Virginia Poised to be First in the South to Enact LGBTQ Protections

By:  Jayna Genti

While the Supreme Court is still considering whether Title VII of the 1964 Civil Rights Act applies to lesbian, gay, bisexual, and transgender employees across the nation, the Virginia legislature has moved forward to provide legal protections under state law for this group of Virginians.

By doing so, Virginia will become the first state in the South to enact comprehensive anti-discrimination legislation protecting LGBTQ individuals.  The Virginia Values Act would prohibit discrimination on the basis of sexual orientation and gender identity in housing, employment, credit transactions, and public accommodations.  The legislation also prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran – some of which already find protection under existing state law.

Who is Affected by the New Law?

The Act affects private employers with six or more employees.  All state and local government employees and school board employees also will be covered under the law.  In addition to prohibiting LGBTQ discrimination, the Act will allow individuals to pursue lawsuits over alleged discrimination.  Those entities “engaged in a pattern or practice of resistance” to the rights guaranteed by the new law also will be subject to suit by the Virginia attorney general’s office.

Importantly, the Virginia Values Act amends the state’s Human Rights Act to allow suits for unlawful discrimination in public accommodations, such as movie theaters, hotels and motels, and other commercial establishments open to the public.  Under current law, there is no cause of action for discrimination in public accommodations.

When the Law Will Take Effect

The Act has strong bipartisan support, and is expected to make it through both the House of Delegates and the Senate before the current regular legislative session adjourns on March 7, 2020.  Governor Ralph Northam has publicly supported the legislation: “It’s past time we protected LGBTQ Virginians from discrimination under the law. This bill will make us stronger and more inclusive of all — I’m proud to support it.”  Thus, Governor Northam is expected to sign the Virginia Values Act within a week after being presented to him.  The new law will take effect July 1, 2020.

Significance of the New Law

Advocates have praised the passage of what they called urgently needed landmark human rights legislation.  “It’s important to know that discrimination is still happening in Virginia. It is time to drive it out,” bill sponsor Senator Adam Ebbin said at a press conference.

Some of Virginia’s largest employers, including Capital One, Dominion Energy and Verizon, also have backed the legislation.  “Passing a comprehensive nondiscrimination law isn’t just the right thing to do – it’s crucial to the state economy,” those companies and more than two dozen others wrote in a letter to legislative leaders. “Because many LGBTQ and non-LGBTQ workers prefer to live and work in communities with nondiscrimination protections,” the companies said, “such a law will give Virginia’s employers tangible advantages in recruitment and retention.”

Opponents have raised concerns about the legislation’s potential impacts on religious freedom.  GOP Senator Jill Vogel, however, said she thought provisions of the Act sufficiently addressed concerns about religious liberty and that she was proud to vote for it.  “I can assure you that if we embrace equality and protect everybody equally under the law, we will be a better community,” Ms. Vogel said as she voiced her support on the floor of the Virginia Senate.

Steps for Compliance

At this point, there are two steps that you can take to be prepared for the new legal protections for LGBTQ employees.  First, review your non-discrimination policies to see whether they state that discrimination on the basis of a person’s LGBTQ status is strictly prohibited.  If you are a federal contractor, you already may have such a policy in place as part of your contract obligations.  If not, it probably is wise to consult with experienced employment counsel to assist you in drafting a policy that complies with the new Virginia law.

Second, conduct training sessions for your supervisors and managers to alert them to their legal obligations to ensure that no adverse action is taken against an employee on the basis of that individual’s LGBTQ status and that the work environment is free of jokes, comments, or other actions that could constitute harassment against LGBTQ workers.  Remember, come July 1st, harassment on the basis of LGBTQ status will be just as illegal under state law as sex or racial harassment.  To underscore the seriousness of the issue, you may want to have your employment attorney conduct the training with you.

It always is best to be prepared well ahead of time for any change in the law, and this especially is true when dealing with this fast evolving area of legal rights for LGBTQ individuals.

