Employment Law Updates

In our last blog we discussed the process for reporting to the VEC an employee’s refusal of an offer to return to work. We have been receiving inquiries from some companies that have received a Paycheck Protection Program (PPP) loan about the effect rehire refusals will have on the loan forgiveness. As a condition of loan forgiveness, an employer must call back to work those employees who were laid off.

Many employers have laid off employees because of the coronavirus pandemic, but are now calling them back to work. Some companies have received a Paycheck Protection Program loan which, as a condition of loan forgiveness, requires the employer to call back to work those employees who were laid off. We have been receiving reports from employers that some employees are refusing to return to work, primarily for two reasons: (1) the employee is receiving more in compensation from unemployment benefits than the employee had been receiving from the company in pay; and (2) the employee has anxiety about returning to work because of the pandemic.

In another of the many new laws concerning employment, the 2020 Virginia General Assembly passed and the Governor approved HB 395 which will increase Virginia’s minimum wage from its current $7.25 per hour to $15.00 per hour by 2026. The increase is to occur gradually, with the hourly rate increasing to $9.50 on May 1, 2021, $11.00 on January 1, 2022, $12.00 on January 1, 2023, $13.50 on January 1 2025 and $15.00 on January 1, 2026.

The Department of Labor has provided some additional guidance about the small business exemption to the FFCRA’s expanded FMLA child care-related paid sick leave requirements.  An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. Businesses are entitled to the exemption if an authorized officer of the business has determined that:

The new Virginia Values Act will go into effect July 1, 2020. This is groundbreaking legislation that, among other things, prohibits discrimination based on a person’s sexual orientation or gender identity. The law is far-reaching and governs discrimination in employment, public accommodations, housing, banking and education.  This blog will focus on the employment aspects of the new law.

This will be the first in our series about the new legislation resulting from the 2020 Virginia General Assembly session.

Many of your companies have already applied for and received the loans provided by the new Paycheck Protection Program which is part of the CARES Act.  A key incentive to receive these loans is the forgiveness feature.  Loans are forgiven when the proceeds are used for any of these costs:

The Department of Labor and IRS have issued temporary regulations concerning the supporting documentation required when employees request paid sick leave and emergency family and medical leave under the Families First Coronavirus Response Act (FFCRA). The DOL regulations provide that an employer may (but are not required to) require employees to follow reasonable notice procedures as soon as practical. That can be after the first workday or portion of a workday for which an employee receives paid sick leave in order to continue to receive such leave. The employee must provide a signed statement containing:

The Department of Labor has now issued guidance in the form of Q & A’s concerning the health care and small business exemptions from the paid leave provisions of the FFCRA. The guidance concerning health care is as follows:

56. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

On Friday, March 27, the federal Coronavirus Aid, Relief and Economic Security (CARES) Act was enacted. The goal of the new law is to boost the economy with provisions that will provide direct payments to individuals and relief for businesses, including provisions that will impact:

The Department of Labor has provided a model workplace poster concerning the new emergency paid sick and family leave requirements of the new Families First Coronavirus Response Act (FFCRA) which takes effect April 1. The poster for non-federal employees can be found on the DOL’s website at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf. 

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