Friday, April 17th, 2020
Like businesses and families, government and elected leaders are also facing new challenges stemming from the coronavirus outbreak, including the all-important question: can meetings be held at all and if so, how should public meetings of governmental bodies be held?
Fortunately, state law provides some guidance to local governments and other boards, commissions, and state agencies that need to meet. However, the law does include some limitations and restrictions that have necessitated pending legislative action that would significantly expand electronic meeting authority for all state and local governmental bodies.
Under an amendment to the state budget proposed by Governor Ralph Northam, any “public body, including any state, local, regional, or regulatory body, or a governing board” would be allowed to meet electronically under a fairly narrow set of conditions. This change is necessitated by limitations in Virginia’s current statutes on electronic meetings.
Current Electronic Meeting Laws
The Virginia Code provides for public bodies to hold meetings through electronic means, but by default the body must still have a quorum physically assembled in one place.
The law is primarily designed to allow individual members of body to still participate even if they cannot be present. In other words, if one member of a body cannot attend the meeting in person, they may still participate electronically.
State law includes an exception that allows public bodies to meet electronically without a quorum physically assembled in one place so long as the meeting’s purpose is to address the emergency.
In order to meet electronically, the governor must have declared a state of emergency and the public body must find that “the catastrophic nature of the declared emergency makes it impracticable or unsafe to assemble a quorum in a single location.”
In those meetings, importantly, however, the business of the body is limited to addressing the emergency, per Virginia Code § 2.2-3708 (3).
Proposed Change
Governor Northam proposed an amendment to the state budget that the General Assembly will consider on April 22. This amendment significantly expands the authority for state and local government to hold electronic meetings.
Under the proposed amendment, in order for a public body to meet electronically the governor would still have to declare a state of emergency and the public body would still have to find “the catastrophic nature of the declared emergency makes it impracticable or unsafe to assemble a quorum in a single location.” However, the meeting would no longer be limited to addressing the emergency. Under this proposed amendment, the government body could “discuss or transact the business statutorily required or necessary to continue operations of the public body or common interest community association as defined in § 54.1-2345 of the Code of Virginia and the discharge of its lawful purposes, duties, and responsibilities.” The Governor’s proposed amendment provides authority for governmental bodies to act, without a further legislative act, for instance, a local governing body would not be required to adopt an ordinance to implement the Governor’s proposed amendment.
In other words, under the Governor’s proposed amendment, governmental bodies would be able to meet electronically and conduct any business they might otherwise conduct.
However, there are already differing interpretations about what authority the Governor’s proposed amendment would actually provide. Interpretations run from what is “necessary to continue operations of the public body” which means only business relating to the “operation of that governmental body” to a broader and more reasonable interpretation that what is “necessary” includes private party requests for approvals from a governmental body, like approval of a land use case from a local governing body.
The Virginia Local Government Attorney’s Association (the “LGA”) published a guidance document dated March 24, 2020 to provide tools to local governing bodies to assist localities in continuing to conduct business during the COVID-19 Virus. The LGA guidance provides a model ordinance and resolution, a model declaration of local emergency, a model declaration of authority of the County, City or Town Executive, a checklist for compliance with public meeting requirements, background information including statutes and Attorney General’s Opinion.
Public Notice & Transparency
Under the Governor’s proposed amendment, public bodies must still provide public notice “using the best available method given the nature of the emergency.”
Public bodies must also make “arrangements for public access or common interest community association members access to such meeting through electronic means including, to the extent practicable, videoconferencing technology.”
Otherwise, all electronic meetings must comply with all other state laws and regulations, including the availability of agendas, documents and minutes.
Gentry Locke’s Government & Regulatory Affairs team is closely monitoring the actions of state and local governments throughout the coronavirus outbreak as part of Gentry Locke’s coronavirus response team. If you have questions about how your business or organization may be affected by state action, please call us directly at 866.983.0866.
Friday, April 17th, 2020
The Equal Employment Opportunity Commission has released technical guidance in addition to what was most recently released on April 9. Today, the EEOC added 10 questions and answers, several of which involve guidance on employees returning to work. We anticipate the EEOC will continue to periodically update this guidance. The full technical guidance can be found here.