DGRead 20.08.15

What HR Can Do if an Employee Is Afraid to Return to Work Post COVID-19; Rocket Docket Update; Virginia Enacts Standards to Protect Workers from COVID-19 Exposure; DG/30 Milestone

Virginia Enacts Standards to Protect Workers from COVID-19 Exposure

By:  Jayna Genti

Virginia is now the first state in the nation to enact mandatory workplace safety rules to prevent the spread of COVID-19.  The Emergency Temporary Standard (“ETS”) for Infectious Disease Prevention took effect July 27, 2020.  The new standard covers most private employers in Virginia, as well as all state and local employees, and will be enforced by Virginia Occupational Safety and Health (“VOSH”). Employers that fail to comply with the new rules face fines of up to $13,494 for a “serious” violation and up to $134,937 for a “repeat” or “willful” violation.

Scope and Approach of the New Rules

The new temporary standards mandate that workers be provided with personal protective equipment and sets parameters for businesses to sanitize their worksites, enforce social distancing protocols, and implement infectious disease preparedness and response plans.

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Gov. Ralph Northam said. “In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements. Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it’s key to our economic recovery and it’s the right thing to do.”

The ETS takes a layered approach to employee protection depending on each job’s exposure risk level and includes:

  • Minimum requirements that apply to all employers;
  • Enhanced requirements for employees in “medium” exposure risk jobs, such as commercial transportation, daycare, restaurants and bars, grocery stores, factories, construction, retail, salons, dentist offices, and gyms; and
  • Enhanced requirements for employees in “very high” or “high” exposure risk jobs, such as in laboratory or medical settings involving known or suspected COVID-19 patients or employees who provide healthcare or first responder services involving known or suspected COVID-19 patients.

Office Environments

Most office work environments will fall under the category of “lower” exposure risk since employees can avoid contact within six feet of persons known or suspected of having COVID-19.   In such an environment, employees should be able to achieve minimal contact by, for example, telecommuting, staggered work shifts, remote service delivery, floor-to-ceiling physical barriers (such as clear plastic walls at convenience stores behind which only one employee is working at any one time), or other forms of mandatory physical distancing of employees.

Face coverings are required when it is necessary for an employee to have brief contact with others inside the six feet distance, but face coverings are not a substitute for the other means of achieving minimal occupational contact.

Mandatory Requirements for All Virginia Employers

All employers now are required to take precautions to prevent the spread of COVID-19.

These include:

  • Assessing hazard levels of all job tasks and classifying each according to the standards outlined above from “very high” to “lower” exposure risk.
  • Providing information to employees on the hazards and characteristics of COVID-19 and the measures to minimize exposure and self-monitor for symptoms. (The Department of Labor and Industry is developing an information sheet that employers may use.)
  • Requiring social distancing or, when not possible, the wearing of face masks.
  • Closing common areas and breakrooms, or, if not possible, tightly controlling access to these areas to ensure physical distancing and requiring employees to disinfect the immediate area in which they were located prior to leaving or at regular intervals throughout the day.
  • Cleaning and disinfecting commonly used areas and equipment and providing frequent access to hand washing or hand sanitizer.
  • Ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Establishing a system to receive reports of positive COVID-19 tests by any employee or contractor present at the work site within 14 days from the date of the positive test. Within 24 hours of when a positive test report is received, employers must notify (while keeping identities confidential) all employees who may have been exposed; other employers whose employees may have been exposed; the building or facility owner (so that it may sanitize the common areas and notify tenants of the location of the case); and the Virginia Department of Health.  Employers are not required to conduct contact tracing, however.
  • Notifying VOSH of three or more positive COVID-19 tests within a two-week period.
  • Prohibiting employees who are known or suspected to be positive for COVID-19 from remaining at or returning to work or a customer or client location for at least 10 days after symptom onset and three days after symptoms pass, or after the employee receives two consecutive negative tests at least 24 hours apart, provided they are not antibody tests, which are considered less reliable.

Higher Risk Jobs

            Additional requirements apply to jobs classified as medium exposure risks and high or very high exposure risks.  The requirements include prescreening of employees and contractors for COVID-19 symptoms before entering the worksite, telework, staggered shifts, physical barriers, and air handling system requirements where appropriate.  In addition, these employers must provide training on the hazards and characteristics of the COVID-19 disease to all employees working at the place of employment regardless of employee risk classification.

With job tasks classified as high or very high (or as medium with 11 or more employees), employers further must develop and implement a written infectious disease preparedness and response plan.

