​In past years, corporations and LLCs received a document that is misleading.  It may have come from one of various companies.  It appeared to be from the Virginia State Corporation Commission, but it is an advertising piece from a private company.  It appears to be the annual report required by the State Corporation Commission, so some clients send in money.  It was NOT an annual report and late the client paid a late fee to the State. 
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In January, as the registered agent for some companies, I received from “Virginia Business Certificates” a solicitation to buy a 2021 Certificate of Fact of Existence Request Form for $67.00.  This is not an official state form and has no official use.  I searched and found no company by that name registered to do business in Virginia.  It answers the telephone and has an address in Richmond.  An official certified Certificate of Corporate Existence can be purchased from the Virginia State Corporation Commission’s web site, www.scc.virginia.gov/Clerks office for $6.00.   If you have questions concern this, please feel free to call McGeehan Pascale, 703-273=5303.

Starting January 1, 2021, Virginia adopted new laws and rules for “balance billing”. 

Duties of Healthcare Provider:

If the health plan’s enrollee is treated by an out-of-network provider for emergency services or an in-network facility for scheduled services covered by Virginia law and rules, the provider or facility that is out of net work will submit the claim to the enrollee’s health plan.  The amount the health insurer pays the facility or provider must be “commercially reasonable amount based on the same or similar services in a similar geographic area.  If the health care provider and plan cannot agree on the amount, either party can start the arbitration process.
The Virginia of Department of Health provides a data set of what is a commercially reasonable payment data and Protocols. 
If health care providers have a pattern of violations under the new law without attempting corrective action, they are subject to fines or other remedies by the Virginia Board of Medicine or the Virginia Commissioner of Health. Similarly, insurance companies that are found to engage in a pattern of violations of the new law are subject to fines or other remedies by the SCC. Neither insurance companies nor health care providers may use arbitration as a general business practice for resolving claims payments.

Right of patient:

A patient has a right to be informed if the provided is in-network or out-of-network before being treated.  And the conditions when they can and cannot be balanced bill.
Not all health care providers are subject to this law.  However, when a patient schedules a medical service, they should ask their health care provider if they are in-network. Insurers are required to tell them that (on their websites or on request). Hospitals and other health care providers also must tell you (on their websites or on request) which insurance plans they contract with as in-network providers.
When a patient receives an explanation of billing (EOB) it must state what they must pay.  If they have a high deductible, they must pay the balance up to their deductible. If there is a dispute, the patient may file a complaint with the Virginia State Corporation Commission, Bureau of Insurance.

Classification and Exemptions of Administrative Workers under FLSA

            Misclassification of a worker can carry serious consequences to an employer.  In an opinion letter, dated January 8, 2021, the Secretary of Labor considered whether account managers are exempt from the minimum wage and overtime rules under the Fair Labor Standards Act (FLSA) and Portal to Portal Act.  As with all FLSA questions, the answer mostly depends of the facts.  In this case the facts were the account managers were given flexibility and autonomy to develop account plans and explaining how the product will benefit a prospective client and follow through helping client develop a plan.  The account managers are paid above the weekly salary threshold.  They perform non-manual work and primarily office work.  They exercise discretion and independent judgement with respect to matters of significance.  The Director of WHD held they were exempt as administrative employees. 

The U.S. Department of Labor has announced a proposed rule clarifying the definition of employee under the Fair Labor Standards Act (FLSA) as it relates to independent contractors.
“The Department’s proposal aims to bring clarity and consistency to the determination of who’s an independent contractor under the Fair Labor Standards Act,” said Secretary of Labor Eugene Scalia.  “Once finalized, it will make it easier to identify employees covered by the Act, while respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being an independent contractor.”

The Department’s proposed rule would:

• Adopts an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for himself or herself (independent contractor) or is economically dependent on a putative employer for work (employee);
• Identifies and explains two “core factors,” specifically the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for himself or herself;
• Identifies three other factors that may serve as additional guideposts in the analysis: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production; and;
• Advises that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

This Notice of Proposed Rulemaking (NPRM) is available for review and public comment for 30 days after it is published in the Federal Register. The Department encourages interested parties to submit comments on the proposed rule. Today’s web posting offers the public more time to review the NPRM before the comment period begins. 

The state (Virginia) Department of Labor has implemented workplace standards for Virginia employers to protect employees from the effects of Covid-19.  These are mandatory and Virginia is the first state to do that.  Review these on the Department of Labor's web site.  If you still have questions, please call our firm.

