There have been some important developments in state and local laws affecting employers in the DMV. In addition, employers need to understand how the widespread availability COVID-19 vaccinations in the DMV may impact the workplace. We have summarized the changes below.
Virginia’s Temporary COVID 19 Regulation is Permanent
Effective January 27, 2021, Virginia’s Temporary COVID-19 Regulation became permanent. The permanent regulation will remain in effect until rescinded by the Department of Labor and Industry. This means that the suspension of a public health order does not mean that employers may disregard the regulation’s requirements. The regulation is enforced by the Virginia Department of Labor and Industry and the Virginia Occupational Safety and Health Department. Either agency has the authority to impose significant fines for non-compliance.
The key differences relate to return to work procedures. The temporary regulation permitted employers to use a testing protocol for return to work. An employee that had two negative COVID-19 tests no closer than 24-hours apart could return to work. The temporary regulation also specified a time-based strategy under which an employee could return after a certain number of days had passed with a doctor’s note and the employer would be deemed to have complied with the temporary regulation for return to work. Under the permanent regulation, employees cannot return to work until at least 10 days have passed from exposure, positive test or appearance of symptoms and at least 24 hours have passed since the employee no longer had fever (without use of medication) or respiratory symptoms.
It is important to note that there is no exception for compliance with the regulation’s requirements because employees have been vaccinated.
For clients that have already implemented Rees Broome’s form policy or their own policy, changes should be made in the return to work area of the policy. If you have not yet adopted a policy, we advise against any further delay in doing so. We are here to help with compliance with Virginia’s COVID-19 regulations.
What Employers Should Know About Virginia’s Legalization of Recreational Marijuana
Since 2020, Virginia has been moving toward the legalization of recreational marijuana. As of March 1, 2020, it is no longer criminal to possess small amounts of marijuana and it became legal to possess and use marijuana or cannabis oil if prescribed by a certified medical practitioner in connection with the treatment or alleviation of a medical condition.
However, as of July 1, 2021, employers will have to address the effect of the legalization of recreational marijuana in Virginia in the workplace. Adults in Virginia, twenty-one (21) or older, may possess up to one ounce of marijuana. Each household may grow up to four (4) marijuana plants, but the plants must not be accessible to children. Adults may also gift up to one (1) ounce of marijuana to another adult. As of now, the only place that marijuana may be smoked or consumed is in a private home. Consumption of marijuana in a public place or in a vehicle is illegal. The concept of open containers of alcohol in vehicles will apply to marijuana in public or in vehicles. If a police officer sees marijuana in a vehicle or in public, the person in possession of the marijuana will be assumed to be under the influence of marijuana. Selling of marijuana at licensed facilities will take several years as there are no regulations in place. Thus, for now, this (forgive the pun) legal recreational marijuana use and possession is a homegrown activity.
Since up until July 1, 2021 recreational marijuana use and possession is illegal under both federal and state law, employers were easily able to institute a no marijuana use policy (with the exception of accommodations for employees with prescriptions). Recall that marijuana is still illegal under federal law so accommodations for marijuana medical use is handled under state law. Now, employers are confronted with maintaining a safe work environment while responding to an employee’s positive drug test for marijuana when the employee may not have been “under the influence at the time of the test.” As of now, there is no specified level of the amount of THC in the blood or urine that indicates that the employee is actually then under the influence of marijuana. Employers will have to make decisions about how to handle the results of random drug screenings that show marijuana in the employee’s system.
What can a Virginia employer do or not do now that recreational marijuana will be legal as of July 1, 2021? Employers should continue to:
- Prohibit the possession and use of marijuana in its workplace, including worksites, parking lots, lockers, offices, desks, etc.
- Prohibit employees from coming to work under the influence of marijuana or using marijuana during the workday (even on lunch breaks).
- Require employees to seek reasonable accommodation for the use of medical marijuana in any form (including cannabis oil). Applicants should be encouraged to make a request for an accommodation for medical marijuana use.
- Require the employee or applicant to provide a prescription or certification for use of medical marijuana from his/her healthcare provider. Encourage employees to make the request for an accommodation for medical marijuana use as soon as they obtain the prescription.
The major concern for the employer remains what to do in the event of an employee’s positive test for marijuana that is a result of legal off-duty activities. Some employers offer the employee a get-out of jail free card the first time that a random drug screening comes back positive for marijuana use (provided that there are no signs of impairment). Other employers will maintain a strict no positive test result policy. In either case, employers should let employees know that what they choose to do on their off-duty hours may impact their employment and the consequences they will suffer due to a positive test result. Of course, employers must ensure that whatever the policy is with respect to positive marijuana tests it is neutrally and equally applied.
Employers that have state or federal contracts that prohibit the use of controlled substances should advise their employees that it is a condition of the contract/regulation and their employment that employees not be under the influence of marijuana. Accordingly, and subject to applicable state law regarding disability accommodation, employment may be terminated if a drug screen comes back positive (no matter when the employee asserts the marijuana was used). While some states, for example Massachusetts, have recognized a medical marijuana user’s right to a reasonable accommodation in connection with a positive drug test, Virginia has not done so.
How should an employer deal with a positive test but no signs of impairment? This scenario is likely to occur when the employer has a random drug screening program or initial dug screening requirements. Employers should inform applicants and employees that it does not tolerate marijuana use on the job and that a clean drug screen is a condition of employment. Thus, employees should be aware that recreational use of marijuana on the weekend could result in termination of employment. Employers should be on guard for positive test results from employees that have prescriptions for use of marijuana products and be ready to engage in reasonable accommodation dialogue in the event of positive drug tests.
