The Library

The 2020 Virginia General Assembly enacted significant changes to Virginia’s most widely used exemption statutes in Title 34. In 2020 Virginia House Bill 790, which becomes effective on July 1, 2020, the legislature expanded both the amount of and procedure for claiming what is commonly referred to as the “Homestead Exemption” by simplifying the procedure for debtors claiming those exemptions in a pending bankruptcy case. Currently the Homestead Exemption under section 34-4 of the Code of Virginia permits an individual (a “householder”) to exempt from creditor process real and personal property up to $5,000 in value (or $10,000 in value […]

Effective July 1, 2020, Virginia employers with 5 or more employees must be prepared to address and provide pregnancy-related accommodations to its employees. Similar to the Americans with Disabilities Act, the new law requires Virginia employers to engage in a timely, good faith interactive process to determine if a reasonable accommodation can be provided to an employee with limitations related to pregnancy, childbirth, or related medical conditions, specifically including lactation. This process starts once an employee requests an accommodation related to pregnancy, childbirth, or a related medical condition and/or notifies the employer that the employee is pregnant. Additionally, as further […]

Change is coming July 1, 2020. Do you know how Virginia’s new laws impact your business? We do.   Virginia Values Act     Virginia Clean Economy Act   Virginia Whistleblower Protection Law   Virginia Human Rights Act   Virginia Business Returns to Work      

A new Executive Order signed by President Donald Trump is designed to ease regulatory enforcement on businesses amidst the COVID-19 pandemic. While helpful, this executive action falls short of granting any new liability protections to businesses, and leaves that action to Congress, which is divided over whether to grant legal protections from lawsuits.  It also does not apply to actions by state regulatory agencies. The Order, signed Tuesday, May 19, encourages federal agencies to rescind, modify, waive, or provide exemptions to regulations and requirements that may slow economic recovery and discourages federal enforcement actions for businesses acting in reasonable good […]

As companies start to reopen and more workers are brought back to the workplace, the federal Occupational Safety and Health Administration (“OSHA”) changed its position and is now requiring businesses to be proactive in determining how workers who test positive for COVID-19 became exposed. The new guidance released on May 19 reversed OSHA’s April directive and now requires all employers with 11 or more employees who must maintain OSHA injury and illness logs to determine if a worker’s COVID-19 case is job-related.[1] This new Guidance can be found here. This requirement applied initially only to health-care employers, emergency-response providers, and […]

Until further notice, we request visitors to our offices cooperate with our efforts to reduce the health risks associated with the current COVID-19 crisis: Please call ahead and schedule all visits to our office. Prior to your appointment, please let us know if you, your client, or a member of your party: (1) have become ill with symptoms associated with COVID-19 (e.g. fever, shortness of breath, coughing, upset stomach, body aches), or (2) have been exposed to or have come into close contact with someone who has become ill with symptoms associated with COVID-19 or who has been diagnosed with […]

On May 13, 2020, the Department of Treasury issued FAQ #46, which provides a safe harbor for Paycheck Protection Program loans with an original principal amount of less than $2 Million. Below is FAQ #46 in its entirety: 46. Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request? Answer:  When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.”  SBA, in consultation with the Department of the Treasury, has determined that the following safe […]

With employers experiencing unexpected shutdowns and facing potential mass layoffs due to the COVID-19 pandemic, the Department of Labor (“DOL”) recently issued COVID-19 guidance for employers regarding the federal Worker Adjustment and Retraining Notification (“WARN”) Act.  The FAQs can be found here. The WARN Act is a federal statute that requires covered employers to provide employees 60 days’ advance written notice before closing a plant or conducting a mass layoff.  The WARN Act applies to employers  that employ 100 or more full-time employees (not counting workers who have worked fewer than 6 months on the job).  Covered employers, unless protected […]

