July 1, 2020 represents a milestone for Virginia employers.  As we previously reported, nearly two dozen new employment laws take effect, including the Virginia Values Act.  In addition, all of Virginia enters Phase Three of Governor Ralph Northam’s Safer at Home plan to reopen the economy in light of the COVID-19 pandemic.

Changes to Virginia Employment Law

Employers with Virginia operations should take note of the following important changes:

1. Sexual Orientation, Gender Identity, Military Status, and Pregnancy: The Virginia Values Act amended the Virginia Human Rights Act (“VHRA”) to, among other things, prohibit workplace discrimination on the basis of sexual orientation, gender identity, and military status. A separate amendment requires employers to make reasonable accommodations for the known limitations of an employee related to pregnancy, childbirth, or related medical conditions, including lactation.

2. VHRA Expanded Coverage: The Virginia Values Act vastly expands the scope of the Virginia Human Rights Act. While the prior version of the VHRA applied to only those employers with between five and 14 employees, the law now covers all employers with 15 or more employees.  However, for purposes of unlawful discharge claims due to alleged discrimination (other than age), the law extends to all employers with more than five employees.

3. Violations of Wage Payment Law: New laws create private rights of action for employees asserting violations of Virginia’s wage payment law, Virginia Code 40.1-29, and for employees claiming they have been discriminated or retaliated against for filing a complaint or participating in a proceeding involving allegations of unpaid wages.

4. Some Non-Competes Prohibited: Virginia now prohibits employers from entering into or enforcing non-compete agreements with so-called “low-wage employees,” e., those whose average weekly earnings are less than the average weekly wage of employees currently in Virginia ($1,204 as of Q4 2019).

5. Worker Misclassification: In an effort to reduce worker misclassification, Virginia law now provides a private right of action for individuals who allege that they have been misclassified as independent contractors, and individuals may bring separate claims for retaliation if they report alleged misclassification.

6. “Ban the Box”: Virginia has “banned the box,” and thus employers may no longer ask applicants to disclose information about arrests, criminal charges, or convictions for simple marijuana possession during the hiring process.

We detailed these changes in a recent webinar that can be accessed here.

Keys to Phase Three Reopening

While some states have slowed reopening, Virginia has proceeded to Phase Three.  As detailed in Executive Order No. 67, business requirements for Phase Three remain similar to those in Phase Two, which we previously covered.  Employers should be mindful of the following key requirements:

• Foodservice Establishments must, among other things:

  • limit all parties, whether seated together or across multiple tables, to 250 patrons or less;

  • keep bar areas closed;

  • if opening buffets to self-service, continuously monitor the buffet with trained staff, change serving utensils at least hourly, provide hand sanitizer, and require the use of barriers such as gloves or deli tissue to touch utensils; and

  • require employees working in customer-facing areas to wear face coverings.

• Nonessential Retail Establishments must, among other things:

  • maintain six feet of social/physical distancing, despite no limits on occupancy; and

  • require employees working in customer-facing areas to wear face coverings.

• Fitness and Exercise Facilities; Swimming Pools must, among other things:

  • limit occupancy to no more than 75% of the lowest occupancy load on the certificate of occupancy, while maintaining at least ten feet of social/physical distancing as much as possible;

  • screen patrons for COVID-19 symptoms as a condition of entry;

  • ensure that the total number of attendees in all group exercise and fitness classes does not exceed the lesser of 75% of the minimum occupancy load or 250 patrons, members, and guests;

  • keep closed hot tubs, spas, slash pads, spray pools, and interactive play features, and there can be no operation of any equipment that cannot be thoroughly disinfected between uses (e.g., climbing rope, exercise bands);

  • open indoor and outdoor swimming pools at up to 75% occupancy, and free swim is allowed; and

  • require employees working in customer-facing areas to wear face coverings.

• Personal Care and Personal Grooming services, which include beauty salons, barbershops, spas, massage centers, tanning salons, and tattoo shops, must, among other things:

  • stagger appointments, although no occupancy limits are imposed;

  • provide customers with face coverings and/or require face coverings to be worn; and

  • maintain a list of names, contact information, and date and time served of each customer.

• Recreational and Entertainment Businesses, including outdoor performing arts venues, outdoor concert venues, outdoor sports venues, outdoor movie theaters, museums, aquariums, zoos, and botanical gardens, must, among other things:

  • limit the total number of attendees (including attendees and participants) to the lesser of 50% of the occupancy load of the venue or 1,000 persons;

  • install visible markers for queue lines that separate people by six feet of physical distance;

  • create a guest flow plan of modified queue lines into and within the facility, determining any areas likely to become bottlenecks or pinch points and adjusting guest flow accordingly;

  • reconfigure seating arrangements to allow six feet of distance between guests; and

  • create and display physical distancing communication tools.

All such businesses must post signs prohibiting entrance to individuals with a fever or symptoms of COVID-19, or known exposure to COVID-19 in the prior 14 days, and signs that provide public health reminders (e.g., social distancing, staying home if sick).

The Phase Three guidelines also provide best practices for employers to consider.  Further, in addition to the above industries, the guidelines provide reopening requirements for farmers markets, recreational sports, campgrounds and overnight summer camps, religious services, horse and other livestock shows, horse racing racetracks, and outdoor motor speedways.

Finally, Executive Order No. 63 continues to apply: face coverings must be worn when patronizing a business or inside public buildings.