DiMuroGinsberg Partner Discusses the Impact of the Continued COVID Pandemic

“2021 Trends: Dealing with the Impact of the Continued Pandemic Emergency in a Legally Compliant Manner,” was the subject of a presentation by DiMuroGinsberg partner, Jonathan R. Mook, for a January 20, 2021 webinar sponsored by Simplify Compliance. As part of his presentation, Jonathan addressed the legal ramifications stemming from the increased reporting by employees of symptoms of anxiety and stress and how those symptoms may be indicia of a disability under the Americans with Disabilities Act (“ADA”). According to the Centers for Disease Control, the number of persons with symptoms of anxiety disorders tripled in 2020 compared to 2019. That increase is likely to continue into 2021, Jonathan predicted.

As a result, Jonathan cautioned employers to carefully consider the concerns of employees who report episodes of anxiety and stress and to make an assessment as to whether they may have a legal basis to claim coverage under the ADA. Jonathan discussed the common types of accommodations that an employer may need to provide to accommodate employees with mental disabilities exacerbated by the pandemic. These accommodations include telework, modified work schedules, medical leave, and the elimination of stressful, nonessential job functions.

Jonathan’s presentation also addressed the ways in which employers can facilitate the return of employees to the workplace. In doing so, Jonathan emphasized the obligation of employers to ensure the safety of those returning to work, which may include instituting social distancing policies, mask mandates, and more intensive cleaning and disinfection protocols. Additionally, Jonathan discussed the EEOC’s recent guidance pertaining to the pandemic, including allowing employers to institute health screenings and COVID-19 testing of employees returning to the workplace. The EEOC’s recent guidance allowing employers to mandate COVID vaccinations also was discussed. Jonathan advised, however, that employers should proceed with care in imposing a vaccination mandate, especially in light of an employer’s obligation to reasonably accommodate disabled employees who for health reasons should not be vaccinated, as well as to accommodate other employees whose religious belief opposes vaccinations.

If you would like to receive a copy of the PowerPoint for Jonathan’s presentation, you may contact him at jmook@dimuro.com.

DGRead 21.03.01

Virginia Set to Legalize Recreational Marijuana; President Biden Names New Chair to the EEOC: DiMuroGinsberg Partner Jonathan Mook Comments on EEOD’s Proposed Wellness Rule: DG/30 Milestone

Virginia Enacts Permanent COVID-19 Workplace Standard

By: Jonathan R. Mook

Last summer, Virginia became the first state in the nation to adopt mandatory workplace safety rules to prevent the spread of COVID-19 by approving an Emergency Temporary Standard for Infectious Disease Prevention (“ETS”).  Recently, the state adopted a Permanent Standard covering most private employers in the Commonwealth, as well as state agencies and local governments.  The Permanent Standard mandates appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications protocols.

The Permanent Standard aligns closely with the ETS and is intended to slow the transmission of COVID-19 and protect Virginia workers as the pandemic drags on.  The workplace safety requirements will remain in place throughout the pandemic.

New Requirements

Although the Permanent Standard basically adopts the ETS requirements, there are some notable exceptions of which employers should be aware:

  • Return to work. No longer may employers require a negative COVID-19 test as a condition of a symptomatic employee returning to work, as previously allowed under the ETS.  Instead, employees may physically return to work after (i) the employee is fever-free for at least 24 hours, (ii) respiratory symptoms have improved, and (iii) at least 10 days have passed since symptoms first appeared.
  • Reporting obligation. Employers must report to the Virginia Department of Health when two or more employees test positive for COVID-19 within a 14-day period.  This loosens the ETS requirement that you report each time an employee tests positive for COVID-19.
  • Face coverings. Acceptable “face coverings” for employees who interact with others is more strictly defined under the Permanent Standard as “two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin.”  Exhalation vales or vents are prohibited.

