New Virginia Laws Focused on Pandemic-Essential Industries

Governor Northam recently signed into law a half dozen new employment laws affecting employers in the Commonwealth of Virginia. Among these new laws are two that, beginning on July 1, 2021, will provide new protections for two industries that have become critical in the middle of the COVID-19 pandemic: home health workers and domestic workers. Legislators have noted that these two bills, in particular, will help protect workers who are disproportionately comprised of women and racial minorities.

Home Health Workers. A new law providing paid sick leave that has long been anticipated in the Commonwealth of Virginia is now here—but it is limited to home health workers.  House Bill 2137 requires all employers of home health workers who “provide personal care, respite, or companion services” to patients enrolled in Medicaid.  The new law also prohibits employers from retaliating against employees who avail themselves of this new benefit.  Sponsors of the bill indicated their aim to protect workers who would never receive a paid sick day without this new protection, especially in the middle of a pandemic.

• Employers of home health workers must now provide at least one hour of paid sick leave for every 30 hours worked, not to exceed the accrual or use of more than 40 hours per year. Paid sick leave that is unused must be allowed to carry over to the following year in which it was accrued. Employers can opt to provide a higher number of sick leave hours.
• Home health workers who are exempt from overtime under the Fair Labor Standards Act are eligible for paid sick leave as well. This new leave can be used for the employee’s own health needs, as well as to care for a family member who is sick. The definition of “family member” is broad and can include “any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.”
• Employers must adopt written policies in order to require notice of an employee’s need for paid sick leave. This policy may require that for paid sick leave for three or more consecutive work days, an employee must provide reasonable documentation to substantiate the paid sick leave request.

Domestic Workers. The Virginia Human Rights Act now extends to domestic workers, as established by Senate Bill 1310/House Bill 1864. “Domestic workers” include workers who are paid for services “of a household nature” performed in a private home and includes workers “such as companions, babysitters, cooks, waiters, butlers, valets, maids, housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen, gardeners, home health aides, personal care aides, and chauffeurs of automobiles for family use.” Households that employ even just one (1) domestic worker are subject to the VHRA, except where a discrimination claim under the VHRA is with respect to age. In addition, House Bill 2032 extends workplace protections to domestic workers so that they come under the purview of the Virginia Department of Labor and Industry. This mans the Virginia DOLI can conduct workplace investigations in the private homes where domestic workers perform their services to enforce its workplace regulations; however, legislators have explained that such investigations will require the consent of the employer. Payroll obligations, however, as governed by federal law, remain unaffected by these new Virginia laws.  This means that in 2021, payroll tax withholding obligations do not kick in until a domestic worker is paid more than $2,300 in a year or $1,000 in a quarter.