As this year began, the nation’s attention was riveted on the impeachment proceedings triggered by a whistleblower complaint. Competing efforts to protect and “out” the whistleblower were on full display in the political arena. Fallout was not surprising, and recently the Inspector General who received and forwarded the whistleblower’s complaint was terminated. This article is not a political one.1 We start here only because it illustrates the increasing frequency of whistleblower complaints, and the power of such allegations once they are made public. These realities are now much more acute for the thousands of businesses which have received some portion […]

On Monday, April 27, 2020, Lynchburg Circuit Court Judge F. Patrick Yeatts issued an order granting a temporary injunction that allowed SafeSide Lynchburg to reopen its indoor shooting range. The owners of SafeSide Lynchburg, joined by the Virginia Citizens Defense League, Gun Owners of America, and the Association of Virginia Gun Ranges filed suit against Governor Northam challenging the inclusion of indoor shooting ranges as businesses ordered closed by Executive Order 53. Judge Yeatts enjoined and prohibited the Commonwealth from  enforcing the prohibition on public access to SafeSide Lynchburg’s range as set forth in paragraph 4 of Executive Order 53, […]

Today, Friday, April 24, 2020, President Trump signed into law the “Paycheck Protection Program and Healthcare Enhancement Act,” providing an additional $484 Billion in relief, with a focus on small businesses and health care providers. Although it is hard to believe, it was less than a month ago that President Trump signed into law the “CARES Act,” a $2 Trillion relief package. The CARES Act contained $349 Billion in funding for the Paycheck Protection Program and an additional $10 Billion in SBA funding for the Economic Injury Disaster Loan Program. These funds were quickly depleted, with the need far outpacing […]

On April 21, 2020, OSHA issued a list of tips for Construction industry employers to follow so that they can reduce the risk of exposure to the coronavirus on the jobsite. That list can be viewed here. Many items on the list are familiar at this stage of the pandemic, including allowing employees to wear masks during work, continuing to use normal control measures including PPE, avoiding physical contact and practicing social distancing where possible, and cleaning shared tools and equipment. The full list of OSHA tips includes: Encourage workers to stay home if they are sick. Allow workers to […]

RICHMOND, Va. (April 23, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Erin Harrigan has joined as a partner in the Criminal & Government Investigations practice. Harrigan served as Assistant United States Attorney in the Western District of Virginia, based in Charlottesville, where she was the Lead Prosecuting Attorney for the Organized Crime & Drug Enforcement Task Force (“OCDETF”) and was nationally recognized for her work with the OCDETF National Director’s Award. As a federal prosecutor, Harrigan also prosecuted and investigated public corruption, regulatory offenses, human trafficking and fraud cases of local origin and […]

LYNCHBURG, Va. (April 23, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Andrew O. Gay has rejoined the firm in its Lynchburg, Virginia office. Gay will work in the firm’s commercial litigation practice group, where he will focus on assisting clients with complex construction contracts and construction litigation. “Andrew grew up working in the construction industry, so he understands firsthand the processes and challenges that contractors and developers face. He’ll be a terrific asset to our construction, road-building, and I-81 practice,” said Managing Partner, Monica T. Monday. Gay has significant experience in construction claim […]

Unfortunately, the current pandemic state has given rise to various forms of hoarding of certain medications and other essential medical supplies. As reports about potential stockpiling of hydroxychloroquine and chloroquine by physicians began to surface, the Department of Justice announced that it would be investigating instances of this type of activity. In late March, US Attorneys in Ohio issued a public statement indicating their commitment to address situations where physicians who are prescribing anti-viral medications such as hydroxychloroquine to healthy friends or associates because there is some anecdotal evidence the drugs could treat the novel coronavirus. All US Attorneys’ Offices […]

Federal and state prosecutors are casting a wide net for potentially fraudulent and illegal activity associated with the COVID-19 pandemic, which could catch businesses and industries, who are not accustomed to such scrutiny, off guard. According to recent public pronouncements from federal and state officials, investigations into fraud, bribery, kickbacks, price-gouging, and supply-chain practices all will receive heightened attention in the coming weeks and months. The nature and scale of the coronavirus outbreak means many industries not typically in the glare of federal prosecutors or state Attorneys General could be subject to criminal investigations. What many businesses may consider to […]

