2021 General Assembly Session
Personnel Related Legislation
2021 General Assembly Summary – Post Session Report
Personnel Related Legislation
Fairfax County Public Schools, Office of Government Relations
This report describes the Personnel related legislation considered during the 2021 General Assembly Regular Session. Bills are listed as having Passed or Failed.
The Governor has until March 31 to act on any legislation adopted by the General Assembly and he has the option to sign, amend, or veto any bill. Bills with amendments or vetoes will be considered by the General Assembly at its Reconvened Session, scheduled for April 7. Legislation signed by the Governor goes into effect on July 1, 2021 unless otherwise specified in the legislation itself.
Abusive Work Environments; Definitions HB 2176 (Torian) would defines, for the purposes of mandatory school board policies relating to abusive work environments, the terms "abusive conduct," "abusive work environment," "physical harm," and "psychological harm." The bill would clarify that the requirement to adopt such policies shall not be construed to limit a school board's authority to adopt policies to prohibit any other type of workplace conduct as the school board deems necessary.
Active Military or a Military Spouse; Prohibits Discrimination in Public Accommodations, etc. HB 2161 (Tran) and SB 1410 (Bell, J.J.) would prohibit discrimination in public accommodations, employment, and housing on the basis of a person's military status, defined as a member of the uniformed services of the United States or a reserve component thereof or a spouse or other dependent of the same. The bills would also prohibit terms in a rental agreement in which the tenant agrees to waive remedies or rights under the federal Servicemembers Civil Relief Act prior to the occurrence of a dispute between the landlord and the tenant.
Child Care Assistance Program; Emergency HB 2206 (Filler-Corn) would provide that regulations governing the Child Care Subsidy Program (the Program) be amended to provide that (i) a family shall be eligible for assistance through the Program if the family's income does not exceed 85 percent of the state median income, the family includes at least one child who is five years of age or younger and has not yet started kindergarten, and the family meets all other income and eligibility requirements of the Program and (ii) job search activities shall be considered eligible activities for the purposes of the Program. The bill would provide that a family determined to be eligible for assistance through the Program shall be eligible to receive assistance for a period of 12 months or until the family's household income exceeds 85 percent of the state median income, whichever occurs sooner. The Department of Social Services would administer the program, as amended by the bill, in cooperation with the Department of Education. The bill contains an emergency clause and would provide that the provisions of the bill shall be applicable to applications for assistance through the Program received prior to August 1, 2021.
Child Care Providers; Background Checks; Portability HB 2086 (McGuire) and SB 1316 (McClellan) would exempt prospective employees and volunteers of certain child care providers from statutory background check requirements where the individual completed a background check within the previous five years, provided that (i) such background check was conducted after July 1, 2017; (ii) the results of such background check indicated that the individual had not been convicted of any barrier crime and was not the subject of a founded complaint of child abuse or neglect; and (iii) the individual is an employee or volunteer of a child care provider that is subject to background check requirements or has been separated from such employment or volunteer position for not more than 180 days. The bills would require such child care providers, prior to hiring or allowing to volunteer any individual without the completion of a background check, to obtain written certification that such individual satisfies all such requirements and is eligible to serve as an employee or volunteer. The bills also would direct the Department of Education (the Department) to establish a two-year pilot program for the purpose of stabilizing and improving the quality of services provided in the Commonwealth's childcare industry. The bills would provide that under the pilot program a fixed sum of funds, based on the number of children served and certain other factors, will be disbursed to participating child care providers who agree to meet higher standards of quality and care, as determined by the Department. The bills would require the Department to report to the Governor and the General Assembly no later than December 1 of each year of the pilot program certain information set forth in the bill. The bill also requires the Department, in collaboration with the School Readiness Committee, to (a) identify and analyze financing strategies that can be used to support the systemic costs of high-quality child care services, ensure equitable compensation for child care staff, and better prepare children for kindergarten and (b) analyze the effectiveness of using a cost-of-quality modeling system for the child care subsidy program. The bills would require the Department to report its findings to the Governor and the General Assembly no later than December 1, 2021.
