Virginia’s New Battle Over Minimum Wage

Virginia’s General Assembly 2022 session is now well underway, and the election result’s impacts on businesses is beginning to take shape. While the legislature has focused in large part the politically charged debates regarding parents’ rights regarding masks in schools and the need for masks during the pandemic, there have been other business-oriented bills that have advanced that are equally contentious.

For example, the prior General Assembly, which was then controlled by the Democrats, voted to increase Virginia’s minimum in January 2022 to $11 per hour and voted for subsequent increases thereafter until 2024. In this session, Republican members of the House of Delegates, which is now controlled by the Republicans, introduced a bill to freeze any minimum wage increases at the current $11 per hour figure. That bill recently passed the House of Delegates. However, the Senate, which is controlled by the Democrats, recently rejected a similar bill and are expected to reject the bill from the House of Delegates. Similarly, in another example, when the Democrats controlled both chambers they passed legislation that allowed local governments to engage in collective bargaining with local unions, which had previously been banned for government entities. The new House of Delegates has passed a measure to effectively repeal such legislative, while the state Senate has blocked such legislation. In other words, divided government is now the norm in Virginia and dramatic policy swings are unlikely.

That said, Virginia businesses still need to carefully monitor developments. The Democrats have a one seat advantage in the Senate and cannot lose a single senator for any reason because the new Republican Lieutenant Governor Winsome Earle-Sears can break any ties in favor of the Republicans. The school masking issue is advancing in the Senate because of a few democrat cross over votes.

In many ways, the current environment in Virginia mirrors the larger national environment in the U.S. Senate in which the party nominally in charge has at times found that a divided Senate means exercising control is harder than party members think it should be. Indeed, the recent stroke suffered by New Mexico U.S. Senator Ben Ray Luján is forcing capital hill leadership to rearrange votes and could impact the timing of U.S. Supreme Court confirmation hearings.

For the time being, in Virginia, changes to the minimum wage law and collective bargaining are unlikely, but the close margins in the Generally Assembly means that sickness, death, or simply disagreement from one member could change results or control on any number of issues. Businesses and citizens should therefore carefully monitor the situation in Richmond between now and the next state elections in 2023.

General Assembly Guts 2021 Overtime Wage Act

In 2021, the Virginia General Assembly passed the Virginia Overtime Wage Act which expanded the state’s overtime requirements beyond those set forth in the federal Fair Labor Standards Act. This change in law increased the statute of limitations for bringing a claim, an important change in the calculation requirements for overtime pay, and new penalties for employers that do not pay the proper amount.

However, the recent elections resulted in a new General Assembly that has undone these recent changes. During the last legislative session, the House of Delegates and the State Senate both considered and adopted identical bills that effectively repelled the 2021 law. Thirty-two senators and fifty-eight house members from both parties agreed to essentially reinstate the old law.

What’s Changed?
If signed by the Governor, a large section of Virginia Code § 4.01-29.2 that provided for the enhanced employer liability will be stricken and instead, liability will only result from violations of the federal Fair Labor Standards Act. Likewise, the provision for the three-year statute of limitations has been removed in favor of the former two-year statute, and the overtime calculations has been reset to the same as those in the federal act. In addition, the new law has restored the good faith defense that is part of federal law and functions as an escape hatch for employers that make good faith mistakes by allowing courts not to award liquidated damages or an amount that exceeds the lost wages.

Power Of Elections
While other issues such as collective bargaining and minimum wage changes were rejected by the General Assembly, the reversal of this Overtime Wage Act in such as short span of time is a testament to the power of elections. Moreover, Virginia businesses will to have to re-evaluate their business practices again in short order, and employees with lost wage claims will find pursuit of those claims harder in the future.

General Assembly Punts on Commercial Pot Sales

Divided government has sunk the chances for a regulated market to sell marijuana in the Old Dominion, at least for now. Last year when the General Assembly and the Governor’s mansion was controlled by the Democrat Party, Virginia took the historic step of legalizing marijuana. While the legalization is permanent, the mechanisms setup by the General Assembly to regulate sales, to regulate licenses, and the taxing scheme is not permanent. At the time, the General Assembly quickly pushed through legislation on a party line vote but included a reenactment clause in which the next General Assembly would have to revote on the sales and taxing structure before it could become permanent. However, since that time, Virginia elected a new Republican Governor and a Republican House of Delegates which has complicated those plans.

What’s the Hold Up?
The reenactment clause in the original marijuana legislation means that marijuana legislation is different from other recent changes that passed when the Democrats controlled the entire government. In those cases, a Democrat controlled Senate could block any attempts by Republicans to undo the law, but marijuana sales can only become regulated if all side cooperate. But that was not the end result.

While both sides have publicly stated that they wanted to move forward with legal sales, the Republican controlled House did not pass its own legislation about marijuana, and by the end of the session, decided to table the Senate’s version. Proponents of passing a bill had wanted quick passage of a bill and argued that not acting would allow a black market to form, and some opponents argued that the bill was too complicated to rush. Ultimately, no action occurred.