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 […]

One month after issuing “15 Days to Slow the Spread,” the first national coronavirus guidelines, President Donald J. Trump and the Federal coronavirus task force on Thursday issued “Guidelines for Opening America Again.” The Federal guidance is intended as direction to state Governors who must now make decisions on if and win to lift various lockdown and stay-at-home orders that have closed schools, shuttered businesses, and left many wondering what’s next? In Virginia, Governor Ralph Northam recently extended his Executive Order closing entertainment businesses and severely limiting other non-essential retail establishments until May 8, 2020.  His “stay-at-home” order is in […]

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 […]

The Equal Employment Opportunity Commission (“EEOC”), like other federal agencies, is releasing new guidance on a periodic basis to address issues arising during this pandemic. On April 9, the EEOC updated previously issued technical guidance adding twelve (12) new questions and the answers. The full technical guidance, including this recent update, which is in the form of Questions and Answers addresses issues that arise under the Americans with Disability Act (“ADA”) and the Rehabilitation Act of can be found here. Several points maybe of significance: A.2 Symptom Questions Permitted. Despite ADA limitation on medical inquires, employers are permitted to ask […]

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 […]

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 […]

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 […]

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 […]

ROANOKE, Va. (April 13, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that 20 of the firm’s attorneys were selected for inclusion in the 2020 Virginia Super Lawyers® lists. Attorneys were nominated by their peers and recognized for their outstanding professional achievement in several legal practice areas including appellate law, business/corporate law, business litigation, construction litigation, criminal defense, employment law and litigation, health care, intellectual property, land use and zoning, personal injury, and professional liability. Seven of the 20 were elected Virginia Super Lawyers Rising Stars—attorneys who are 40 years old or younger, or in […]

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 […]

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 […]

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 […]

On April 6th and April 7th, the Department of Treasury and Small Business Administration issued additional guidance for the Paycheck Protection Program in the form of “Frequently Asked Questions.” Importantly, these FAQs provide additional clarity on some key terms, and in some respects depart from prior guidance issued by the Department of Treasury and SBA, returning more closely to the original text of the Paycheck Protection Program outlined in the CARES Act. Among the FAQs: The exclusion for employee compensation in excess of $100,000 applies only to cash compensation The exclusion in compensation in excess of $100,000 (annualized) applies only […]

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 […]

Initial Guidance and Form Application published by Department of Treasury and the Small Business Administration Late on Tuesday, March 31, 2020, the Department of Treasury and the Small Business Administration issued initial guidance related to the Paycheck Protection Program. Included in this guidance is the form application for borrowers to use when applying for a covered loan under the Paycheck Protection Program. When can borrowers begin to apply for Paycheck Protection Program covered loans? The guidance from the Department of Treasury states that lenders participating in the Paycheck Protection Program will begin processing loan applications as soon as this Friday, […]

While Virginians are living under Governor Northam’s executive orders, staying home and limiting unnecessary contact with others, Virginia construction projects are proceeding. With the progress on these projects, deadlines for perfecting and enforcing mechanic’s liens remain. The question then arises whether the recent orders by the Supreme Court of Virginia affect the deadlines for perfecting and/or enforcing mechanic’s liens. Having reviewed these orders, we recommend that contractors, subcontractors, and material suppliers proceed to record and enforce their mechanic’s liens as normal. Better to be safe than to risk losing the benefit of a lien. As a bit of background, on […]

Paycheck Protection Program: The following summary of Sections 1102 and 1106 of the CARES Act related to the Paycheck Protection Program should be read in connection with the following: 4/7/2020 Update: Paycheck Protection Program – Additional Guidance and $250 Billion in Additional Funds Requested 4/3/2020 Update: Interim Final Rule Paycheck Protection Program 4/1/2020 Update: Paycheck Protection Program Update Small Business Paycheck Protection Program and Loan Forgiveness Within the nearly 900 pages that outline the “Coronavirus Aid, Relief, and Economic Security Act” (the “CARES Act”) is the “Keeping American Workers Paid and Employed Act,” which contains the Paycheck Protection Program and […]