Cultural Competency HB 1904 (Jenkins) and SB 1196 (Locke) would require teacher, principal, and division superintendent evaluations to include an evaluation of cultural competency. The bills would require every person seeking initial licensure or renewal of a license from the Board of Education to complete instruction or training in cultural competency and with an endorsement in history and social sciences to complete instruction in African American history, as prescribed by the Board. The bills also would require each school board to adopt and implement policies that require each teacher and any other school board employee holding a license issued by the Board to complete cultural competency training, in accordance with guidance issued by the Board, at least every two years.
Employee Protections; Medicinal Use of Cannabis Oil HB 1862 (Helmer) would prohibit an employer from discharging, disciplining, or discriminating against an employee for such employee's lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee's diagnosed condition or disease. The bill would provide that such prohibition does not restrict an employer's ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours or require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding.
Garnishment of Wages; Protected Portion of Disposable Earnings HB 1814 (Krizek) would provide that the Virginia minimum hourly wage shall be used to calculate the amount of a person's aggregate disposable earnings protected from garnishment if it is greater than the federal minimum hourly wage.
Paid Sick Leave HB 2137 (Guzman) requires the provision of paid sick leave to home health workers.
Personal Protective Equipment, Employee Classification: Disaster; HB 2134 (Batten) would prohibit the consideration, in any determination regarding whether an individual is an employee or independent contractor, for the purposes of a civil action for employment misclassification, unemployment compensation, and workers' compensation, of the provision of personal protective equipment by a hiring party to the individual in response to a disaster caused by a communicable disease of public health threat for which a state of emergency has been declared.
Personal Protective Equipment, Sales Tax Exemption HB 2185 (Byron) and SB 1403 (Pillon) would establish a retail sales and use tax exemption for personal protective equipment, defined in the bill. The exemption would be available to any business that has in place a COVID-19 safety protocol that complies with the Emergency Temporary Standard promulgated by the Virginia Department of Labor and Industry and that meets other criteria. The exemption would sunset one day after the first day following the expiration of the last executive order issued by the Governor related to the COVID-19 pandemic and the termination of the COVID-19 Emergency Temporary Standard and any permanent COVID-19 regulations adopted by the Virginia Safety and Health Codes Board. The bills contain an emergency clause.
Seizure Management and Action Plans; Biennial Training SB 1322 (DeSteph) would provide for the submission and utilization of seizure management and action plans for students with a diagnosed seizure disorder. The bill would require that school nurses and certain school division employees biennially complete Board of Education-approved training in the treatment of students with seizure disorders. The bill would provide immunity from civil liability for acts or omissions related to providing for the care of a student under a seizure management and action plan. The bill would have a delayed effective date of July 1, 2022.
Temporary Extension of Certain Licenses HB 1776 (Ward) would require the Board of Education to grant a two-year extension of the license of any individual licensed by the Board whose license expires on June 30, 2021, in order to provide the individual with sufficient additional time to complete the requirements for licensure.
Virginia Human Rights Acts; Discrimination on the Basis of Disability HB 1848 (Sickles) would add discrimination on the basis of disability as an unlawful discriminatory practice under the Virginia Human Rights Act. The bill also would require employers, defined in the bill, to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary, to assist such person in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer. The bill also would prohibit employers from taking any adverse action against an employee who requests or uses a reasonable accommodation, from denying employment or promotion opportunities to an otherwise qualified applicant or employee because such employer will be required to make reasonable accommodation to the applicant or employee, or from requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability.
Virginia Overtime Wage Act; Penalties HB 2063 (Mullin) would require an employer to compensate its employees who are entitled to overtime compensation under the federal Fair Labor Standards Act at a rate not less than one and one-half times the employee's regular rate of pay, defined in the bill, for any hours worked in excess of 40 hours in any one workweek. The bill would include provisions for calculating overtime premiums due to fire protection and law-enforcement employees by certain public sector employers. The penalties provided by the bill for an employer's failure to pay such overtime wages, including civil and criminal penalties, would be the same as currently provided for failing to pay wages generally. The statute of limitations for bringing a claim for a violation of the bill would be three years.
