COVID-19 Legal Resources

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Virginia’s Department of Labor and Industry Enacts COVID-Related Workplace Safety Standards

On July 15, 2020, Virginia became the first state in the country to adopt an Emergency Standard for COVID-Related Workplace Safety, which applies to all employers in the Commonwealth.

Read the summary of REQUIREMENTS FOR EMPLOYERS AND WHAT EMPLOYERS SHOULD DO NOW from our employment law group.

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Applying innovative thinking to the CRISIS at hand

The uncertainty presented by the novel coronavirus pandemic places you and your businesses in situations you have never faced before. New questions come up each day. We look beyond traditional solutions to achieve favorable outcomes, whether in structuring business transactions, litigating disputes, or overcoming regulatory hurdles. We stand ready to guide you and the companies you lead through these uncertain circumstances as our attorneys have done for nearly 40 years.

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COVID-19 Hot Topics

Novel questions are arising daily under this new set of circumstances.

How do shelter in place orders affect my business?

Every shelter in place (or stay at home) order has an exception for essential businesses such as grocery stores, health care services, and gas stations. However, while the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) gave states an outline of what may qualify as an essential business, there are inconsistencies between each state’s orders. As for Virginia, on March 30, 2020, Virginia Governor Ralph Northam issued a temporary stay at home order through Executive Order 55.

Executive Order 55 orders that all individuals in Virginia remain at their place of residence, except as provided by Order 55 and Executive Order 53. Executive Order 53 required many businesses classified as non-essential to close. However, businesses offering professional services, rather than retail services, may remain open under the Orders, but should utilize teleworking as much as possible and must adhere to social distancing recommendations. Click here for frequently asked questions about Executive Order 53. Executive Order 55 remains in effect until June 10, 2020, unless amended or rescinded by further executive order.  

For local counsel regarding the best course of action for your Virginia business, contact: Peter L. Henderer. 

For state-by-state, local, and jurisdictional updates, see ALFA International's U.S. Covid-19 Quick Reference Guide.

What should an employer do if they are dealing with a confirmed case of COVID-19?

First, be sure to maintain the confidentiality of the employee with the confirmed COVID-19 infection. Second, ask the employee to identify any individual whom they have been in close contact (approximately six feet) with in the past 14 days. Best practice is to have these identified individuals self-quarantine at home for 14 days to minimize the infection spreading. Click here for CDC recommendations for non-healthcare businesses with suspected or confirmed COVID-19 cases.

For specific information about COVID-19 and confidentiality in the workplace, contact Sam Otero.

Every shelter in place (or stay at home) order has an exception for essential businesses such as grocery stores, health care services, and gas stations. However, while the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) gave states an outline of what may qualify as an essential business, there are inconsistencies between each state’s orders. As for Virginia, on March 30, 2020, Virginia Governor Ralph Northam issued a temporary stay at home order through Executive Order 55.

Executive Order 55 orders that all individuals in Virginia remain at their place of residence, except as provided by Order 55 and Executive Order 53. Executive Order 53 required many businesses classified as non-essential to close. However, businesses offering professional services, rather than retail services, may remain open under the Orders, but should utilize teleworking as much as possible and must adhere to social distancing recommendations. Click here for frequently asked questions about Executive Order 53. Executive Order 55 remains in effect until June 10, 2020, unless amended or rescinded by further executive order.   

What rights and obligations do commercial landlords and tenants have?

Landlords and tenants must review their leases to understand their rights and obligations. While some cities are passing laws banning landlords from evicting their tenants for nonpayment of rent, this appears to only apply to residential evictions at this time. Accordingly, it is prudent for landlords and tenants to communicate during these uncertain times. If tenants are requesting rent relief, landlords should work with tenants to find a solution that is agreeable for both parties.  

Which employees are eligible for benefits under the Families First Coronavirus Response Act?

