Archive for year: 2022

By: Jonathan R. Mook

Although many jurisdictions, including the District of Columbia and Maryland, have taken steps to mandate employers to provide paid leave, including maternity leave, Virginia has adopted a more modest approach with respect to paid leave following childbirth.

What is required
Virginia’s approach focuses on insurance companies and requires that their short-term disability (STD) policies include provisions for maternity leave coverage. Thus, for Virginia employers that choose to provide STD coverage, it now will include disability coverage that arises out of childbirth. More specifically, STD policies that were delivered or issued for delivery in the Commonwealth by an insurer on or after July 1, 2021, must provide a maternity benefit of at least 12 weeks following childbirth.

Not every employee who gives birth, however, will be entitled to the STD maternity benefit. That’s because the employee must meet the current definition of disability outlined in the employer’s STD plan. Additionally, some pre-existing condition limitations of the STD plan may apply to the new maternity benefit. For example, when an employee is within the pre-existing condition limitation of the employer’s STD plan, the maternity benefit won’t be available. An STD plan’s elimination period cannot be used, however, to reduce the mandatory 12-week maternity benefit.

Requesting information
Because STD policies vary depending upon the insurer, Virginia employers should request information from their STD carrier on changes in the policy language for the new maternity leave requirement. You also should ask the carrier whether it will require employees seeking maternity benefits to obtain medical documentation stating they are disabled and unable to return to work for up to 12 weeks.

Some insurance carriers may not require documentation, but if that’s the case, you likely will see an increase in the cost of your STD policies.

What employers should do
There are two important steps that Virginia employers should take in light of Virginia’s maternity disability requirement.

First, employers that have STD plans should contact their insurance carrier to make sure their plan, as well as all policy documents, are accurate and up to date and reflect the Virginia law requiring maternity benefits to be offered.

Second, you should review your current leave policies to make sure they reflect any STD benefits that are available to employees, including STD benefits for maternity leave following childbirth. Assuming you have STD benefits for your employees, make sure the duration of your leave plans conforms to the STD benefits available.

Bottom line
At the present time, employers across Virginia are competing to hire new employees as well as adopting policies to retain their existing workforce. Accordingly, don’t forget to let job applicants and existing employees know about any STD benefits for childbirth that now are available due to Virginia’s new law. This is a benefit that may well prove to be significant to both job applicants and employees alike.

By: Jarrad Wright

As all business owners know, litigation can happen at any time and often where you least suspect it. While good planning and policies can reduce the chances of litigation, it is impossible to predict and prevent every possible scenario. What should you do when litigation becomes a real possibility? Besides calling able counsel, one of the first things a lawyer will tell clients to do is to preserve all documents potentially related to the matter. However, in today’s age of cloud computing, disposable devices, and social media, this can be harder than it sounds.

The duty to preserve documents begins when one reasonably anticipates litigation, and courts have imposed stiff sanctions, ranging from fines to adverse jury instructions, for failing to preserve documents. So, before litigation begins it is important to preserve everything for discovery. This includes paper files, emails, social media accounts, telephones, electronic documents, databases, and servers. While often seen as a business interruption because of the time and cost, preserving documents early on will assist your lawyers in getting ahead of discovery and in many instances becomes the key to preserving valuable communications that could win your case as well as preventing sanctions.

Many larger to middle sized companies have document preservation policies in place, but these policies are often absent in companies that do not have significant litigation experience. Whether or not a written policy exists, it is imperative for a company or individual to quickly determine where potentially relevant documents may be located and how to stop any automated procedures in place that could potentially delete or destroy those documents. Many information technology systems have automatic deletion mechanisms that need to be identified and stopped. Likewise, mundane tasks such as upgrading a smart phone can becoming a liability if the evidence is not properly preserved before getting that new phone. Knowing precisely what needs to be preserved is key and conversations with experienced counsel early in the process will help identify key witnesses and documents. Experienced litigation counsel can locate specialized experts to preserve complicated databases. That said, a business even before hiring counsel can improve its situation by taking issues directives to not delete emails and to preserve all handwritten notes. Remember that when the threat of litigation suddenly arises, taking active steps to put yourself or your business in the best position is necessary. If you’d like to discuss this further, contact Jarrad Wright at Jwright@dimuro.com.

DiMuroGinsberg, P.C. has decades of combined experience in handling document preservation and spoliation cases and is knowledgeable in all aspects of these matters.