Late in the day on April 2, 2020, the Department of Treasury published the Interim Final Rule for the Paycheck Protection Program on its website as well as an updated application. The Department of Treasury has previously stated that covered loan applications under the Paycheck Protection Program would begin to be processed by participating lenders as early as today, Friday, April 3, 2020. Many lenders have expressed concern over potential liability exposure for lenders participating in the Paycheck Protection Program as well as with the lack of specificity and guidance included in the text of either the CARES Act or […]

Written by Todd A. Leeson and Kelsey M. Martin, Gentry Locke Attorneys March 27, 2020 Last night, the Department of Labor Wage and Hour Division (WHD) released its second round of FAQs [#15–37] addressing the Families First Coronavirus Response Act. The FAQs can be found here. A few important takeaways: Employers are advised to require employees to submit documentation to verify their need for emergency paid sick leave or extended FMLA leave [FAQ #16]. Leave can only be used intermittently for child care reasons and when the employer consents to such intermittent leave [FAQs #20–22]. Employees who are furloughed or […]

Written by Todd A. Leeson and Kelsey Martin, Gentry Locke Attorneys March 25, 2020   Today (March 25, 2020) the Department of Labor Wage and Hour Division (WHD) released the Notice outlining employee rights under the Families First Coronavirus Response Act that covered employers are required to post.  WHD also published a helpful “Frequently Asked Questions” (FAQ) document regarding the required posting.  The Notice and FAQ can be found here (scroll down to Posters section). https://www.dol.gov/agencies/whd/pandemic The Notice must be posted on or before April 1, 2020, in a conspicuous place on the employer’s premises.  With many employees teleworking during […]

We recently wrote about COVID-19 related delays, and providing notice of such delays, here. When reviewing the delay clauses in your contracts, you need to pay attention for the delaying events that are excusable, as well as those that are compensable. The Executive Director and Senior Counsel for ConsensusDocs (Brian Perlberg, Esq.) recently pointed out that Section 6.3.1(j) of the “ConsensusDocs 200 Owner/Constructor Agreement with General Conditions” specifically allows for delays that are “reasonably due to epidemics.” See: https://www.consensusdocs.org/consensusdocs-addresses-coronavirus-delay-risk-explicitly-other-standard-documents-do-not/?utm_source=informz&utm_medium=email&utm_campaign=informz_email&_zs=ICd0d1&_zl=n51d6 Mr. Perlberg also pointed out that although the AIA documents, and other standard construction contract forms, do not expressly mention epidemics […]

With multiple states adopting lockdown orders to combat the COVID-19 pandemic, construction projects are being impacted. Although many states, including Virginia, have considered the construction industry, construction material suppliers/retailers to be essential businesses that are not affected by lockdown or shelter in place orders, construction projects are being impacted, and COVID-19 lockdown related delays are all but inevitable. Recent reports suggest that the supply chains for construction materials have been impacted by COVID-19 lockdowns in multiple countries. See: https://archpaper.com/2020/03/coronavirus-construction-supply-chain/. Corona virus related lockdowns are resulting in closed factories, shipping delays, and unavailability of workers in both the factory and in […]

Virginia Governor Ralph Northam added the Commonwealth to the growing ranks of states with so-called “stay-at-home” orders, issuing Executive Order 55 in the latest effort to battle the spread of the coronavirus. Executive Order 55 is the furthest use of the governor’s executive power, but relative to his previous actions is only an incremental step that moves from encouraging people to stay home to ordering such action. The governor strongly encouraged Virginians to stay home as he announced the latest action, but in reality there is little difference from his previous actions. You should stay home unless your activity is […]

In addition to the excellent summary of the CARES Act prepared by our colleague, Christen Church, the AGC of America has prepared its own summary of the CARES Act, which specifically addresses the impact of the act on the construction industry. A link to the AGC of America’s summary can be found here.  