The Emergency FMLA is available to employees who have been employed for at least 30 calendar days. The usual FMLA requirements that the employee has been employed for a year, worked for at least 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius would not apply to the Emergency FMLA leave.

The Paid Sick Leave Act requirements apply to all employees employed by covered employers.

For expertise about your company's obligations under the Emergency FMLA, contact Sam Otero.

Is leave “job protected” under the Families First Coronavirus Relief Act?

Yes, the FFCRA offers job protection. However, the FMLA’s requirement that an employee be restored to the same or equivalent position after leave does not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave.

For other employers, the employer must make reasonable efforts to restore the employee to the same or an equivalent position, and if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started.

For expertise about your company's obligations under the FFCRA, contact Sam Otero.

Does my business face liability if an employee becomes sick with Covid-19 or an infection is traced back to the business’ premises?

Business and government are reacting to the challenges posed by coronavirus and have little experience in dealing with such a situation.  Employers should review the guidelines and practices posted by the CDC and implement reasonable measures to decrease the potential for coronavirus spreading in the workplace.  It is unknown if Plaintiff lawyers will seek to impose liability on employers for damages caused by coronavirus.  We recommend consulting with a McCandlish Holton attorney to answer your concerns and for guidance in establishing workplace policies to protect your employees and your business from both coronavirus infections and future liability. 

For expertise specific to your company's potential liability, contact Cam Beck.

What will constitute the burden of proof in a coronavirus workers’ compensation claim?

Coronavirus is likely to be considered “an ordinary disease of life.” An ordinary disease of life under Va. Code §65.2-401 is a disease that the public is exposed to outside of employment. In such a claim, the claimant’s burden of proof is much higher as they are required to prove their case by clear and convincing evidence.  As COVID-19 becomes more widespread across Virginia, as is anticipated, it will become increasingly difficult for employees to establish that their coronavirus did not result from causes outside of their employment. Without the ability to eliminate potential outside causes of the disease, the claimant will not be able to establish a compensable ordinary disease of life.

For expertise specific to your company’s workers’ compensation liability, contact Amanda Tapsott Belliveau.

Could US-based companies with operations in the European Union be held liable for Coronavirus-related privacy breaches under the GDPR?

In the USA, federal courts have generally found discovery interests in US litigation override the GDPR compliance obligations of US litigants with EU operations. With this as a backdrop, it is difficult to imagine GDPR obligations on a US employer with EU data subject employees in the US, or in the EU, superseding US law concerning public health motivated inquiries of an employer of its employees in the US.  This is especially so for inquiries reasonably related to the employer’s interests in the health of its own work force, or its responsibilities as a broader participant in the public health effort.  Put differently, while a US employer might have to confront GDPR privacy violation claims if called on the carpet in the EU for actions taken in the US as to an EU data subject working in the US, or in its EU operations, it is difficult to conceive a US employer prosecuted, much less successfully, in the US under the GDPR for health related inquiries alleged to violate the GDPR.  If discovery interests override GDPR interests, most certainly public health interests do. 

For expertise specific to your company, contact Mike Gladstone.

COVID-19 Response Team Leaders

Our attorneys can be contacted directly by clicking below, or through our reception by calling 804-775-3100 during office hours.

Civil Litigation & Liability  D. Cameron Beck

Banking and Creditor’s Rights – C. Walker Terry

General Commercial  Mike H. Gladstone

Labor & Employment  Samantha Stecker Otero

Local Counsel - Peter L. Henderer

Insurance Coverage  Lex Dunn

Immigration - Mark Rhoads

Real Estate Leasing & Financing - Sam Haisley

Workers Compensation Amanda Tapscott Belliveau 

Firm Operations Plan

We are currently maintaining normal office hours, taking active steps to keep our employees and clients safe and healthy.  Should circumstances require us to close our office, we will continue operations with attorneys and staff working from home.  We plan to continue serving you with as little disruption as possible during this difficult and uncertain time.

Our practice group leaders are laser-focused on monitoring new developments and business concerns.

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