One omission from the Permanent Standard is any guidance or requirements with respect to vaccination of employees.  Importantly, that employees have been vaccinated does not eliminate or modify your obligation to comply with the Permanent Standard.


The Virginia Department of Labor and Industry will enforce the Permanent Standard.  Should a complaint raise serious concerns about your compliance, the Department may initiate a formal investigation and pursue enforcement action.  The Department already has received over 15,000 complaints about workplace safety due to COVID-19, so it is important that employers follow the Permanent Standard to avoid being the subject of citations and fines, which may amount to over $12,000 for serious violations and over $125,000 for willful ones.

Bottom LineAll Virginia employers who are covered by the new Permanent Standard should familiarize themselves with the requirements and ensure that they are followed.  Employers have only until March 26, 2021 to update their infectious disease preparedness and response plans and to complete any necessary training as mandated by the Permanent Standard.

If you would like to obtain a copy of the Permanent Standard, or if you have any questions as to your obligations under the Standard and what you must do to comply, please contact DiMuroGinsberg partner, Jonathan Mook, at jmook@dimuro.com.

For further information about Virginia’s COVID-19 requirements for workplaces, please see the article, entitled “Virginia Enacts Standards to Protect Workers from COVID-19 Exposure” by DiMuroGinsberg attorney, Jayna Genti, which is found in the October, 2020 issue of the Mid-Atlantic Employment Law Letter.

Virginia Set to Legalize Recreational Marijuana

By: Jarrad Wright

Virginia is on the verge of making history and becoming the first state in the South to legalize and regulate recreational marijuana.  Last year the General Assembly decriminalized marijuana by eliminating criminal sentences and replacing them with small fines.  Now, on February 2, 2021, the House, in an 55-42 vote, passed HB2312 which sets forth a regulatory framework for legal sales of recreational marijuana.  A few hours later, the State Senate bill later that day passed SB1406 in a 23-15 vote.

The two bills are similar in that they set forth a regulatory authority to handle the taxing and sale of recreational marijuana, but there are differences between the two bills that will require reconciliation between the two chambers.  For example, the Senate version allows local governments to opt-out of sales and requires another vote by the General Assembly to finalize the regulatory process.  Accordingly, the reconciliation process between the competing bills is ongoing, and Governor Northam has indicated that he will likely sign the final bill into law.

Although the form of the regulatory scheme for marijuana sales is becoming in focus, Virginia employers have many unanswered questions.  For example, both bills restrict the ability for anyone to obtain criminal records related to marijuana checks and this will impact background checks run by employers in the hiring process.

Another important question is whether employers can maintain their current drug testing policies and, relatedly, whether employers will be able to fire employees for positive marijuana tests.  The current House and Senate bills do not address these issues directly.  Under current law employers can maintain drug testing policies for marijuana, and current Virginia law generally allows employers latitude in setting policies that allow them to test and to fire employees for legal drug use outside of working hours.  The only statutory exception is that public employers are prohibited from firing employees for tobacco use outside of work hours.  The current bills in the General Assembly does not change this general framework, and unless the General Assembly addresses these issues during the reconciliation process, presumably Virginia employers will still be allowed to have policies for drug testing and policies allowing them to fire employees for positive marijuana tests.

However, the law is developing quickly, and there is a distinct possibility that the General Assembly addresses these issues in reconciliation or in upcoming bills.  Moreover, if not addressed by the General Assembly this issue is likely to be litigated as it has been in other states such as Colorado.  In that state, courts recognized employers’ rights to maintain drug testing.  As time goes on and because the General Assembly is setting forth a public policy to decriminalize and to raise tax revenue for pre-kindergarden through marijuana sales, a court in theory could hold the opposite view.