Collective Bargaining; Prohibited Considerations During Negotiations HB 1794 (Davis) would have prohibited any local ordinance or resolution granting or permitting collective bargaining from permitting consideration during collective bargaining negotiations of any action or discussion regarding the hiring, firing, or disciplining of a local employee. All such actions and discussions would have been exempt from all collective bargaining negotiations.
Employment Health and Safety Standards; Heat Illness Prevention HB 1785 (Ward) and SB 1358 (Hashmi) would have required the Safety and Health Codes Board to adopt regulations establishing standards designed to protect employees from heat illness, defined in the bill. The measures would have authorized an employee to bring an action based on a violation of such standards in which injunctive relief and monetary damages may be sought.
Employment; Retaliatory Discharge of Employee; Workers' Compensation HB 1754 (Carter) would have prohibited an employer or other person 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.
Government Data Collection and Dissemination Practices Act; Exemptions; Email Addresses of Licensed Professionals SB 1349 (Newman) would have modified current law to provide that electronic mail addresses of persons applying for or possessing a license to engage in the practice of any profession in the Commonwealth may also be disseminated, in addition to such person's name and address, by the agency maintaining such information.
Immunity From Civil Claims Related to the Transmission of or Exposure to the COVID-19 Virus and Uses of Personal Protective Equipment; Emergency HB 2143 (Miyares) would have provided immunity to persons, as defined in the bill, from civil causes of action arising from any act or omission alleged to have resulted in the contraction of or exposure to the COVID-19 virus, provided such person has complied with applicable federal, state, and local policies, procedures, and guidance regarding COVID-19. The bill would have further provided immunity to persons who design, manufacture, label, or distribute any personal protective equipment in response to the COVID-19 virus from any civil cause of action arising out of the use of such equipment.
Minimum Wage; Effective Dates of Scheduled Increases; Emergency HB 2270 (Marshall) would have postponed the effective date of scheduled increases to the Virginia minimum wage. The initial increase to $9.50, currently set to take effect on May 1, 2021, will take effect on January 1, 2022, under the bill. The bill postpones the effective dates of all other scheduled increases by one year. The bill would have also postponed by one year a joint review of the feasibility and potential impact of instituting a regional minimum wage in the Commonwealth by the Virginia Department of Housing and Community Development, the Virginia Economic Development Partnership Authority, and the Virginia Employment Commission and the deadline by which the General Assembly is required to reenact the provisions increasing the minimum wage to $13.50 and $15.00 in order for those increases to take effect. The bill would have contained an emergency clause.
Paid Family and Medical Leave Program HB 2016 (Ayala) and SB 1330 (Boysko) would have required the Virginia Employment Commission to establish and administer a paid family and medical leave program with benefits beginning January 1, 2024. Under the program, benefits would have been paid to eligible employees for family and medical leave. The bill would have provided self-employed individuals the option of participating in the program.
Paid Sick Time HB 2103 (Reid) would have required public and private employers with 35 or more full-time equivalent employees to provide eligible employees, defined in the bill, with earned paid sick time and paid sick time. The bill would have provided for an eligible employee to earn up to 40 hours of earned paid sick time depending on the amount of hours the eligible employee has averaged over the previous year or, for a new employee, is projected to work. An eligible employee would not have earned or used more than 40 hours of earned paid sick time in a year, unless the employer selects a higher limit. The bill would have provided that earned paid sick time may be used for an eligible employee's mental or physical illness, injury, or health condition; an eligible employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or an eligible employee's need for preventive medical care; or to provide care to an eligible employee's family member, defined in the bill, under similar circumstances.
Public Employees; Prohibition on Striking; Exception HB 1780 (Carter) would have exempted employees of a local school board from the prohibition on striking, and from termination of employment for striking, by public employees.
Right to Work HB 1755 (Carter) would have repealed the provisions of the Code of Virginia that, among other things, prohibit any agreement or combination between an employer and a labor union or labor organization whereby nonmembers of the union or organization are denied the right to work for the employer, membership in the union or organization is made a condition of employment or continuation of employment by such employer, or the union or organization acquires an employment monopoly in any such enterprise.