Effective Dates and Expiration

The ETS took effect on July 27, 2020.  Employers, however, have an additional 30 or 60-day window to implement some of the training and planning requirements.  There is a 30-day window to implemented most of the employee training requirements, and a 60-day window for certain workplaces to establish written infectious disease preparedness and response plans and undertake training related to such plans.

The ETS will remain in place for six months or until the Governor’s COVID-19 State of Emergency expires or the temporary standards are replaced by the enactment of permanent standards, whichever occurs first.

What Else Employers Should Know

Finally, the ETS gives legal protections to workers who raise reasonable concerns about infection control to their employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social or any other media.  The ETS also prohibits employers from discharging or discriminating against a worker because the employee exercised rights under the standard or “blew the whistle” on violations of the standard.

Employers must allow employees to wear their own personal protective equipment, including a respirator, face shield, gloves, or face covering if the equipment is not already provided by the employer and it does not create a greater hazard to the employee or create a serious hazard for other employees. Additionally, nothing in the standard limits an employee from refusing to perform work or to enter a location that the employee feels is unsafe.

*  *  *  *

Virginia employers who are unsure about compliance with these new rules should consult with experienced Virginia employment counsel to learn how to best conform their business practices to the new standard.  Should you have any questions about these new requirements for Virginia employers, DiMuroGinsberg’s employment law attorneys are here to help.

DGRead 20.08.01

DC Bar CLE: The ABCs of the ADA; Virginia Pregnancy Protections in the Workplace: What You Need to Know; Payroll Protection Plan Fraud Follow-Up; DG/30 Milestone

Payroll Protection Plan Fraud Follow-Up

By M. Jarrad Wright

The U.S. Department of Justice (“DOJ”) has begun to shift its response to the COVID-19 crisis away from price gauging cases to financial crimes – namely attempts to defraud the federal government’s various relief programs, including the Payroll Protection Plan (“PPP”) which was established as part of the larger Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).  While the CARES Act and PPP provided billions of dollars of economic stimulus and relief to millions of people throughout the country, the relative speed of the programs and the large amounts of dollars involved made such programs targets for fraudulent claims.

In an attempt to identify such claims, the DOJ recently announced that it is using data analytics technology to help identify and investigate individuals and businesses who have made false statements to defraud the government and/or banks. The DOJ has charged fraud cases in several cases around the country involving PPP fraud. These cases include a Texas man who allegedly sought millions of dollars in PPP loans by certifying that he had a business of 250 employees when allegedly no employees worked for his business. In another case, an Arkansas man was alleged to have sought approximately $8 million in PPP loans from multiple banks by providing fraudulent payroll documentation.

While cases involving millions of dollars are headline grabbing, it should be noted that the DOJ has begun looking into cases involving smaller dollar figures. For example, on June 16, 2020, the DOJ charged an Illinois man for allegedly submitting false and fabricated IRS forms and other documents that allegedly overstated payroll amounts in order to obtain a loan of approximately $441,000. According to the DOJ, a comparison between the IRS forms submitted to the bank for the PPP loan and the actual forms at the IRS showed significant differences.

The PPP loan applications require companies and individual to make a variety of certifications such as certifying need for the loan monies but also require presenting significant documentation. While the Small Business Association stated that loans in amounts of less than $2 million “will be deemed to have made the required certification concerning the necessity of the loan request in good faith,” the government investigators are going to continue to pursue other potential sources of fraud including false documentation.

In the weeks and months ahead, the DOJ is likely to continue to investigate such fraudulent cases and then begin to shift its focus into more complex financial fraud cases and more complex violations of certifications made in the PPP loan process. These cases are likely to arise in a variety of contexts and may arise in a variety of ways including referrals from banks, the SBA, even qui tam relaters under the False Claims Act or through the DOJ’s data analytics. Business involved in such cases will likely be faces charges ranging from bank fraud to wire fraud, as well as significant civil liability exposure.

‘sDiMuroGinsberg has years of experience involving complex criminal and civil litigation.  This includes defending people accused of healthcare fraud and pursuing False Claims Act cases.  DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.