Legal Limbo for Pot Sales.
The upshot is that while marijuana remains legal because the reenactment clause did not apply to that side of the bill, the mechanisms for actually selling marijuana legally remain in legal limbo. Important questions such as what tax rate will apply, what tax revenues will be used for, and who will be prioritized to get dispensary licenses remain. Virginia business are now left guessing what the answers to these and a myriad of other important business issues involving marijuana until next year, unless a special legislative session is called.

Criminal Sentences Remain In Place
Gridlock also doomed a Senate Bill that would have allowed judges to reconsider the criminal sentences of individuals convicted of marijuana-only related offenses after the Senate bill died in the House Appropriations Committee. While some members of both sides of the isle have expressed support for such legislation, disputes over whether studies should occur and whether such legislation should be part of the larger marijuana bill persisted.

New Limits for Delta-8 Products
The House and Senate did come together to restrict the sale of products containing the chemical Delta-8 by redefining that chemical as marijuana. Marijuana sales can only be done through dispensaries, despite the regulatory structure not being in place. Delta-8 is a chemical that can be synthetic or natural and it is hemp and a variety of other products. The bill was passed by both chambers with overwhelming support, and if signed by the Governor, will make it illegal for non-licensed stores to sell products with high levels of Delta-8. In particular, only licensed retailers could sell products that are less than one milligram per product. Moreover, the doses that are allowed would only be allowed to sell to those that are 21 and older.

The immediate impact would be prohibiting many current retailers from selling products containing Delta-8 that are currently on shelves because of mislabeling and because they would be over the legal limit. Finally, the same bill prohibits the retail sale of marijuana products that depict or are in the shape of a human, animal, or vehicle. The intent of this provision eliminates shapes that appeal to children.

Bottom Line: It’s Complicated
The bottom line is that while marijuana remains legal in Virginia, the regulatory environment is becoming increasingly complicated. Virginia businesses and those in industries impacted by the new marijuana laws will need to continue to closely monitor legislation for at least another year in order to learn what will and what will not ultimately be allowed.

TROUBLE AHEAD AND TROUBLE BEHIND

Because There Might be “TROUBLE AHEAD AND TROUBLE BEHIND” the ADA Does Not Protect a Railroad Engineer from Having to Turn Over His Medical Records after a Positive Drug Test

On January 14, 2022 the Fourth Circuit Court of Appeals ruled that a Railroad engineer did not comply with the ADA when he did not provide employer railroad with sufficient paperwork about his positive drug test that showed signs of amphetamines and codeine, which the Engineer said he was prescribed for his bad back and ADHD. The unanimous panel found that the lower court had properly granted summary judgment to the Railroad employer who was allowed to, and indeed was required to follow the Federal Railroad Administration’s regulations in obtaining the medical records to determine if the engineer was fit to continue his employment. The Fourth Circuit stated:

[a]s to the improper medical inquiry issue, the district court concluded that Norfolk Southern’s records requests were permissible under the ADA because it had an objectively reasonable basis to believe that Coffey could not properly carry out his duties and that he posed a safety risk. Coffey v. Norfolk S. Ry. Co., No. 2:19CV509, 2021 WL 879121, at *4, 7 (E.D. Va. Feb. 5, 2021). It also noted that the requests were consistent with business necessity because Norfolk Southern was required by federal safety regulations to inquire into employees’ use of controlled substances. Id. at *5–6. As to the discrimination claim, the district court applied the McDonnell Douglas burden-shifting framework. It found that Coffey failed to make out a prima facie case because he did not show that he was disabled, id. at *8–9, nor did he provide evidence that Norfolk Southern’s legitimate, non-discriminatory reasons for terminating him were pretextual, id. at *12. Coffey now appeals the district court’s determination that the medical inquiries were proper under the ADA

At part II of the Opinion, the Court provided a lengthy discussion about the history of the railroads and the potential substantial harm, then, as well as presently, for litigation and liability were a train locomotive engineer not fit to keep the train from derailing and the like. The Court emphasized the importance of the safety regulations that were enacted to protect the public and the railroad.

Moreover, the legal regulation required that the medical records be fully provided even if the railroad did not then have a reason to believe that the Engineer could not do his job.  The railroad not only wanted the medical records but also wanted its questions addressed as to what were the side effects of the medications, was there any reaction between these medications and any other that the Engineer was taking, and whether the doctors had concluded that he could perform all of his duties if taking the medications.  Although the Engineer provided the Railroad with over 400 pages of medical documents, the specific information regarding the medications interactions and effects on his ability to do his difficult job was not addressed.  Ultimately the Court held that:

“[i]n requesting medical records from [the Engineer], Norfolk Southern was fulfilling its regulatory obligation to investigate his drug usage with due diligence. Were a failure to investigate to cause a train wreck, Norfolk Southern would be told under the unremitting glare of hindsight of all it should have done.

That being the case, it is like the Grateful Dead sing about the Engineer Casey Jones who was taking a different substance, “trouble ahead and trouble behind, and you know that notion just crossed my mind.” The Norfolk Southern was well aware of the trouble it was presented and decided that it was not required by the ADA to ignore its regulatory obligations. The Fourth Circuit unanimously agreed.

