Sullivan Law Group is proud to announce that Ann K. Sullivan has been selected as the 2022 “Lawyer of the Year” for Employment Law – Individuals in Norfolk by Best Lawyers. Based upon peer reviews, the “Lawyer of the Year” designation is reserved for lawyers with the highest overall feedback for a specific practice area and geographic region. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location. Additionally, Ms. Sullivan will be included in the 2022 edition of The Best Lawyers in America in the practice areas of Employment Law – Individuals, Employment Law – Management, and Labor Law – Management. She has been included in The Best Lawyers in America every year since 2008.
A new vaccine mandate announced by the Biden Administration applies to private (non-government) employees who work on-site at federal facilities. The mandate requires that all federal employees and on-site contractor employees either be vaccinated against COVID-19 or face repeated testing, and comply with strict social distancing and masking requirements. The vaccine mandate comes as private employers and government agencies attempt to bring workers back to the physical workplace even as infection and hospitalization rates are on the rise across the country, due largely to the spread of the COVID-19 delta variant.
Under the mandate, fully vaccinated contractor employees who work at federal sites will be required to:
- Submit documentation confirming their vaccination status; and
- Wear a mask indoors if working in a locality with high or substantial transmission rates, in accordance with the Centers for Disease Control and Prevention’s guidance.
Contractor employees who are not fully vaccinated or who decline to confirm their vaccination status will be required to:
- Take weekly or bi-weekly COVID-19 tests and provide evidence of negative tests;
- Wear a mask at all times and socially distance; and
- Be subject to government-wide restrictions on official travel.
Workers who fail to comply with the above requirements will be denied site access.
Currently, federal contractors are being contacted by their contracting agencies about how those agencies will be implementing these requirements. You may have already heard from your agency, or will soon. While all federal agencies must implement these basic requirements, each agency retains discretion with respect to the details of requirements and implementation. These include:
- The date on which the requirements are effective;
- What type(s) of documentation will be acceptable to confirm vaccination status and how they should be submitted to the agency; and
- How often testing will be required (weekly or bi-weekly), whether it will be provided on-site and by whom, what type of testing (antigen or PCR) will be required, and the form in which negative test results must be transmitted to the agency.
If your business currently provides on-site workers under a federal contract, you should:
- Make sure you have designated an individual or team to oversee the process for all impacted contracts and employees and a point of contact for each federal agency with which you have a contract;
- Communicate these new requirements to impacted employees, explaining that the timing and details will be shared once that information is provided by the contracting agencies;
- Assess how these new requirements interact with current state or local mandates and with your own requirements on vaccines, testing, masking, and distancing;
- Determine whether any costs associated with these obligations are billable to the federal agency; and
- Consider federal and state wage and hour law implications with respect to time taken for vaccinations, testing and related expenses.
As a reminder, vaccine mandates are legally permissible and employers are not required to offer a testing alternative (unless an employee has been granted a disability or religious accommodation). Given the potential expense of repeated on-the-clock testing of employees, you may consider implementing a vaccine mandate at least for your on-site workers, if you have not done so already.
As always, we remain committed to helping you navigate the quickly changing COVID-related regulations and laws during these difficult times. Please do not hesitate to reach out if you would like to discuss further.
In order to allow our team to enjoy the warm weather activities and travel opportunities it missed last summer due to COVID, our office will be closed Fridays beginning on July 2, 2021 and continuing through September 6, 2021. Our team of professionals will still be available for new or emergency matters.
The Supreme Court of Virginia recently agreed to hear our client’s appeal of an opinion that it violated Virginia’s Freedom of Information Act (“VA FOIA”.) In the petition for appeal, the Suffolk City School Board argued that one of the violations cited by the trial court is not required by VA FOIA, that the order requiring the Board to take certain actions forever was overly broad and required actions not required by law, and that the award of attorneys’ fees was unwarranted as the plaintiff failed to substantially prevail on her claims as required by statute. Sullivan Law Group is proud to represent the Board in its appeal, as a proper application of VA FOIA balances the public interest with the ability of school boards across the state to serve students and their communities.
Sullivan Law Group successfully assisted a client to obtain a significant reduction in its payoff of financing agreements for CoolSculpting equipment. The financing company denied our client the right to early payoff of the financing agreements, demanding full payment of all principal and interest through the end of term despite early payment. SLG prevailed, arguing that the financing company’s communications had been inaccurate, fraudulent and in violation of both contract law and state regulations, as they misrepresented the nature of the transaction and the right of our client to prepay agreements without penalty.
Augustine Manga, a second-year student at the William and Mary Law School, recently completed an externship with the firm. Ms. Manga participated in client consultations, performed in-depth research, and assisted our attorneys in drafting pleadings at no cost to our clients. The firm continues its tradition of supporting William and Mary students and hiring William and Mary graduates!
Ms. Manga serves on the William and Mary Journal of Race, Gender, and Social Justice and was selected to the school’s Alternative Dispute Resolution Competition Team. She also serves as Secretary of the Black Law Students Association and is a member of the Women’s Law Society. She received her undergraduate degree from the University of Maryland at College Park.
