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Virginia’s General Assembly began its 2021 session just last week. After the sea change in employment laws in 2020, there are far fewer employment bills introduced this year. The 2021 session is a short session—only 30 days—unless extended to 45 days. In a short session, legislators are limited in the number of bills they may introduce, which results in fewer bills overall. A short session also means bills are voted on quickly, so many bills introduced have already been killed, just a week into session. 

Among the notable employment bills introduced in 2021 are proposed laws to provide paid sick leave and paid family leave; laws to create and abolish exemptions to the minimum wage; and laws requiring hazard pay and protective equipment for essential workers as a result of the pandemic.  

In addition to these employment bills, a key legislative initiative for Governor Northam and Virginia Democrats (who control both chambers of the General Assembly) is legalizing recreational marijuana use in the Commonwealth. Under legislation proposed by Governor Northam, retail sales of recreational use marijuana would not begin until 2023, thereby providing time to license and regulate retailers. If this legislation is passed and becomes law, Virginia employers should be on the lookout for further legislation providing protections for employees who engage in the legal use of marijuana under state law (e.g., HB 1862 discussed below), which could necessitate changes to drug-free workplace policies. There are currently no such employee protections in place under Virginia law.  

Below is a summary of some of the employment law bills introduced this session: 

  • Sick Leave and Family Leave 
    •  HB2103: Requires public and private employers with 35 or more full-time equivalent employees to provide eligible employees with earned paid sick time and paid sick time up to 40 hours per year. 
    • HB2016: Requires the Virginia Employment Commission to establish and administer a paid family and medical leave program with benefits beginning January 1, 2024. The benefits would be paid at 80 percent of the employee’s average weekly wage, not to exceed 80 percent of the state weekly wage. The measure caps the duration of paid leave at 12 weeks in any year. A Senate version of the bill (SB1330) has been tabled for the year.
    • SB1159: Requires employers with 25 or more employees that have an existing sick leave program to allow certain employees to use their sick leave for the care of an immediate family member.
  • Wage and Hour
    • HB1786: Eliminates the exemption from Virginia’s minimum wage requirements for persons employed as farm laborers or farm employees.
    • HB1954: Exempts persons who provide fire or emergency medical services for a fire company or nongovernmental emergency medical services agency from the provisions of the Virginia Minimum Wage Act.
    • HB2015: Requires hazard pay of 1.5 times the normal rate and provision of personal protective equipment for “essential works” upon the declaration of the Governor of a state of emergency that includes stay-at-home or shelter-in-place order. “Essential worker” means an individual employed as a health care provider, home care provider, or airport worker, or by an essential retail business. “Essential retail” includes grocery stores, pharmacies, medical supply retailers, home improvement and hardware retailers, among others. 
    • SB1228 – tabled for the year:  The Virginia Equal Pay Act; Prohibits employers from discriminating against employees on the basis of membership in a protected class in the payment of wages or other compensation, or in providing less favorable employment opportunities. The measure also prohibits an employer from limiting an employee’s right to discuss wages, relying on the wage history of a prospective employee, or taking certain retaliatory actions against an employee. 
  • Workplace Protections 
    • HB1754: Prohibits an employer from discharging or taking other retaliatory action against an employee if such action is motivated by the knowledge or belief that the employee has filed a claim or taken or intends to take certain actions under the Virginia Workers’ Compensation Act. Currently, retaliatory discharges are prohibited only if the employer discharges an employee solely because the employee has taken or intends to take such an action. This bill has been voted out of subcommittee and will go to the full Labor and Commerce Committee for a vote.
    • HB1785 and SB 1358: Requires the Safety and Health Codes Board to establish standards designed to protect employees from heat illnesses, including heat cramps, heat exhaustion, heat syncope and heat stroke.
    • HB1862: Prohibits an employer from discharging, disciplining or discriminating against an employee for the employee’s lawful use of cannabis oil, but allows exceptions if the employee’s work is impaired, or if allowing such use would cause the employer to violate federal law or would result in the loss of federal contracts or funding. The bill would not restrict an employer’s ability to take any adverse employment action for any work impairment by the employee. 
    • HB2032 and SB1310: Provides that individuals who are engaged in providing domestic service are not excluded from employee protection laws and the Virginia Workers’ Compensation Act
  •  Other
    • HB2134: Provides that in any civil action related to employment misclassification, workers’ compensation or unemployment, the provision of personal protective equipment by a company cannot be considered as a factor in determining the employment relationship. 
    • HB1780: Exempts employees of a local school board from the state’s prohibition on public striking by public employees.

Hirschler’s employment law team will provide updates as the 2021 General Assembly session continues.  

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Heather A. Scott

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