees if they have not previously had a contract with an employer or have previously entered into a contract with an employer and have received a payment based on the contract after receiving no payments for at least 60 consecutive days.

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