Ann Sullivan has been appointed as a Special Education Hearing Officer by the Virginia Department of Education. As a Special Education Hearing Officer, Ms. Sullivan will preside over administrative hearings involving educational placement and services, as well as the provision of a free appropriate public education. Her selection was based on her previous hearing officer experience as well as her demonstrated concern for protecting the rights and education opportunities for children with disabilities.
Ann Sullivan is just one of a handful of attorneys designated by Virginia Lawyers Weekly as a “go-to” employment lawyer. Nominated by her peers, Ms. Sullivan was selected based upon her long record of accomplishments and expertise in employment law as well as her ability to establish a rapport with clients and her reputation among other lawyers. She and the other selectees will be featured in the April 26, 2021 issue of Virginia Lawyers Weekly.
The federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020 – and with it, certain employers’ obligation to provide emergency paid sick leave and emergency family and medical leave. Congress just extended the tax credit for all employers who voluntarily provide such paid leave through March 31, 2021. The most recently legislation, titled The American Rescue Plan Act:
- Extends the tax credits available for employers who voluntarily provide FFCRA leave to September 30, 2021 with the required documentation.
- Provides that the tax credits are available for paid sick leave and paid family leave provided for these new reasons:
- the employee is obtaining immunization (vaccination) related to COVID-19;
- the employee is recovering from any injury, disability, illness or condition related to such vaccination; or
- the employee is seeking or awaiting the results of a diagnostic test or medical diagnosis for COVID-19 (or their employer has requested such a test or diagnosis).
- Employers who voluntarily provide leave must do so in a uniform manner, without discriminating against certain categories of workers. For example, you may not discriminate against highly compensated employees, full-time employees, or employees with seniority.
- Re-sets the 10-day limit for the tax credit for paid sick leave under the FFCRA beginning April 1, 2021. As a result, an employer could voluntarily provide an additional 10 days of FFCRA paid sick leave beginning April 1, 2021, and would be eligible for a tax credit for doing so. But employers are not required to do so.
We continue to monitor legislation related to the COVID-19 and all changes in employment law and policy due to the change in administrations. As always, we welcome your questions and are eager help identify solutions for your business.
The Emergency Temporary Standard by the Virginia Department of Labor and Industry (“DOLI”) related to COVID-19 recently became permanent with certain modifications. Pursuant to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (“the Final Standard”), all employers must:
• Assess their workplaces for hazards and assess the risk of exposure to the virus posed by job tasks
• Encourage employees to self-monitor for symptoms of COVID
• Develop and implement policies and procedures for employees to report symptoms of COVID-19
• Treat employees reporting symptoms of the virus as “suspected to be infected” with COVID until/unless another diagnosis has been made
• Remove persons known or suspected to be infected from the workplace and implement return-to-work standards based on testing, symptom resolution, and/or time.
• Establish a HIPAA-compliant system to receive positive COVID test results from employees
• Report a positive test to other employees working at that location within 24 hours (without revealing identity of positive employee)
• Inform their landlord of the positive test. Commercial landlords must notify all tenants that a worker in the building has tested positive for the virus.
• Inform the Virginia Department of Health of the positive test and notify the Virginia Department of Labor and Industry if three or more employees test positive within a 14-day period
• Promote physical distancing by limiting or staggering access to common areas, encourage the use of face coverings, provide adequate supplies for sanitizing surfaces and hands
• Ensure cleaning and sanitizing of common areas and shared surfaces, workstations, tools, equipment and vehicles between shifts
• Provide personal protective equipment (PPE) to employees when physical distancing and cleaning protocols are not feasible or sufficient to mitigate risks
In addition, the Final Standard classifies jobs by risk level. The “very high” and “high” categories include health care workers, any person who deals with the biological specimens or corpses of those infected with COVID, and first responders, among others. “Medium” risk jobs include those in the service industry, manufacturing, agriculture, and retail. “Lower” risk jobs are those with limited exposure to the general public and can be accomplished through the use of telework, staggered scheduling, and social distancing. Employers with jobs falling into the “very high,” “high” and “medium” risk categories must meet additional workplace safety requirements, including the use of face coverings, physical barriers, respiratory equipment, PPE, pre-shift symptom screening, and maintenance of adequate ventilation systems. All employers in industries in the “very high” and “high” risk must have a written infectious disease response plan; employers in “medium” risk industries must do the same if they have over 11 employees. All employers in these categories must provide their workers with training on COVID, its symptoms and transmission, and the use of PPE.
The Final Standard is very similar to the July temporary version of the workplace regulations but includes a few changes. The Final Standard moves workers at correctional facilities, jails, detention centers, and juvenile detention centers from the “medium” risk category to the “high” risk category. It also goes into much more detail about how medium-and high-risk workplaces, like restaurants and grocery stores, should direct airflow systems at their facilities. According to the document, these businesses should increase total airflow, inspect filters to minimize filter bypass and generate “clean-to-less-clean” air movement through the use of air diffusers and dampers. In addition, the Final Standard notes that some infected employees may be contagious even after the recommended 10-day isolation period and warrant additional isolation up to 20 days.
Failure to comply with the Final Standard’s directives exposes employers to fines and administrative enforcement actions by DOLI. Additionally, employers are prohibited from discharging or otherwise discriminating against employees for exercising their rights under this Standard, including employees who raise reasonable concerns about COVID-related infection control to the employer, other employees, a government agency, or the public.