In the challenging times of COVID-19 related lockdowns and stay at home orders, the occasional good news story is a welcome departure from the daily gloom bombarding your email inbox and the newspaper pages. The Roanoke Times ran an article concerning the status of outdoor construction projects in the region. The article quotes Gordon Dixon, CEO of the AGCVA, and a friend of ours, who reports that as of this week, the AGCVA has not received reports of significant shutdowns. Mr. Dixon also noted that the situation is changing daily, and that contractors remain concerned about the potential unavailability of […]

Written by Todd A. Leeson and Kelsey Martin, Gentry Locke Attorneys March 25, 2020 On March 24, 2020, the U.S. Department of Labor Wage-Hour Division (WHD) published its “first round” of guidance regarding the new Families First Coronavirus Response Act (“FFCRA” or the “Act”). The Act was signed into law on March 18, 2020. As you likely know by now, the Act basically provides that private sector employers with 499 or fewer employees must give eligible employees up to 80 hours of emergency paid sick leave (EPSL), and up to 12 weeks of emergency paid FMLA leave (EFLMA) for defined […]

Virginia Governor Ralph Northam has continued to provide near daily updates on Virginia’s response to the coronavirus, with the latest action coming in a sweeping Executive Order on March 23 strictly curtailing retail activity. Executive Order #53, in addition to closing all K-12 public schools for the remainder of the year, bans all gatherings of more than 10 people, strictly limits restaurants and bars to carry-out or delivery only, closes a number of “non-essential” businesses, and places further restrictions on other retail establishments. The order is effective for the next 30 days, until April 23, 2020. But perhaps more importantly […]

In the short time since the World Health Organization’s naming of the COVID-19 virus and its declaration of the spread of the virus as a pandemic, the social and economic systems that Americans have come to know have experienced seismic changes. For the foreseeable future, those swift changes are and will continue to affect how financial institutions and other business entities that extend credit to their customers conduct their business. It is important that those changes are met with equally swift recognition by each financial institution and business entity of how the changes are affecting their business and with the […]

The Treasury Department and Internal Revenue Service recently announced that the federal income tax filing due date is automatically extended from April 15, 2020, to July 15, 2020. All the major news outlets are reporting about this COVID-19 emergency extension. However, Virginians should not be lulled into complacency.  Although Virginia has granted a one-month extension for payment of individual and corporate state income taxes, these tax returns are still due May 1. Because the calculation of Virginia income tax is based largely on the computations of federal tax items, it would be impractical to file Virginia tax returns by the […]

The Virginia Employment Commission (VEC) recently issued new guidance regarding the availability of unemployment benefits during the COVID-19 pandemic. As businesses continue to face the possibility of limiting hours and staff, employers may be able to structure furloughs and reduced hours to maximize unemployment benefits to employees. Employees can file for unemployment compensation benefits due to reduction in hours or loss of employment. For claims related to a reduction of hours, the claimant’s gross earnings for the week must be less than the weekly VEC benefit amount. The maximum weekly VEC benefit is $378. Depending on an employee’s earnings, the […]

U.S. SBA Economic Injury Disaster Loan (EIDL) Summary for Small Businesses and Nonprofits The public health emergency resulting from the Coronavirus/COVID-19 pandemic is causing unprecedented challenges to small businesses in many industries. To assist small businesses suffering substantial economic injury as a result of the Coronavirus pandemic, the U.S. SBA is offering small businesses operating in certain designated states, including Virginia, low-interest federal disaster loans for working capital, under the Coronavirus Preparedness and Response Supplemental Appropriations Act recently passed by the U.S. Congress and signed into law by the President. In response to a request from Virginia Governor Ralph Northam, […]

Among the issues employers need to be considering is what steps need to be taken in advance of learning that an infected employee has been in the workplace, and also what its protocols will be if an infected employee has been in the workplace for a period of time prior to discovery. The most current guidance on how to clean and disinfect the workplace issued by the Center for Disease Control and Prevention (CDC) was issued April 1, 2020.  All employers are strongly encouraged to check this website periodically to make sure that you are following the most current guidance. […]