Ultimately, Virginia’s law concerning marijuana usage is rapidly changing and employers need to be aware that there are likely to be many changes in the upcoming year. While the General Assembly is working on the current legislation, elections will occur in November, and the scope and breadth of the changes are likely to impact some races in the state.  Moreover, just as other states have had to make adjustments as they have legalized and regulated marijuana, Virginia is likely to make adjustments for the foreseeable future to address unforeseen issues.  Virginia employers, especially those working with federal contracts or those with offices in multiple states, should continue to monitor the changing regulatory environment to make sure their policies stay compliant.

DGRead 21.02.15

Legal Pitfalls of Vaccination Incentives; Rocket Docket Update; Fifteen Dollar Minimum Wage?; DG/30 Milestone

DGRead 21.2.01

4th Circuit Upholds Shortened Limitations Period in Arbitration Agreement; Rocket Docket Update; Virginia Creates Office of Civil Rights to Target Discrimination; DG/30 Milestone

Virginia Law Targets Worker Misclassification

By: Jayna Genti, DiMuroGinsberg P.C.

Companies misclassifying their employees as independent continues to be a hot-button issue throughout the country, and Virginia is no exception. In the last year alone, legislation related to independent contractor misclassification was introduced at the federal level and in at least 20 states. New Jersey and California recently enacted employee misclassification laws, and other states including New York are considering similar legislation.

Virginia Acts to Prevent Misclassification

In 2019, Virginia Governor Northam issued an executive order calling for an inter-agency task force to make recommendations on how to address the issue.  The study results issued last November found that about 214,000 Virginia workers are misclassified as contractors, costing the Commonwealth some $28 million in tax revenues each year.

In response to the task force’s recommendations, the Virginia General Assembly passed legislation this term that seeks to prevent misclassification and to penalize those employers who misclassify their workers.  Governor Northam recently signed the legislation into law, which will take effect January 1, 2021.

Classification of Employees

Under the new law, the Virginia Department of Taxation will determine whether a worker is an employee or independent contractor by applying Internal Revenue Service guidelines.  The IRS guidelines involve a multi-factor analysis, with the most important being the level of control exercised by a company.  In making the requisite assessment, the presumption will be that a worker who performs a service for an employer for pay will be considered an employee unless the individual or his or her employer demonstrates that she is an independent contractor.

Penalties and Enforcement

The new Virginia misclassification law has some real teeth.  Businesses that improperly treat their employees as independent contractors will be subject to a fine of up to $1,000 per worker for a first offense.  Maximum fines will increase to $2,500 per misclassified individual for a second offense, and up to $5,000 per misclassified individual for a third or subsequent offense.

The new legislation also prohibits the awarding of public contracts to employers that misclassify workers.  Debarment will last for up to one year for a second offense and up to two years for a third offense.  The legislation further requires the Virginia Department of Taxation to share information to help with enforcement.

Further Efforts to Halt Misclassification

The new Virginia law imposing penalties for employee misclassification will not be the end of the story.  Further efforts are likely to be forthcoming to crack down on employers who misclassify their workers, and deny tax revenues to both states and the federal government.  The impetus for the Commonwealth to move quickly against employee misclassification has arisen as a result of the recent federal legislation extending unemployment insurance to gig workers and other independent contractors who do not traditionally receive unemployment when they cannot work.  Unemployment benefits are funded by specific payroll taxes on employee pay.  Companies, however, do not pay unemployment insurance for independent contractors, even though they will now be able to receive unemployment benefits courtesy of the federal government.

Thus, we can expect heightened scrutiny on companies that misclassify employees as independent contractors and, thereby, evade their obligation to pay unemployment taxes.  As it stands, misclassification already has reportedly denied the Commonwealth substantial revenue, and this concern will only be heightened by the current COVID-19 pandemic and the stay-at-home orders shuttering many businesses.

Bottom Line

Going forward, you can expect greater attention by Virginia enforcement and investigative agencies to claims of worker misclassification.  Those agencies are on high alert for violations of the law and undoubtedly will use the full spectrum of available enforcement mechanisms to crack down and penalize those employers that evade the law.  The stakes of losing at the agency level are high and can lead to fines, legal expenditures, and litigation.