Several points of significance:
D.5 & 6 Employers may ask for medical documentation. If an employee requests an accommodation for a medical condition, the employer may still ask questions of the employee or request medical documentation to determine whether the employee has a “disability” under the ADA and determine whether that disability necessitates an accommodation. The employer may still engage in the interactive process, and ask such questions as:
(1) how the disability creates a limitation;
(2) how the requested accommodation will effectively address the limitation;
(3) whether another form of accommodation could effectively address the issue; and
(4) how the proposed accommodation will enable the employee to continue performing the “essential functions” of the position.
D.7 Adapting the interactive process due to the pandemic. Given the circumstances surrounding the pandemic, employers may choose to shorten or forgo the interactive process and grant the employee’s request. Employer may wish to adapt the interactive process and devise end dates for the accommodation to suit changing circumstances based upon government orders and public health directives. Employers may also place a time limit on the accommodation or even provide the requested accommodation on an interim or trial basis, with an end date, while awaiting medical documentation.
D.8 Pre-return interactive process permitted. Employers may ask employees if they will need a reasonable accommodation upon return to the workplace, once the workplace re-opens. Employers may begin the interactive process prior to the workplace reopening.
D.9, 10 & 11 Undue hardship. The EEOC recognizes that certain accommodations may now present an “undue hardship” to an employer that would not have posed an undue hardship prior to the pandemic. An employer may consider whether current circumstances create “significant difficulty” in providing certain accommodations, considering the particular job and workplace. For example, it may be significantly more difficult to provide employees with temporary assignments, remove marginal functions, or readily hire temporary workers for specialized positions. The employer and employee should work together to determine if there is an alternative that does not pose an undue hardship on the employer. Prior to the pandemic, the EEOC did not consider that many accommodations posed a significant expense to an employer when compared to the overall budget and resources. Now, however, the EEOC considers the sudden loss of some or all of an employer’s income stream a relevant consideration. Employers may not simply reject accommodations that cost money, but they may weigh the cost of an accommodation against the current budget when considering constraints created by the pandemic.
E.2 Employers should remind employees about anti-harassment and discrimination. Upon return to the workplace, employers may remind employees that it is illegal to harass or discriminate against co-workers based on race, national origin, color, sex, religion, age, disability, or genetic information. The EEOC notes that it may be helpful to remind managers and supervisors of their roles in watching for, stopping, and reporting harassment or discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
G.1 Return to work – workplace screening. Once stay-at-home orders and other restrictions are modified or lifted, if employers desire to screen employees for COVID-19 when entering the workplace, they can do so under the ADA as long as the screening is consistent with advice from the CDC and public health authorities for that type of workplace at the time. This may include continuing to take temperatures and questioning employees about symptoms (or requiring self-reporting) for those entering the workplace. Additionally, the CDC recently posted information on return to work by certain types of critical workers, which can be found here. (Add link: https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html
G.2 Personal protective equipment and infection control practices in the workplace. An employer may require employees to wear protective gear like masks and gloves, and observe infection control practices like social distancing and handwashing upon return to work. However, if an employee requests an accommodation relating to personal protective equipment (like non-latex gloves or masks that provide for lip-reading if an employee is hearing impaired), the employer should discuss the request and provide the modification if feasible and it would not work an undue hardship on the employer. The same holds true for religious accommodation requests. An example of this would be modified protective equipment due to religious garb.
Thursday, April 16th, 2020
Employers across Virginia are concerned about protecting their employees from exposure to coronavirus infection and COVID-19 illness. Many are also asking what they can do to minimize their risk of facing a VOSH citation for failing to protect their employees from such exposure. Although there is no specific standard that OSHA has adopted concerning coronavirus exposure, failing to take reasonable steps to protect employees could be the basis of a “General Duty Clause” violation. At a minimum, employers should develop and implement infectious disease preparedness response plan that considers risks of exposure, and incorporates recommendations from sate local federal health agencies, and communicate this plan to employees. Employers should also implement procedures to identify and isolate potentially infectious individuals, and implement good hygiene and infection control (hand washing, cleaning, disinfecting, stay at home).
With new recommendations concerning use of masks and face coverings in public place, employers need to be careful concerning employees voluntarily wearing masks and face coverings. OSHA has numerous requirements applicable to the use of N95 masks, including a written respirator program, fit testing, and medial examinations. If employees want to voluntarily wear non-N95 face coverings, including surgical masks, no OSHA respirator requirements apply to use of such masks or face coverings.