Lastly, ironically, the Engineer in this case was represented by the Casey Jones Law Firm.

How Could a Politically Divided Government Affect the Regulation of the Sale of Marijuana in Virginia?

By M. Jarrad Wright

Last year, the Commonwealth of Virginia became the first state in the deep south to legalize marijuana. While legalization was relatively easy, regulating the manufacture and sale of marijuana is proving to be more difficult. The legalization law contained various plans for government agencies, tax schemes, and permitting that is to go into effect by 2024. However, in a compromise to ensure passage of legalization, the General Assembly included language in the bill requiring a future approval of the plan after more study and consideration after the November 2021 elections. Of course, the Republican takeover of the Virginia House of Delegates and the Governor’s mansion in Richmond and a Democrat controlled state Senate means that divided government is now the norm in Virginia. How that divided government will impact the regulation of the sale of marijuana is now at the forefront of Virginia politics.

The primary question of whether the Republican House majority would attempt to repeal legalization was answered quickly after the election when House members indicated that they would not try to recriminalize marijuana, and instead, they would attempt to speed up the long-time table for setting up the regulatory mechanisms. In fact, news reports out of Richmond have indicated that lawmakers on both sides share this goal and share the goal of getting rules in place quickly to lower the chance of an illegal black market undercutting legal sales and tax revenue.

However, the devil is in the details, and the details of marijuana regulation are being fought in the General Assembly. At this time, Republican law makers have filed at least eight bills to amend the original statute in order to alter the regulatory scheme. This includes bills that would redirect marijuana sales revenue from a cannabis equity reinvestment fund to the general fund and other priorities and includes provisions that would eliminate any consideration for giving licenses based upon social or equity concerns in favor of to people living in economically distressed areas and for persons who have previously legally grown hemp. Other amendments involve the tax rate to apply to sales.

At the time of original passage, supporters of the legalization bill touted the regulatory structure as a means of correcting historical injustices on certain communities, including people disproportionately impacted by marijuana criminalization laws. However, that bill passed on party lines, and the new compensation of General Assembly, a new Republican governor, and a bill that requires reenactment before it takes effect guarantees that changes to the bills structure will occur and that new priorities may be emphasized. Ultimately, it is still early in the legislative process, and the final position of each party, and individual members, remains unknown. That said, both sides want to proceed so the chance for compromise remains. In the meantime, businesses that may be impacted by the legalized sale of marijuana should continue to monitor the legislative session as important updates are likely to occur this year.

If you have any questions or comments on this article, contact Jarrad Wright at jwright@dimuro.com.

Americans with Disabilities Act: November, 2021 Litigation Update

Title I – Employee Rights and Employer Obligations

“Regarded As” Disabled
In EEOC v. Place, the Sixth Circuit Court of Appeals emphasized that under the “regarded as” prong of the definition of disability, an employer need not regard an employee as having an impairment that substantially limits a major life activity. All that is required is that the employer perceive the employee as having an impairment and, as a result, take an adverse job action against the individual. In its decision, the appeals court found that a reasonable jury could conclude that the employer had regarded the employee as being disabled where the employee disclosed to the employer that she experienced anxiety for which she was taking medication and had a history of panic attacks, and thereafter, the employer had terminated her.

Qualified Individuals – Essential Functions
To be entitled to the protections of the ADA, an individual with a disability must be able, with or without reasonable accommodation, to perform the essential functions of the job. For most jobs, regular and predictable attendance is considered an essential function. Thus, in Weber v. BNSF Rwy. Co., the Fifth Circuit upheld the dismissal of an ADA lawsuit brought by an epileptic train dispatcher because he could not maintain regular worksite attendance. The court concluded that regular attendance was an essential function of the job even though, in the past, the employer had granted the employee “leniency” in disciplining him for missing work.

Social Security Disability
What is the impact of an individual’s application for and receipt of Social Security Disability Insurance benefits to a disabled employee’s ADA claim? In Thompson v. Gold Medal Bakery, Inc., the First Circuit affirmed the lower court’s grant of summary judgment to an employer where a former employee, who had undergone knee replacement surgery, asserted in his application for Social Security Disability that he was unable to work at the time of his discharge, and he failed to offer an explanation as to how he still could perform his former job.
Ministerial Exception

The U.S. Supreme Court has interpreted the First Amendment as insulating religious organizations from judicial scrutiny in employment cases where the courts would need to intrude into matters of religious doctrine. In Demkovich v. St. Andrew the Apostle Par., the Seventh Circuit Court of Appeals held that this First Amendment ministerial exception applies not only to hiring and firing of an employee, but also claims of harassment. In that case, a church music director asserted that a priest had harassed him based upon his weight and diabetes in violation of the ADA. In upholding the dismissal of the music director’s lawsuit, the Seventh Circuit, sitting en banc, found that adjudicating the plaintiff’s allegations would cause “civil intrusion into, and excessive entanglement with, the religious sphere.”