Given the continuing evolution of these and other related employment law matters, you are well advised to undertake a thorough assessment of the appropriateness and defensibility of classifying any members of your workforce as independent contractors.  Such an evaluation should be undertaken under the direction of an employment law attorney who is well versed in these matters and can review your policies and present workforce classifications to ensure legal compliance.  Misclassification no longer will result in simply a slap on the wrist.  Real penalties will now be imposed.

Virginia creates Office of Civil Rights to target discrimination

By: Billy B. Ruhling, II, DiMuroGinsberg P.C.

Virginia Attorney General (AG) Mark Herring has launched a new Office of Civil Rights to help protect residents from discrimination. The move is seen as a response to the cultural awakening the nation experienced in 2020 after high-profile police shootings and the recognition that once-common offensive behavior toward certain gender groups is no longer acceptable in the Old Dominion.

What’s changing

On January 5, 2021, Herring announced the existing Office of Human Rights would be restructured to create the new Office of Civil Rights. Along with the name change, the staffing will increase significantly, and the new office’s scope and reach will be more encompassing.

The Office of Civil Rights will be staffed by seven attorneys and six staff members, which is a dramatic uptick from the Office of Human Rights’ previous complement of just one lawyer and three staffers.

The change builds upon a series of bills passed in the Virginia General Assembly in 2020 authorizing the AG to investigate discrimination in local police departments and enhancing the agency’s ability to protect LGBTQ rights and root out gender-based discrimination.

As Herring explained when announcing the change, “The Office of Civil Rights will enhance our ability to protect Virginians from discrimination in housing, employment and public life, as well as allow us to tackle new responsibilities, like ‘pattern and practice’ investigations that can root out and end unconstitutional policing and enforcing protections against discrimination for LGBTQ Virginians.”

You can reach the new office at 804-786-2071 or by e-mail at CivilRights@oag.state.va.us.

Billy B. Ruhling, II, is an attorney at DiMuroGinsberg P.C. in Alexandria, Virginia, and can be reached at bruhling@dimuro.com.

Co-Worker’s Offensive Statements to Colleague May Not Give Rise to Hostile Work Environment Claim

By: Stacey Rose Harris

Nicole Bazemore is an African-American who worked at Best Buy.  One day at work, her white colleague, Anne Creel, held up a hazelnut and said that she used to refer to those kinds of nuts as “N[….]r T[…]s.”  Bazemore was deeply offended and reported Creel’s conduct to management.  After some time, Bazemore was told that the situation had been addressed, but she was not told specifically what action was taken.  Creel did not make these statements again, but she was also not fired.  Nevertheless, Bazemore was deeply humiliated by the incident and believed it should have been addressed more publicly and with more severity.  She sued Best Buy in federal court in Maryland, asserting a claim of hostile work environment under Title VII of the Civil Rights Act.

Best Buy moved to dismiss Bazemore’s claim, arguing that Creel’s conduct could not be imputed to it.  Specifically, to state a claim against an employer for hostile work environment, the plaintiff must allege four elements: (1) that she was subject to unwelcome conduct; (2) based on her race or sex; (3) that was severe enough to make her work environment hostile or abusive; and (4) which conduct is imputable to her employer.

The question of imputation was the subject of the court’s analysis.  This element was problematic for Bazemore because the statement was made by a co-worker, not a superior.  The law in the Fourth Circuit is that, to show imputation, a plaintiff must allege that the employer knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it.  Bazemore had alleged that she informed Best Buy of Creel’s statement; that Best Buy had taken action (albeit not action as forceful as Bazemore would have liked), and that Creel’s conduct did not repeat.  Based on Bazemore’s own allegations, she failed to show that Best Buy knew or should have known of the conduct and failed to take reasonable actions to stop it.  When the wrongdoer is a superior, it is more difficult for the employer to overcome the burden of showing that it did not know of, or took reasonable actions, to stop the conduct.