The Virginia Department of Labor and Industry, Safety and Health Codes Board, adopted regulations on employers in regard to Covid-19.  Virginia is the first state to adopt its own regulations on this subject.  However, if the employer could prove that the Center for Disease Control recommendations are equal to or more restrictive than the state regulations, the employer may follow the CDC requirements, but that may be difficult and expensive.

The Virginia regulations have the force of law, must be obeyed and carry potentially large fines. Before the regulations can be enforced, they must be published in the Virginia Register and, it is expected that will be on the week of July 27, 2020.  The regulations are 35 pages in length, but in part, they require the adoption of a plan for deal with suspected Covid-19 virus, posting of notices, providing at the employer’s expense face masks, hand cleaner and facilities for employees to wash their hands and procedures for employees with symptoms or suspected symptoms.  Do not risk a fine and if you have questions, please give us a call. 

We at MCGEEHAN PASCALE, PLC are healthy and we wish our clients, fellow lawyers, court personnel and opponents good health.  We are successful in helping clients by phone and the internet.  The pandemic creates some legal issues, however, and we are prepared to answer questions.  Here are some answers:

                    Can employers send home a worker displaying symptoms of the Covid-19 virus?

Yes.  Anyone with this infectious disease is a life-threatening danger to fellow workers and other with whom they may come in contact.  Employers may fear that sending home a sick worker will trigger legal liability under the Americans With disabilities Act (ADA) or other federal or state law, but there already are suits when an employer fails to protect employees.  There are safe harbors built into the ADA protect employers from liability as long as they establish a set of criteria and stick to them.

We advise employers to use the CDC guidelines.  The CDC defines a person as symptomatic if they have a fever over 100.4 and is coughing or has difficulty breathing.  They should get a doctor’s order and be tested an then follow medical advice.

If possible, the employer may require an employee to telecommute.

Read my earlier post regarding the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA)for questions regarding paid and unpaid leave.

                                      Can an employer impose conditions on employees for safety?

Yes.  Employers are required by OSHA to provide a safe work environment for its employees.  The employer may require the use of masks and protective clothing and regular effective washing of their hands.  That can be enforced through normal disciplinary means, including termination.

Can employers send home or bar from work during a self-quarantine period asymptomatic employees who have been exposed to COVID-19 as defined by the CDC?

Yes.  The incubation period is 14 days during which time an employee may be asymptomatic, but can infect others.  An employee is considered exposed if he or she:

1. Has had close contact with,
2. sat on an aircraft within 6 feet (two airline seats) of, or
3. lives in the same household as, is an intimate partner of, or is caring at home for a symptomatic individual with laboratory-confirmed COVID-19.
   

                                     Can employers ask about an employee’s suspected conditions?

Because the intent is to shield other workers from illness, employers may ask these questions without violating the ADA’s prohibition on posing questions that could reveal a disability.

The personal impact of the Covid-19 virus is immense.  For small and medium sized businesses,  there are legal questions that include the  fulfillment of obligations under contracts and leases when revenues are reduced or non-existent.  Some on-line sources have used the term force majeure as a possible solution.  
 
Attached is an excellent  article written by Dennis P. Chapman, Esquire,  of this firm that explains legal concepts of  impossibility of performance and force majeur in Virginia.  The article is for purposes of general education of the business community. This article does not replace legal advice by an experienced lawyer.  Contact a lawyer experienced in business, leasing or commercial matters and discuss with her or him the facts in your situation.   We at McGeehan Pascale, PLC hope the following article will inform and help you in these unique times.  Please click on the following link to download a PDF version of the article.    

Some of our small business clients are determining whether the small business federal loans are necessary and suitable for their business.  Two sources for answering you questions are the US Small Business site and https://disasterloan.sba.gov/ela/ and the George Mason University Small Business Development Center
https://masonsbdc.org/wpcontent/uploads/2020/03/Three_Step_Process_SBA_Disaster_Loans.pdf

Care for School Age Children:  On March 23, 2020, Governor Notham issued an executive order.  Foremost, it orders all public and private schools to cease all in person instruction for the remainder of this academic year.  That leaves open a possibility of alternative learning, such as on-line learning.  Facilities providing childcare services may remain open, subject to Virginia Department of Social Services guidance for daycare providers. This may affect businesses having employees with school age children who will need supervision during this period.  Look at the posting on the federal Families First Covid-19 Virus Response Act as to what is your businesses obligations in situation such as caring for a child exposed to Covid-19 or who may be ill with it.  
 