Reasonable Accommodation
A defining feature of the ADA is the requirement that employers reasonably accommodate disabled employees so that they can perform the essential functions of the job. Oftentimes, a reasonable accommodation is necessary because without the accommodation the employee is unable to perform the essential job functions. But, as the First Circuit Court of Appeals pointed in Bell v. O’Reilly Auto Enters., that is not always the case. An employer’s obligation to reasonably accommodate a disabled employee also may arise in those circumstances where a disabled employee has difficulty performing the essential functions of the job and requests an accommodation to make job performance easier.

Reasonable Accommodation – Hiring Another Employee
An employer’s obligation to reasonably accommodate a disabled employee does not encompass hiring another employee to perform the disable employee’s essential job functions. This principle is shown by the decision of the Fifth Circuit Court of Appeals in Thompson v. Microsoft Corp. In that case, an account technology strategist, who suffered from autism spectrum disorder, requested that other employees assist him with translating verbal information into written materials, recording meeting notes, and performing certain administrative tasks. Because this would have entailed hiring someone to work with the employee on a full-time basis, the appeals court upheld the lower court’s dismissal of the case.

Reasonable Accommodation – Creating a New Position
While reasonable accommodation may require an employer to modify a job’s non-essential functions, it does not require an employer to create a job for a disable employee. In Perdue v. Sanofi-Aventis US, LLC, the Fourth Circuit Court of Appeals followed this principle in ruling that an employer was not required to divide the workload of a single, full-time position between two employees where it would have required the employer to create a new part-time job. In that case, the plaintiff requested that her employer accommodate her mobility impairments by authorizing a part-time job share arrangement with a colleague. In upholding the dismissal of the employee’s lawsuit, the Fourth Circuit found that the requested job share arrangement, in essence, was a request to create a new position, which was beyond the employer’s legal obligations.

Shift Work
In production jobs, it often is the case that working a full shift constitutes an essential job function. If that is the case, then a request to work less than a full shift would not be a reasonable accommodation. In Thompson v. Fresh Prods., the Sixth Circuit Court of Appeals recognized this principle in upholding the dismissal of an ADA claim brought by a disable employee who worked a production job and sought part-time work. In concluding that the employer was not required to grant the employee’s request, the circuit court noted that the employee handbook stated that workers must be able to work a full shift and that the employer had provided sufficient evidence that it would be very difficult for the employer to have an employee leave the workplace in the middle of a shift given the production requirements.

Attorney Fees
The ADA provides that successful plaintiffs in a lawsuit may recover their attorney fees for pursuing the legal action when they are a prevailing party. In Reyazuddin v. Montgomery County, the Fourth Circuit considered whether a plaintiff who had sought accessible software, but which was denied by the employer, was a prevailing party. In that case, after the jury found that the employer had failed to reasonably accommodate the employee, the employer provided the employee with the software. Due to the employer’s action, the trial court denied the employee’s request for injunctive relief and declined to issue a declaratory judgment that she had been discriminated against because doing so would have been superfluous to the jury’s verdict. The trial court also declined to award the employee her attorney fees, finding that she was not a prevailing party. On appeal, the Fourth Circuit reversed, concluding that because the jury had returned its verdict prior to the County providing the accommodation, the employee was a prevailing party, and accordingly, she was entitled to attorney fees.

Title III – Public Accommodations and Commercial Facilities

Commercial Websites
The courts have taken various positions as to whether Title III of the ADA applies to the website of a commercial business. In a precedent setting case, the Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc., held that Title III does not apply to a business website irrespective of whether the business also has a physical location. The case involved a grocery store chain, which operated a website for the convenience of its customers, but did not offer any sales through the site. A long-term customer of the grocery store, who was legally blind and used screen reader software, filed a Title III action against the grocery store chain claiming that his inability to access the website with his screen reader software prevented him from filling his pharmacy prescriptions online. Although the plaintiff prevailed before the district court, the Eleventh Circuit reversed, concluding that under Title III’s plain language, “public accommodations are limited to actual, physical spaces.”

Service Animals
A public accommodation may need to accommodate a disabled individual’s service animal even though the public accommodation may have a “no pets” or “no animals” rule. In order to come within the definition of a “service animal,” the animal must be individually trained to perform tasks related to the disabled person’s disability. However, the service animal need not be formally certified as such.

Readily Achievable Accessibility
If a place of public accommodation contains barriers to individuals with disabilities the public accommodation must remove the barriers, where doing so is readily achievable. What does readily achievable mean in practice? In Whitaker v. Temple West Plaza, the U.S. District Court for the Central District of California ruled that it was not “readily achievable” for a shopping center to reduce the slope on a path of travel to the shopping center’s stores because the slopes exceeded the ADA requirements by only a few percentage points and the construction costs were over $25,000. In addition, the court noted that the construction would have eliminated parking spaces in the shopping center’s parking lot and interrupted the operation of the shopping center’s businesses. All of these costs, the court reasoned, outweighed the “nominal benefit” obtained from reducing the path of travel slope.