Virginia Pregnancy Protections in the Workplace: What You Need to Know

By: Zachary Deubler

During its 2020 legislative session, the Virginia General Assembly passed a slew of measures providing your employees new and expended workplace protections, while also enhancing the mechanisms by which employees may seek to bring claims against their employers for violating the newly enacted laws. As we discussed at our June 2, 2020 Webinar, these new measures included new protections for LGQBT workers, prohibiting non-competes for “low-wage” workers, and significant increases in Virginia’s minimum wage.


Easily lost in these new sweeping measures are the recently strengthened prohibitions on discrimination in the workplace based on pregnancy and pregnancy-related conditions. The Virginia Human Rights Act, similar to Federal law, has long prohibited terminating employees on the basis of pregnancy and “childbirth or related medical conditions.” However, the new legislation known as the Virginia Values Act (VVA) goes much further and creates a private cause of action for discrimination related to these conditions and requires accommodations akin to the process under the federal Americans with Disabilities Act (ADA).


Who Is Covered by the VVA and Employee’s Right to Sue?


The VVA applies to all employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.


The VVA grants employees an independent right to sue their employers in state court for discrimination or failure to reasonably accommodate their pregnancy or pregnancy related conditions. For example, an employer that refuses to allow an employee who has been on maternity leave to return to her previous/equivalent position with equal seniority, pay, and other benefits may be found to have engaged in an “adverse action” against the employee.


The statute of limitations for filing a lawsuit alleging a violation of the VVA is two years from the date of the unlawful act.  Alternatively, if the employee files a charge of pregnancy discrimination with the Virginia Human Rights Commission or a local human rights agency within two years, the employee can file a lawsuit within 90 days from the final disposition of the charge.  Relief may include: up to one full year of back pay, compensatory damages, attorney’s fees, and injunctive relief.


What Are The New Reasonable Accommodations?


The VVA defines “reasonable accommodations” as including:


  • frequent or longer bathroom breaks,
  • breaks to express breast milk and access to a private location other than a bathroom for the expression of breast milk,
  • acquisition or modification of equipment or access to or modification of employee seating,
  • a temporary transfer to a less strenuous or hazardous position, and
  • assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and unpaid leave to recover from childbirth.


As to unpaid leave, the new law states that an employer cannot “require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of such employee.”


New Proactive Notification Requirement


All covered employers must inform employees about the reasonable accommodations and non-discrimination aspects of the new law by displaying a poster in a workplace area visible to all employees as well as in any employee handbook. The same information must be provided to any employee, within 10-days, who gives notice of her pregnancy and any new employees during their on-boarding process.


Undue Hardship


An area particularly ripe for future litigation is an employer’s claim that an accommodation to a pregnant employee need not be provided because it would be an undue hardship. This exception is similar to that found in the ADA.  Primarily, there are three general factors that can determine whether an accommodation would create an “undue hardship” for the employer: (1) the size of the employer; (2) the nature and cost of the accommodations requested; and (3) nature of the employer’s operation.


DiMuroGinsberg Is Here To Help


What should you do to make sure that you are in compliance with the VVA and all the other important law mandates that the General Assembly enacted this year:


First, if you were not able to join us on June 2, we encourage you to watch our free webinar for employers on the recent changes made by the General Assembly available here.


Second, inform your employees of their rights under the VVA, as discussed above;


Third, review your existing employee policies and procedures to ensure that they are in accord with your new obligations under the VVA; and


Fourth, when in doubt, consult with experienced employment counsel to ensure that your operations and actions do not give rise to a discrimination charge or lawsuit.


The attorneys at DiMuroGinsberg are here to assist you in navigating the complexities of the new legal landscape.  We represent employers in Virginia federal and state courts, as well as before federal and state administrative agencies. We also help employers prevent problems from arising by providing employment law compliance counseling, advice and training.


Our employment law practice group is led by Jonathan R. Mook, who has over 30 years of experience in employment law and is a nationally recognized authority on the Americans with Disabilities Act. He is the author of two treatises on the ADA published by Matthew Bender Company. Mr. Mook is a frequent lecturer on employment law issues and is a co-editor of the Mid-Atlantic Employment Law Letter published by BLR.


If you are in need of advice or representation, please do not hesitate to contact our firm for more information about our employment law services.