Even if Best Buy’s corrective measures were not as strong as Bazemore would have liked, the Court noted that it does not “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination . . ..” Rather, Bazemore’s allegations that Best Buy did address the situation, and that Creel’s conduct did not occur again, were sufficient to defeat Bazemore’s ability to satisfy the fourth element of her claim.

The take-away of this ruling for employers is to take immediate action in response to racially or sexually offensive remarks, and document those efforts, including follow-up.  These kinds of measures may be sufficient to defeat a claim of hostile work environment when the wrongdoer is a colleague, (not a superior) of the plaintiff.

4th Circuit upholds shortened limitations period in arbitration agreement

By: M. Jarrad Wright and Jonathan R. Mook, DiMuroGinsberg P.C.

Over the last several years, employers increasingly have been requiring employees to sign mandatory arbitration agreements as a condition of employment. The trend has been on the uptick because of concerns about the ever-increasing cost of litigation and the potential for runaway juries to award millions of dollars in damages. The U.S. 4th Circuit Court of Appeals (whose rulings apply to all Virginia employers) recently highlighted an additional benefit of arbitration. The court ruled an employment agreement’s requirement that any claim be made within one year was enforceable even though a number of employment-related claims the employee asserted had longer limitations periods.


Michael Bracy worked as a truck driver for Lancaster Foods LLC. When he was hired, he signed a mandatory arbitration agreement, which required any claim against the company to be filed within one year and heard by an arbitrator, not a jury.

After Bracy suffered an on-the-job injury, he and Lancaster disagreed about his work restrictions, and ultimately, the company viewed his position as a resignation. He sued the company in state court asserting various employment claims.

The case was moved to federal district court, and Lancaster sought to dismiss Bracy’s claims and compel arbitration based on the terms of the arbitration agreement he had signed. He opposed the company’s request, arguing the arbitration agreement was unconscionable and couldn’t be enforced because it shortened all applicable statutes of limitation to one year. The district court rejected his contention the arbitration agreement wasn’t enforceable and dismissed his suit.

4th Circuit’s decision

Bracy appealed the district court’s decision to the 4th Circuit, which is based in Richmond and whose decisions apply to federal courts not only in Virginia, but in West Virginia, North and South Carolina, and Maryland as well. On appeal, the court made short shrift of his argument that Lancaster’s arbitration agreement couldn’t be enforced because it shortened the statute of limitations for employment claims.

Relying on prior established 4th Circuit law, the court held that as “a general rule, statutory limitations periods may be shortened by agreement, so long as the limitations period is not unreasonably short,” and as long as the statute at issue doesn’t prohibit contractually shortened statutes of limitations.

The 4th Circuit also noted contractual limitation periods of one year or less have been found to be reasonable. Accordingly, the court affirmed the district court’s dismissal of Bracy’s lawsuit. Bracy v. Lancaster Foods, LLC, Case No. 19-1292.

Bottom line

The 4th Circuit’s decision serves to confirm the benefits of having your employees sign mandatory arbitration agreements as a condition of employment. The agreements must be properly tailored, however, to ensure they will pass court muster. Although the 4th Circuit in Bracy approved an arbitration agreement with a limitation period of one year, its reasoning makes clear a 30-day limitation for pursuing a claim, in all likelihood, would render the agreement unconscionable and unenforceable.

Where to draw the line on the statute of limitations as well as other provisions in an arbitration agreement are matters that should be determined based on consultation with experienced employment counsel. The last thing any employer wants is to require employees to sign mandatory agreements to arbitrate and, later, find out the agreements are unenforceable because of an unconscionable provision.

Jarrad Wright and Jonathan R. Mook are partners at DiMuroGinsberg P.C. in Alexandria, Virginia, and can be reached at mjwright@dimuro.com and jmook@dimuro.com.