Gift Cards
Many businesses offer gift cards for customers to purchase. In order to comply with its ADA obligations, must the business offer gift cards in Braille for customers who have sight impairments? In Lopez v. Arby’s Franchisor, LLC, the U.S. District Court for the Southern District of New York followed the decision of other courts in holding that the ADA does not. Accordingly, the court ruled that the owner and operator of fast-food restaurants was not required to stock accessible gift cards or offer gift cards in Braille.

Accessible Dining Services
In bars and restaurants, the ADA requires that seating for disabled individuals be integrated so that they may enjoy the privileges offered by the bar or restaurant in the same manner as non-disabled patrons. In Mortland v. Local Cantina Dublin LLC, the U.S. District Court for the Southern District of Ohio ruled that where a restaurant did not provide accessible seating in the area of its bar, the restaurant violated the ADAAG requirements that five percent of a restaurant and bar’s dining services be accessible. As the court explained, “if dining and drinking is available at the bar for able bodied patrons, then disabled people are likewise entitled to full and equal enjoyment of this privilege.”

Enforcement of Title III
In order for disabled plaintiff to pursue a Title III lawsuit that a public accommodation is not accessible, the plaintiff ordinarily must demonstrate a credible or concrete plan to visit the public accommodation and partake of its goods or services in the future. In Kennedy v. Floridian Hotel, Inc., the Eleventh Circuit Court of Appeals applied this requirement in upholding the dismissal of a lawsuit brought by a plaintiff who was mobility impaired and alleged that the hotel he had visited was not accessible. In finding that the plaintiff had failed to demonstrate that he had standing to pursue his suit, the court noted that the plaintiff had visited the hotel only once for a few hours as an ADA “tester” and lacked a credible plan to return to the hotel or even to the city where it was located.

Inspection of Premises
In order to determine the degree to which a public accommodation may be inaccessible to persons with disabilities, courts have allowed a disabled plaintiff to inspect the property encompassed by the public accommodation. The courts, however, have required that any requested site inspection be relevant and proportional to the needs of the case. This principle was applied by the U.S. District Court for the Southern District of New York in Antolini v. Thurman. In that case, the court ordered a retail store to permit access by the disabled plaintiff and his expert for a site inspection to determine the extent to which there were barriers to mobility in the store.

Author
Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises : Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.

Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. Mr. Mook is a member of the Editorial Advisory Board of Bender’s Labor & Employment Bulletin and is a co-editor of the Mid-Atlantic Employment Law Letter. He is included in Best Lawyers in America (2022 ed.) for employment law.

Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. He earned his Juris Doctor from Yale Law School.

Does the ADA Apply to Cyberspace?

Title III of the Americans with Disabilities Act (“ADA”) requires all public accommodations and commercial facilities to be accessible to the disabled.  The scope of the ADA accessibility requirements extends from office buildings and manufacturing facilities to movie theaters, retail stores, and restaurants.  But what about cyberspace?

In a precedent setting ruling, the Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc., held that Title III does not apply to a business website irrespective of whether the business also has a physical location.  The case involved a grocery store chain, which operated a website for the convenience of its customers, but did not offer any sales through the site.  A long-term customer of the grocery store, who was legally blind and used screen reader software, filed a Title III action against the grocery store chain claiming that his inability to access the website with his screen reader software prevented him from filling his pharmacy prescriptions online.  Although the plaintiff prevailed before the district court, the Eleventh Circuit reversed, concluding that under Title III’s plain language, “public accommodations are limited to actual, physical spaces.”

Additional developing issues under the ADA include court decisions addressing when must a business accommodate a disabled individual’s service animal, what constitutes readily achievable barrier removal, and must businesses offer gift cards in Braille for customers with sight impairments?

A discussion of these and other Title III developments are included in DiMuroGinsberg partner, Jonathan R. Mook’s November, 2021 update to his treatise, “ADA: Public Accommodations and Commercial Facilities,” which is published by LEXIS Publishing.  If you would like a summary of the recent developments highlighted in Jonathan’s update, “Americans with Disabilities Act Title III Update,” please contact Jonathan at jmook@dimuro.com.

 

 

As Virginia Turns Red, Changes Are in Store

By: M. Jarrad Wright

Virginia’s recent governor and House of Delegates elections produced a significant victory for the Republican party as Governor-Elect Glenn Youngkin defeated former Governor Terry McAuliffe.  Equally important, Republicans are poised to regain control of the Virginia House of Delegates by a two-seat margin.  Those races recently were certified for the Republican candidates, but the fat lady still has not sung, as two Democratic Virginia delegates have requested recounts in their districts.

While that process is underway, divided government will be the norm in 2022 as the Democrats have a small majority in the State Senate, which was not up for election this year.  With the dust settling, the question for Virginia businesses, employees, and citizens is what happens next?

Uncertain Consequences

Elections have consequences.  At this moment, however, no one knows exactly what those consequences will be.  With divided government, lawmakers are going to have to work across party lines to push forward any legislation.  This could have a significant impact on the workings of next year’s General Assembly session.