Sick Leave for the Care of Immediate Family Members SB 1159 (Favola) would have required employers with a sick leave program to allow an employee to use his sick leave for the care of an immediate family member. The measure would have applied only to employers that have 25 or more employees and that provide paid sick leave that allows an employee to be absent from work in the event of the employee's own incapacity, illness, or injury. The measure would have applied only to employees who work at least 30 hours per week, and it caps the amount of sick leave that may be used for the care of immediate family members at five days per calendar year.
Teacher Compensation at or Above National Average HB 1915 (Mugler) would have required that public school teachers be compensated at a rate that is at or above the national average. The bill would have required state funding to be provided pursuant to the general appropriation act in a sum sufficient to fund a 4.5 percent annual increase for public school teacher salaries, effective from the 2022-23 school year through the 2026-27 school year. The bill would have had a delayed effective date of July 1, 2022.
Virginia Equal Pay Act; Civil Penalties SB 1228 (Boysko) would have prohibited public and private employers from discriminating between employees on the basis of membership in a protected class in the payment of wages or other compensation, including benefits, by paying wages or other compensation to employees who are members of a protected class at a rate less than the rate at which it pays wages or other compensation to employees who are not members of the protected class for substantially similar work. The measure would have also prohibited an employer from discriminating between employees by providing less favorable employment opportunities on the basis of membership in a protected class, limiting an employee's right to discuss wages, relying on the wage history of a prospective employee in considering the prospective employee for employment or determining the wages that the prospective employee is to be paid by the employer upon hire, or taking certain retaliatory actions against an employee.
Virginia Human Rights Act; Nondiscrimination in Employment; Sexual Harassment and Workplace Harassment HB 2155 (Watts) and SB 1360 (McClellan) would have clarified, by defining sexual harassment and workplace harassment, what constitutes an unlawful employment practice if engaged in by an employer. The bill would have also provided a nonexhaustive list of factors to consider when determining whether certain conduct constitutes workplace harassment, that a person claiming to be aggrieved by an unlawful discriminatory practice may file a written complaint with the Division of Human Rights within two years after the occurrence of the alleged unlawful discriminatory practice, and that an aggrieved person who has been provided a notice of his right to file a civil action for such grievance may do so within one year of receiving such notice and may be awarded reasonable attorney fees, including costs and reasonable litigation expenses if the court or jury finds in his favor. The bill would have also amended the definition of "employer" to mean a person employing five or more employees, instead of 15 or more employees under current law, for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
Worker Classification; Independent Contractors HB 2296 (Robinson) would have provided that in a proceeding involving allegations of worker misclassification an individual or business is not considered an employee with respect to a hiring party if the person qualifies as an independent contractor relative to the hiring party under the common law right-of-control test as established by the Internal Revenue Service Revenue Ruling 87-41, by an applicable determination of the Internal Revenue Service, or if the individual or business signs a written contract with the hiring party stating that the individual or business is self-employed or is being engaged as an independent contractor and containing certain acknowledgments, the individual or business has the right to control the manner and means by which the final result of the work is to be accomplished, and four or more additional criteria provided for in the bill are satisfied. The bill would have also provided that a hiring party alleging that a worker misclassification claim is frivolous or improper may file a motion to dismiss such claim. The bill would have provided that a contract or written agreement expressly stating that a claimant is not considered an employee is considered as prima facie evidence of a violation of frivolous pleading provisions.
Workers' Compensation; Injuries Caused by Repetitive and Sustained Physical Stressors HB 2228 (Guzman) would have provided that, for the purposes of the Virginia Workers' Compensation Act, "occupational disease" includes injuries from conditions resulting from repetitive and sustained physical stressors, including repetitive and sustained motions, exertions, posture stress, contact stresses, vibration, or noise. The bill would have provided that such injuries are covered under the Act. Such coverage would not have required that the injuries occurred over a particular period, provided that such a period can be reasonably identified and documented and further provided that the employment is shown to have primarily caused the injury, considering all causes.