Business that must close until April 23, 2020:  The Virginia executive order closes all dining and congregation areas in restaurants, dining establishments, food courts, breweries, wineries, distilleries, tasting rooms and farmers’ markets until April 23,2020.  Delivery and carry-out are permitted.  Also closed until April 23, are public and private social clubs, theaters, performing arts centers, concert venues, and other indoor entertainment centers, fitness centers, beauty salons, barber shops and other locations where personal care services are performed that do not allow social distancing (six feet).  This list in not exhaustive.
 
Businesses that need not close:  Essential business may remain open.  These include grocery stores, pharmacies and retailers that sell food and beverage products and medical supplies, those sell or service cell phones and computers or automotive parts, construction and home improvement centers, lawn and garden retailers, beer, wine and liquor store and gas stations.
 
Retailers not included in the “essential retail business” category may continue to operate, but they must limit in-person shopping to no more than 10 persons (not counting staff).

Professional services businesses:  Business that offer professional rather than retail service, which includes lawyers and accountants, may remain open but are asked to use teleworking as much as possible.  When that is not feasible, they must adhere to social distancing as much as possible, enhanced sanitizing practices on common surfaces and apply workplace guidance from state and federal authorities.
 
McGeehan Pascale, PLC remains open.  We are here and we are available to assist our clients.  If you have questions, please call us.  (703)273-5303

THIS SHOULD NOT BE CONSIDERED LEGAL ADVICE IN A PARTICULAR SITUATION OR PARTICULAR SET OF FACTS.  NEITHER WILL IT COVER THE ENTIRE RECENT LEGISLATION.  YOU MAY CAN USE THIS SUMMARY FOR GENERAL FAMILIARIZATION AND THEN CONSULT AN EMPLOYMENT LAW ATTORNEY AND TAX ADVISOR, AS APPROPRIATE FOR YOUR PARTICULAR QUESTIONS. 

On March 18, 2020, President Trump signed into law the Families First Coronavirus Act “the Act”) This law provides many things including supplemental appropriations for Food and Nutrition Service including Supplemental Nutrition Program for Women, Infants and Children. Defense Health Program, Veterans, IRS and school lunch waivers and waivers of fees for COVID-19 testing.  It includes the Emergency Family and Medical Leave Act, which expands the Family and Medical Leave Act of 1993.  This is through December 31, 2020 and there are caps on leave and amount to be paid.  For small business, it expands the 1993 act to businesses with “fewer than 500 employees”.  It provides unpaid leave for initial 10 days, which can be substituted for vacation, personal leave and medical or sick leave.  After 10 days, it provides paid leave for each day of leave after 10 days.  It provides calculation as to defining days and the calculation of the “regular rate of pay”.  An employee’s notice of leave, when practicable, is to be given.  Employers are to make reasonable efforts to restore the employee to an equivalent position held when leave commenced.  There also is the Emergency Paid Sick Leave Act.   For employees with COVID-19 or who were advised to self-quarantine or isolation, or seeking a medical diagnosis or who are caring for person self-quarantine for caring for a son or daughter whose school is closed due to COVID-19 precautions, the employee is entitled to paid sick leave for 80 hours (full time) or the hours the employee works on the average (part-time).  Employers also must post notices in the work place of the employee’s rights under this Act and employers may not discharge the employee who takes leave permitted by the Act.  A failure to do these things is a violation of the Fair Labor Standards Act of 1938 (29 U.S.C. 206, 215 and 217) and subject to penalties under the FLSA.

Employers are allowed credits (not deductions) against taxes imposed by the Internal Revenue Code §3111(a) and 3221(a in an amount equal to 100% of the qualified sick leave paid by the employer in that quarter.  The amount is increased by a credit allowed by so much of the employer’s qualified health plan expenses attributable to qualified sick leave wages. Eligible self-employed persons are allowed a credit against tax imposed by subtitle A of the Internal Revenue Code for any taxable year in an amount equal to the qualified sick leave equivalent amount with respect to the individual.  There is a credit for Family Leave for Self-employed individuals who are entitled to receive paid leave if the individual were an employee of an employer.  All wages required to e paid by reason of these acts shall not be considered wages for the purposes of the Internal Revenue Code §3111(a) or § 3221(a0