Thursday, April 16th, 2020
VOSH has received more than 200 complaints related to coronavirus, specifically complaints of employers providing insufficient precautions or protections for workers. VOSH investigators are responding to these complaints by contacting employers and requesting a written response setting forth the steps taken to protect workers. Employers who fail or refuse to respond to a VOSH request can expect an onsite inspection.
Remember, VOSH is also an employer, so it is taking reasonable steps to keep its investigators safe and healthy. Federal OSHA has a team investigating these complaints nationally. VOSH is currently investigating complaints remotely. We expect that VOSH investigators will only visit an employer that either does nothing or does not respond. Employers who are contacted by VOSH should respond in writing, and post the response. VOSH is currently doing fewer programmed inspections, fewer onsite inspections, and more outreach by phone, but will be responding in person to fatalities and catastrophes.
If VOSH contacts you concerning a complaint, and you need assistance, you can contact:
Wednesday, April 15th, 2020
Social distancing has slowed the spread of the pandemic into many parts of Virginia, but the importance of maintaining both a safe workplace and positive employee morale remains a challenge. In anticipation of the day when an employee reports that he or she has tested positive for COVID-19, employers need to have a plan.
Here are some suggested practical measures to be considered as part of your plan:
1. Continual Learning: Everyone is overwhelmed with the volume of information about different aspects of the pandemic, and sadly much of it is anecdotal or rumor and is unreliable. It is important to develop a system that ensures that someone at the company is checking the websites maintained by the CDC and the Virginia Department of Health (“VDH”) on a daily basis as new and updated information is regularly released as more information is known. Keeping up-to-date on the latest recommended safety precautions is essential, particularly as we head into a phase where certain restrictions may be lifted.
2. Use Your Local VDH District Office: The VDH personnel are a great resource and they have access to the latest information and other resources that may be useful. A directory of the VDH district’s contacts is located here.
3. New Protocols for Quarantine and Isolation: On April 9, VDH issued a new protocol which lays out the steps that employers should take in evaluating how long a quarantine or self-isolation and the steps to be taken to allow a return. The protocol is here. Similarly, on April 8, 2020, the Director of the CDC announced that its interim guidance for workplaces had been modified for employees working in the Critical Infrastructure business. View here.
4. Contact Tracing & Follow-Up: Once an individual has tested positive, the VDH works with the affected employee to identify all persons with whom she/he had been in close contact (within 6 feet for 10 minutes or more) as part of its contact tracing obligations. View here.
While the VDH will be doing its own contact tracing, the employer must do its own, and act quickly once it becomes aware that a worker who had recently been in the workplace has tested positive. In addition to the employee, supervisors may need to be interviewed and access logs or security footage reviewed. Employees who had close contact with the employee/patient over the last several days should be sent home. Those third parties who also had close contact must be contacted as well. In recent interim guidance, the CDC indicates that it is especially important for employers to identify those having close contact with an infected individual is the 48 hours before the employee became symptomatic. https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html.
Once employees who were in close contact are told to self-isolate, a system should put in place to ensure each one is contacted daily to determine their wellbeing and assess whether any of them have developed symptoms. It is important to keep VDH informed of your steps as VDH may want to be involved in any high-risk contacts and they may have input into the need for quarantine. Keeping records of these efforts will be important in determining whether an OSHA incident report will be required.
5. Workforce Communications: If there is a positive test result employees are going to respond with a range of emotions and there is likely to be a lot of misunderstanding. Involving the VDH as the local experts will help give your management team credibility and a measure of assurance that you are giving your employees the most accurate information possible, while at the same time protecting the confidentiality of the individuals involved. Beyond reinforcing best practices for personal wellness (hand washing, staying at home if they feel ill and maintaining good social distancing) your company may want to implement additional pre-shift checks, such as temperature checks. It is also important in this context that management be alert to employees harassing or mistreating coworkers out of fear. As the EEOC has recently reminded everyone, federal laws still apply in this context.
6. Privacy Concerns: All of the health information of your employees is confidential and must be treated like other medical information. You should expect that coworkers will, at times, be insistent on knowing who tested positive, but under federal law an employer is not allowed to reveal the medical information or diagnosis of any individual employee, even during the pandemic.
To head off these questions, it is important to emphasize and reinforce the importance of the company’s obligation to maintain confidentiality, and at the same time reassure the workforce that the company is taking all steps possible to reduce any exposure in the workplace. When contacting an employee about a possible “close contact,” it is essential that the name of the infected employee not be used or confirmed. Simply say, something to the effect of “an exposure may have occurred in your work area and in an effort to be as safe as possible, we are asking you to stay at home for the next several days or until further notice.”