For example, Virginia’s new law allowing for the sale of recreational marijuana which was enacted this year includes a clause requiring a second vote in the General Assembly in 2022 for the regulatory requirements to be put into effect.  While this vote would not roll back the legalization of marijuana, the task of finalizing the regulatory framework for sales will be left to the next year’s General Assembly.  It still is early, but news reports indicate that some Republican house members do not want to derail marijuana sales.  Rather, those members want to speed up sales that are currently scheduled to begin in January 2024 to tamper down illegal sales of pot.

That said, it is unknown that changes to the regulatory structure will occur, especially considering that current Attorney General Mark Herring was working to setup the Virginia Cannabis Control Authority.  That job will now fall to a new Attorney General, Republican Jason Miyares, with input from the newly constituted General Assembly.  All of this simply heightens the uncertainty as to whether and when Virginians can expect to legally purchase marijuana for recreational use – with all the attendant issues for employers in attempting to maintain a drug free workplace.

Revisiting Employment and Business Laws?

Immediately following the elections, Republican leaders stated that their top priorities involved schools, and they did not give specifics as to which business and employment related laws that they intend to alter.  Under the prior Democratic control of state government, Virginia dramatically changed its employment law and business statutes making them employee friendly.  For example, the applicability of covenants not to compete recently was reduced by prohibiting lower paid employees from being subject to restrictions on subsequent employment.  This, and many other recent changes to the law are likely to be revisited in the next year, assuming that Republicans maintain control of the House following the recounts and can find sufficient Democratic senators to cross the aisle.

Bottom Line

Given the present state of flux in the General Assembly, Virginia employers need to be attuned to developments in the 2022 legislative session, which begins in mid-January.  Also, now is the time to contact your state representative or senator to make your views known as to proposed changes in the law that would return Virginia to a more business friendly environment.  Time is of the essence.  Don’t wait until the General Assembly convenes on January 12, 2022.

 

Virus ADA Ruling May Prove To Be Double-Edged Sword

By: Jonathan R. Mook

Questions concerning the intersection of COVID-19 and the protections of the Americans with Disabilities Act — not least of which is the basic question of whether infection with the COVID-19 virus constitutes a disability covered by the statute — continue to play out in the courts.

The answer to that question will govern the degree to which employers will need to take into account the nondiscrimination and reasonable accommodation requirements of the statute in dealing with the continued impact of COVID-19 in the workplace.

On Sept. 16, the U.S. District Court for the Eastern District of Pennsylvania addressed the question in Matias v. Terrapin House, allowing a fired worker’s COVID-19-related disability claim to proceed.

In doing so, the court held that the plaintiff’s complaint sufficiently alleged that her former employer regarded her as disabled due to her testing positive for COVID-19.

While the court reached the correct result, practitioners should bear in mind that in addressing the elements of a “regarded as” disability claim, the court relied upon outdated case law to consider a factor that Congress eliminated in 2008 and that no longer needs to be established.

COVID-19 and the Definition of Disability
In considering the degree to which the ADA may provide legal protections to persons infected with COVID-19, it is helpful to bear in mind that the statute incorporates a three pronged definition of “disability”:

  • “A physical or mental impairment that substantially limits one or more major life activities” — the actual disability prong;
  • “A record of such an impairment” — the record of a disability prong; or
  • “Being regarded as having such an impairment” — the regarded-as disability prong.[1]

So far, court decisions indicate that being infected with the COVID-19 virus, in and of itself, is not an actual disability under the statute because it does not substantially limit a major life activity.[2]

For example, on May 10, in Champion v. Mannington Mills Inc., the U.S. District Court for the Middle District of Georgia addressed an ADA suit brought by an employee who claimed Jonathan Mook that she lost her job because of her association with her brother, who worked at the same Mannington facility. Her brother had tested positive for COVID-19 and missed several days of work when he was required to quarantine.

In dismissing the lawsuit, the court found that the plaintiff’s brother was not disabled because missing work and being unable to maintain in-person communication while subject to quarantine did not rise to the level of substantially limiting any major life activity.[3]

Therefore, her claim for association discrimination could not stand. However, the rise in the number of individuals suffering from the lingering long-term health effects of the COVID-19 virus, so-called long-haul COVID-19, may change the calculus.

It is becoming increasingly likely that courts will recognize that having severe long-haul COVID-19 can result in a substantial limitation of a person’s major life activities.

Indeed, President Joe Biden has indicated that may well be the case when, in a recent speech on the 31st anniversary of the signing of the ADA, he stated that many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain, and fatigue. These conditions can
sometimes … rise to the level of a disability.[4]

In guidance issued on Sept. 9, the U.S. Equal Employment Opportunity Commission echoed the president’s remarks by recognizing that long COVID-19 may constitute an ADA disability.[5]

Importance of Regarded-As-Disabled Prong
Importantly, demonstrating that COVID-19 substantially limits a major life activity and, hence, constitutes an actual disability under the ADA is not the only way that persons infected with COVID-19 may come within the protections of the statute.

The actions of an employer may render persons infected with the COVID-19 virus disabled within the regarded-as prong of the definition of disability.

That is because to be regarded as disabled, there is no requirement that the employer perceive the employee’s physical or mental impairment as substantially limiting a major life activity.