DC’s New Noncompete Law
DC enacted the Ban on Noncompete Laws (the “Act”) on January 11, 2021. With limited exceptions, any person who performs work in the District on behalf of an employer or any person who is expected to perform work on behalf of an employer in the District is entitled to receive the protections of the Act. Persons who are excluded from the Act’s protections are: volunteers, religious officiants, casual babysitters and highly compensated medical professionals (persons who hold licenses to practice medicine, are physicians, and have compensation of at least $250,000 per year). Employers are defined under the Act as individuals, corporations, partnerships, associations, etc. who operate in the District “in relation to an employee.” The Act specifically excludes the District of Columbia government or the United States Government.
The Act makes it illegal for an employer to require an employee to enter into a written agreement that prohibits the employee from being “simultaneously or subsequently employed by another person, performing work or providing services for pay for another person, or operating the employee’s own business.” Employers may not publish or enforce policies that similarly prohibit an employee from (1) being employed by another person; (2) performing work or proving services for pay for another person; or (3) operating the employee’s own business. Again, there are limited exceptions. Employers may still require employees to enter into written agreements that protect confidential, proprietary, or sensitive information, including client lists, customer lists and trade secret information. Buyers entering into sale of business agreements may require noncompete agreements with one or more sellers with respect to the business being sold.
The Act includes anti-retaliation provisions. An employer may not retaliate against any employee that asks about, complains about or informs the employer, a coworker, the employee’s lawyer or agent, or governmental entity about the Act.
As with most laws of this kind, employers are required to provide notice of Section 102 of the Act to all employees within ninety (90) days of the applicable date of the Act and to any new employee within seven (7) calendar of employment. Notices of employee rights must also be provided within fourteen (14) days of an employee making a written request for notice of the rights under Section 102 of the Act.
DC may impose administrative penalties and employees may file an administrative complaint or civil action against an employer for violation of the Act.
The Act only applies to non-competes and policies in effect prior to the effective date of the Act. The Act officially took effect on March 16, 2021 but it is not yet clear when the non-compete ban will take effect. This is because the Act does not apply until it is included in an approved budget and financial plan. This is typically done October 1, 2021 though it could be as early as July 2021.
There is still time to take measures to avoid the impact of the Act for the near future. Employers should ensure that it has non-competes with existing employees and policies in place prior to the date the ban goes into effect.
American Rescue Plan Act of 2021 (ARPA) and Tax Credits for Paid Time Off for Employees Relating to COVID-19
In January 2021, Congress permitted employers who voluntarily extended paid leave benefits to employees under the Families First Coronavirus Relief Act (“FFCRA”) to continue to take tax credits for paid leave provided to employees. At that time, the leave allotment was not increased and the ability to take the tax credit expired on March 31, 2021. Thus, employers were only entitled for a tax credit for leave that had not been taken as of December 31, 2020 and only for leave granted until March 31, 2021. In other words, employees that had used all of their 80 hours of sick leave or all of their 10 weeks of paid EFMLA leave were not entitled to any more leave.
With the passage of the American Rescue Plan Act of 2021 (“ARPA”) employers with fewer than 500 employees who chose to voluntarily provide FFCRA paid leave to employees for qualifying reasons will receive tax credits for the leave taken through September 30, 2021. The leave bank was refreshed. Thus, employees who had exhausted all of their FFCRA prior to March 31, 2021 will receive a new leave allotment of 10 days (80 hours) of Paid Sick Leave as well as new leave allotment for paid EFMLA leave. Importantly, the allotted amount of paid EFMLA leave has increased from 10 weeks of paid leave to 12 weeks of family medical leave.
ARPA also expanded FFCRA leave eligibility to employees who need to take time off from work for their own or their family members’ COVID-19 testing, COVID-19 vaccinations and for any needed recovery from side effects from the vaccine.
The tax credit for this vaccine leave is slightly different. The tax credit (for employers with fewer than 500 employees) is against Medicare tax paid. It is claimed on employer’s Form 941, Employers Quarterly Federal Tax Return.
Employers that voluntarily extended FFCRA paid leave benefits will have to update leave policies to provide for the updated leave banks and expanded qualifying reasons for taking the paid leave.
Mandatory Vaccine Policies and Impact on Employer Operations
With the widespread availability of vaccines, employers are asking if they should adopt a mandatory vaccine policy. For most employers, the question is answered in the negative unless an unvaccinated employee poses a direct threat to his/her own health or safety or the health or safety of others. Unless the employer is acting in a healthcare profession, long-term care facility, first-responder/emergency workers, or laboratory workers where there is a high risk for exposure or spread of COVID-19 from or to others, it will be difficult for an employer to assert that unvaccinated employees pose a direct threat to health and safety.
Why is that important? Unless an employer can prove that the direct threat exists, an employer will have to accommodate requests of employees not to receive a vaccine due to health reasons or sincerely held religious beliefs. This means that the employer cannot terminate the employee without risking a claim of discrimination on the basis of disability or religion. In addition, many states have pending legislation that makes it illegal to terminate employees for refusing to be immunized against COVID-19.
The best practice is to encourage rather than require an employee to be vaccinated.
Another common question is “can I let employees that are vaccinated have freedom from wearing a mask in the workplace?” If you have a workplace in Virginia, the answer is “no.” Virginia’s permanent regulation on COVID-19 provides no exemption from following COVID-19 protections for vaccinated workers. In addition, granting your vaccinated employees exemptions from workplace restrictions, e.g. wearing a mask, creates a claim for discrimination or retaliation for any employee with a disability, who is unable to get a vaccine, or any employee who refuses a vaccination for religious reasons.
If you have questions about what you can and cannot require employees to do with respect to COVID-19 vaccinations contact us.