7. Clean and Disinfect: In addition to identifying close contacts, the company needs to determine where the employee worked, vehicles or equipment that the employee used, did the employee spend time in a breakout or meeting room, etc. All areas of the workplace where the employee spent time should be closed until they receive a very thorough cleaning, and then a subsequent layer of disinfectant. Cleaning without disinfectant does not comply with CDC guidance. The CDC has specific guidelines on how to conduct this kind of workplace cleaning and they should be followed strictly.
Tuesday, April 14th, 2020
On April 10, 2020, OSHA issued a memorandum offering interim guidance to its safety and health officers for enforcing the requirements for the recording of occupational illness related to coronavirus. In this memorandum, OSHA confirmed that COVID-19 is a recordable illness under OSHA’s record keeping requirements. If an employee tests positive for coronavirus, it is a recordable illness if it is “work related” and it involves one or more of the general recording criteria (medical care beyond first aid, days away from work, etc.).
Employers in healthcare industry, emergency response (emergency medical, firefighting, law enforcement) and correctional institutions must make work-relatedness determinations.
OSHA recognized that it may be very difficult to determine if a case of COVID-19 occurring in other industries is “work related.” OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except:
1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
If you must record a COVID-19 case, per the memorandum, the employer is required to refrain from entering the employees name in the OSHA Form 300 if the employee voluntarily requests that his or her name not be entered in the log.
Remember, an employer must report to OSHA if employee has been hospitalized due to occupational illness (potentially COVID-19, if “work-related”). In that case, hospitalization must be reported to OSHA within twenty-four (24) hours, or a fatality within eight (8) hours.
Sunday, April 12th, 2020
Small businesses are jumping at the opportunity to obtain loans under the Federal Paycheck Protection Program (PPP). The CARES Act provides $349 Billion for PPP loans, and the Trump administration had requested an additional $250 Billion in funding to the support the program. As of April 7, lenders had already lent $70 Billion of the funds committed to the program. However, there was some initial confusion concerning which businesses qualify for PPP loans. Under the SBA’s initial guidance, there was confusion as to whether small businesses needed to have less than 500 employees and meet any applicable revenue caps to be eligible borrowers in the PPP: Treasury Eases Construction Firms’ Path to COVID-19 Paycheck Protection Loans.
This week the Department of the Treasury and the Small Business Administration subsequently clarified that small businesses “can be eligible borrowers even if they have more than 500 employees, as long as they satisfy the existing statutory and regulatory definition of a “small business concern” under section 3 of the Small Business Act, 15 U.S.C. 632. A business can qualify if it meets the SBA employee-based or revenue based size standard corresponding to its primary industry. Go to www.sba.gov/size for the industry size standards.” The SBA also noted that “additionally, a business can qualify for the Paycheck Protection Program as a small business concern if it met both tests in SBA’s ‘alternative size standard’ as of March 27, 2020: (1) maximum tangible net worth of the business is not more than $15 million; and (2) the average net income after Federal income taxes (excluding any carry-over losses) of the business for the two full fiscal years before the date of the application is not more than $5 million:” Department of Treasury PPP FAQ.
With the revised guidance, more contractors and other small businesses will qualify for PPP loans. Hopefully the Trump administration and Congress will reach an agreement to add $250 Billion in funding to the PPP. If you have not already done so, contact your lender concerning a PPP loan.
Friday, April 10th, 2020
On April 8, 2020, Director Robert Redfield announced at a White House press briefing that the CDC was modifying it previous Guidance in order to allow workers in Critical Infrastructure businesses who had been exposed to the coronavirus to return to work if they did not have symptoms of the illness. Prior guidance had been that any worker exposed to someone who tested positive for COVID-19 should self-quarantine for fourteen (14) days.
The new Guidance can be found here, and the CDC has also issued a pdf summarizing this new approach for some workers.
Director Redfield made clear this change was not a wholesale waiver of the prior guidance and he strongly urged workers not to remain at work if they feel sick, and to refrain from congregating in crowded places, such as breakrooms.
Under the revised Guidance, Critical Infrastructure workers who have had an exposure but remain asymptomatic are permitted to return to work, but the CDC says employers and employees should adhere to the following practices before and during the work shift:
- Pre-Shift: An employer should measure the employee’s temperature and assess symptoms prior to letting him or her start work. It is best if temperature checks occur before entering the facility.