All the employee needs to establish is that he or she has been subjected to an action prohibited under the act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.[6]

When the ADA was initially passed in 1990, the statute contained a more restricted definition of what constitutes a regarded-as disability. Thus, under the original statute, an employer had to perceive an individual’s physical or mental impairment as substantially limiting a major life activity.[7]

That narrow definition was changed, however, by the ADA Amendments Act of 2008, which greatly expanded the scope of coverage under the statute and, in particular, the regarded as definition of disability.[8]

Thus, at the present time, where an employer takes an adverse job action against an employee due to an actual or perceived impairment, such as COVID-19, the employee will come within the regarded-as definition of disabled, unless the employer can demonstrate that the impairment is both transitory and minor.[9]

And, the employer must make this showing on an objective, not subjective, basis.[10]

Matias v. Terrapin House
How a regarded-as COVID-19 disability claim may arise can be seen in the Eastern District of Pennsylvania’s recent decision in Matias v. Terrapin House.[11]

The case was brought against Terrapin House, a residential facility for individuals with autism, by a former direct support professional, Ninoshka Matias, who claimed that she was terminated after informing Terrapin of her positive COVID-19 test results.[12]

In her suit, Matias claimed that Terrapin’s decision to terminate her was motivated by her request for COVID-19 leave, which Matias argued constituted disability discrimination.

In moving to dismiss Matias’ lawsuit, Terrapin argued, in part, that she had failed to sufficiently allege a claim for regarded-as disability discrimination because the purported disability — infection with COVID-19 — was transitory and minor.

U.S. District Judge Joseph F. Leeson Jr., however, disagreed and allowed Matias’ ADA claim for regarded-as disability discrimination to proceed.

In analyzing whether Terrapin regarded Matias as disabled, Judge Leeson looked to guidance from the U.S. Department of Health and Human Services and the U.S. Department of Justice that COVID-19 “is a physiological condition affecting one or more body systems,” and, accordingly, may be a “physical or mental impairment under the ADA.”[13]

In his opinion, Judge Leeson correctly cited to the ADAAA’s definition of a regarded-as disability as not depending upon “whether or not the impairment limits or is perceived to limit a major life activity.”[14]

Nonetheless, relying upon case law decided under the pre-ADAAA definition of disability, Judge Leeson went on to consider whether Terrapin believed that Matias’ impairment substantially limited a major life activity.[15]

In that regard, Judge Leeson noted that Matias’ complaint alleged that days before she was fired, she had “informed Terrapin that she felt like she was losing her senses of taste and smell.”[16]

As Judge Leeson explained, these are symptoms common to certain forms of COVID-19 that can carry longer-term impairment of major life function, and therefore, Judge Leeson concluded that “Matias … plausibly alleged that Terrapin regarded her as having an impairment that can substantially limit major life functions.”[17]

Judge Leeson further found that Matias had sufficiently alleged that Terrapin had taken an action prohibited by the statute — i.e., termination — because of Matias’ physical impairment, i.e., infection with COVID-19.

As Judge Leeson emphasized, Matias was terminated on a Sunday “immediately following her disclosure to Terrapin that same day that she was COVID-19 positive.”[18]

Accordingly, Judge Leeson reasoned that the immediate temporal proximity between Matias’ disclosure of her COVID-19 symptoms and her positive test result and her termination raises a strong inference that Terrapin regarded her as disabled.[19]

Is COVID-19 Transitory and Minor?
Having determined that Matias allegedly had been subjected to an action prohibited by the ADA due to her infection with COVID-19, the court next turned to Terrapin’s defense that Matias’ ADA claim still should be dismissed because her infection was transitory and minor.

As Judge Leeson explained, the ADA does not provide relief for an adverse employment action where the employer perceives the employee to have a disability that is objectively transitory and minor.[20]

To assess whether that was the case here, Judge Leeson assumed arguendo that Terrapin could establish that infection with COVID-19 is transitory, and thus, he focused on “whether COVID-19 is ‘minor’ as the term is contemplated in the ADAAA.”[21]

In arguing that it is, Terrapin contended that it could not have perceived Matias as having anything other than a minor condition.[22]

But Judge Leeson emphasized that “Terrapin’s subjective belief that Matias’ COVID-19 [positive test] result was minor does not carry its burden to establish the defense.”[23]

Rather, it is objective evidence that governs the analysis. In undertaking an objective analysis, Judge Leeson compared the hospitalization and mortality rates of the COVID-19 pandemic with those of the seasonal flu, which federal courts have viewed as being “quintessentially transitory and minor.”[24]

In making this comparison, Judge Leeson concluded that the seasonal flu “pale[s] in comparison to … COVID-19.”[25] Looking to studies and reports from the Centers for Disease Control and Prevention, Judge Leeson found:

Whereas an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic COVID-19 hospitalizations between August 1, 2020 and September 10, 2021 totaled over 2,876,000.[26]

Additionally, “[w]hen viewed from the perspective of mortality, COVID-19 proves to be more deadly than the seasonal flu.” He noted that there were an “estimated 61,000 domestic deaths due to the 2017-2018 seasonal flu, the highest recorded in the decade preceding 2020.”