- Daily Monitoring: So long as a temperature or other symptoms do not develop, an asymptomatic employee should self-monitor during the workday under supervision of the employer’s occupational safety manager.
- Masks Required: An employee should always wear a mask while in the workplace for at least fourteen (14) days after the exposure. An employer may want to pilot test the use of face masks to ensure they do not interfere with work assignments. An employer can issue the face masks or can approve the employee’s supplied cloth face coverings in the event of shortages.
- Physical Distancing: The employee shall maintain at least six (6) feet and practice social distancing as work duties permit.
- Breaks/Food: Breaks should be staggered so that employees do not congregate in the breakroom and do not share food or utensils.
- Headsets/Personal Gear: Employees in general should not be sharing headsets or other objects that are near the mouth or nose. For asymptomatic employees who work, this is especially important.
- Increased Frequency of Cleaning Commonly Touched Surfaces: All areas such as offices, bathrooms, common areas and shared electronic equipment must be cleaned and then disinfected, and it is suggested that these steps be taken more than once per day or per shift.
- Environmental Conditions. An employer should consider whether it is possible and advisable to increase the amount of air exchanges in the common work areas and other rooms employees share.
- Prompt Action if Sick Employee: If the employee becomes sick during the day, he or she must be sent home immediately.
- Response and Analysis: If and when an employee is sent home, information should be compiled on who had contact with the ill employee during the time the employee had symptoms and at least two (2) days before the employee’s symptoms and what other employees at the facility with close contact (within six (6) feet) of the employee during this time period should be considered exposed.
- Cleaning and Disinfecting the Facility: The employer will need to take prompt action to clean and disinfect all areas of the facility where the employee has worked over the past week. See the latest Guidance for Cleaning and Disinfecting the Workplace in this context.
Each business with Critical Infrastructure workers will need to evaluate its own circumstances to determine how this change in guidance impacts how it responds to this evolving situation, and whether it can comply with the practices outlined above. Moreover, as the pandemic continues to impact business operations and workplaces, all employers are reminded that when implementing any changes in protocols or safety procedures it is essential to check the CDC website for the most current guidance and Virginia Health Department rules to ensure compliance.
Friday, April 10th, 2020
On April 9, 2020, more than 500 contractors and 31,000 employees participated in a Safety Stand Down supported by the AGC of America. The purpose of the Safety Stand Down was to provide these employers the opportunity to focus upon the coronavirus related health and safety measures in work places and on jobsites. As Brain Turmail, a spokesman for the AGC of America put it “You need to appreciate that your ability to continue operating construction projects is dependent upon ensuring that you are protecting your workers and, through that, protecting the public from the spread of the coronavirus. There’s no margin for error here.”
AGC Stand Down Emphasizes Coronavirus Safety Measures
OSHA guidance
Stay safe and healthy out there.
Thursday, April 9th, 2020
The COVID-19 crisis has affected virtually every aspect of business throughout the world, and the insurance industry is no exception. Quarantines, government ordered shutdowns and restrictions, sick employees and sick customers are just a few of the occurrences that will lead business owners, sooner or later, to ask “Do I have coverage for that?” As is true virtually every other time that question is asked, the answer is, “It depends.”
There are two primary factors that control the answer: (1) the specific facts of your particular situation and (2) the specific language of your policy. This renders the making of predictions particularly difficult, for not only are the potential factual scenarios virtually infinite, many – but not all – insurers reacted to previous flu pandemic threats in the early 2000s by including language in their policies purporting to exclude infectious diseases from some – but not all – coverages.
For example, a liability claim based upon allowing a customer or patron to be exposed to the virus may be covered by your commercial general liability policy, but some policies may have language that eliminates coverage if an “insured” transfers a “communicable disease” to another person. With regard to workers compensation, an employee with COVID-19 will likely not be entitled to benefits unless he or she can prove a direct relationship between his or her employment and contracting the illness, which may be very difficult to do. As for business interruption claims, many (but again not all) policies will exclude coverage if the triggering event was caused by a “virus.” However, the applicability of this exclusion is not so clear if, for example, the triggering event is a government shutdown ordered to prevent the spread of a virus.
Whether general liability or business interruption, we know you have questions, and we’re here to help. Contact one of our insurance attorneys today. We also post updates on important developments here: www.gentrylocke.com/coronavirus.