Moreover, as of mid-September 2021, Judge Leeson pointed out that COVID-19 was deemed “responsible for more than 660,000 deaths in the United States.”[27]

“Accordingly,” Judge Leeson determined, “viewed objectively, COVID-19 is not ‘minor.'”[28]

Thus, the court held that Matias had sufficiently alleged that Terrapin regarded her as disabled under the ADA “when it terminated her the same day that she disclosed her positive COVID-19 test result,” and that “Terrapin fail[ed] to meet its burden to establish that COVID-19 represents a transitory and minor impairment so as to exempt it from
coverage under the ‘regarded as’ provisions” of the ADA.[29]

Lessons From Matias — and a Warning

The Matias decision serves to remind ADA practitioners that even if infection with COVID-19, in and of itself, may not rise to the level of an actual disability, if an employer takes an adverse job action against an employee after testing positive for COVID-19, that employee could well have a regarded-as disability claim.

Moreover, Judge Leeson’s opinion sets forth a solid factual basis as to why COVID-19 is not a minor impairment, even if it may be transitory. It is likely, therefore, that the opinion will be cited as persuasive authority by plaintiffs’ counsel who are pursuing COVID-19 regarded-as disability discrimination lawsuits. Nonetheless, citation to Matias may be a double-edged sword.

That’s because the opinion erroneously cites to, and relies upon, case law interpreting the narrow, superseded definition of being regarded as disabled, which requires a plaintiff additionally to show that his or her actual or perceived impairment was viewed by the employer as substantially limiting a major life activity. In short, Matias is a case where the court reached the correct result, but in doing so, made some missteps as to the proper interpretation of the law.

Accordingly, any citation to Matias should be done with care, recognizing that the court’s
citation to, and reliance upon, case law addressing the original version of the ADA no longer
is good law.

Virginia enacts enhanced protections for disabled employees

By: Jonathan R. Mook

Since the 1980s, Virginia has prohibited employment discrimination against disabled workers under the Virginians with Disabilities Act (VDA). Accordingly, it’s understandable many employers in the state may have overlooked critical amendments to the Virginia Human Rights Act (VHRA) enacted by the legislature this year and signed into law by Governor Ralph Northam. The amendments, which took effect on July 1, give additional legal protections to persons with disabilities and provide stronger remedies to those who have been discriminated against.

New accommodation requirements

As was the case under prior Virginia law, employers with five or more workers must provide reasonable accommodations to disabled employees unless doing so would create an undue hardship. The new legislation, however, imposes specific requirements on employers in reasonably accommodating employees, which weren’t previously included in the VDA.

You now have an affirmative obligation to engage in a “timely, good-faith interactive process” with disabled employees who request a reasonable accommodation. And you may not require them to take unpaid leave as an accommodation if another reasonable solution is available.

Undue hardship analysis

In determining whether an accommodation creates an undue hardship, the new amendments to the VHRA specifically state you should consider:

  • Nature of the operation and size of the facility;
  • Proposed accommodation’s cost;
  • Possibility the same accommodations may be used by other employees; and
  • Safety and health issues.

Additionally, there is now no dollar limitation on how much you may need to spend to provide a required reasonable accommodation. The legislature eliminated the former rebuttable presumption that any accommodation exceeding $500 imposed an undue burden on employers with fewer than 50 employees.

Posting requirements

The new legislation further requires you to post information about the rights of employees with disabilities in a conspicuous location at the worksite and in any employee handbook.

The information also must be provided to new employees when they start their jobs and to any employee within 10 days after she informs you she has a disability.

Enhanced remedies

Finally, should you fail to follow the requirements of the new legislation, employees with disabilities now have greatly enhanced remedies. If they believe they have been discriminated against in violation of the statute, they will first need to file with the Virginia Office of Civil Rights. But upon the issuance of a right-to-sue notice, they may file a lawsuit in state court and request a jury trial.

Moreover, if you are found to have violated the statute, you may be liable for compensatory damages (without any limitation on the amount), back pay, attorneys’ fees, and other relief.

In many ways, the new Virginia protections for employees with disabilities are greater than afforded by the federal Americans with Disabilities Act (ADA). Hence, in the future, employers charged with violating a disabled employee’s rights will likely have the case litigated in state court before a jury, with the employer facing the possibility of unlimited damage awards.

Bottom line

It’s critically important for Virginia employers to become familiar with your obligations under the new amendments to the VHRA protecting individuals with disabilities. Make sure to provide your employees with notice of the new law’s provisions. Also remember to engage with an employee with a disability who requests a reasonable accommodation. That way, if any questions arise later, you can document the steps you took to comply with your statutory obligations.

Given the enhanced remedies available to employees under the new VHRA amendments, you are well advised to consult with experienced employment counsel to ensure you are fully complying with the new Virginia protections for individuals with disabilities. You don’t want to discover you haven’t been adhering to the new law’s requirements only after a discrimination charge or a lawsuit has been filed.

Jonathan R. Mook is an attorney with DiMuroGinsberg, P.C. in Alexandria, Virginia. You can reach him at jmook@dimuro.com.