Virginia Law Potpourri
Legal Line - October 2021
Several important laws and regulations have recently become effective or are fast approaching their effective dates in Virginia. These changes will touch different parts of a bank’s operations and it would be beneficial to ensure your policies and procedures reflect these legal updates.
DOLI COVID-19 Regulation
On September 8, 2021, the Virginia Department of Labor and Industry (DOLI) updated its Virginia Occupational Safety and Health (VOSH) Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19 that applies to most Virginia employers. The revised Standard is improved in that it recognizes many employees have been vaccinated against COIVD-19 and is in alignment with current CDC guidance. I will address several of the significant changes.
Section 40 of the Standard outlines the mandatory requirements for all employers. Employers are required to have a policy in place to ensure compliance with the Standard’s requirements to protect employees from workplace exposure to COVID-19, which includes familiar requirements like preventing sick employees from reporting to work, reporting COVID-19 cases, and return-to-work criteria. A new requirement is that the policy must also have a method to receive anonymous complaints of violations of the Standard. There is a safe harbor of presumed compliance with the Standard’s mandatory requirements for those employers that enforce their policies in good faith and resolve filed complaints.
Employers are also required under Section 40 of the Standard to establish and implement policies and procedures that ensure unvaccinated and otherwise at-risk employees (because of a prior transplant or other medical condition) wear face coverings and observe social distancing while on the job and during paid breaks on the employer’s property. Vaccinated employees only have to wear face coverings in areas of substantial or high community transmission for COVID-19. The Standard provides that an employer may rely on an employee’s representation of being fully vaccinated or it may require proof that an employee is fully vaccinated.
Employee training on the hazards and characteristics of COVID-19 and the development and implementation of a written Infectious Disease Preparedness and Response Plan is not required for employers with lower risk workplaces. Employers providing health care services and employers with higher-risk workplaces (those where employees have prolonged closeness to coworkers or potential frequent contact with members of the public) with mixed-vaccination status employees must meet these more intensive requirements found in Section 60 of the Standard.
Finally, the revised Standard includes another safe harbor for employers that comply with a recommendation contained in current CDC guidelines. An employer’s actual compliance with a current CDC recommendation, whether mandatory or non-mandatory, to mitigate COVID-19 related hazards or job tasks addressed by the Standard will be considered compliant with the Standard and will be considered evidence of good faith in any related enforcement proceeding.
New Foreclosure Requirements
The General Assembly passed legislation in the 2021 Special Session I that added additional homeowner protections in the foreclosure process, including the addition of an affidavit requirement, increased time for notice, and increased content requirements for the notice. In the case of a deed of trust conveying owner-occupied residential real estate, the trustee of such deed of trust may not sell the property without receiving an affidavit signed by the party that provided the notice of sale required by § 55.1321 (i.e., the trustee or party secured under the deed of trust) confirming the notice was sent to the owner, along with a copy of the notice attached to the affidavit. The trustee is further required to provide copies of the affidavit and notice to each potential bidder, with personal financial information redacted, before commencing a foreclosure sale.
In addition to the new affidavit requirement, the trustee or the party secured under a deed of trust must give written notice to the owner of the owner-occupied residential real estate being sold at foreclosure at the owner’s last known address by certified or registered mail at least 60 days prior to such sale of (i) the time, date, and place of any proposed sale and (ii) the date of the last payment received and the amount received; the total amount of principal, interest, costs, and fees due in arrears; and the remaining total principal balance due on the instrument.  The notice must also include the U.S. Housing and Urban Development’s (HUD) Office of Housing Counseling website address with a listing of HUD-certified housing counseling agencies; Virginia Legal Aid’s website address and telephone number; and, in at least 12-point type, the statement: “This is NOT a notice to vacate the premises. You should consider contacting an attorney or your local legal aid or housing counseling agency.” The trustee under the deed of trust must have proof that the notice has been sent in order to proceed with the foreclosure sale. The commercial foreclosure sale notice requirement was not changed and remains at 14 days prior to sale. It would be prudent for lenders to notify any trustees or substitute trustees used by the bank of these changes to ensure those parties have updated their procedures as well.
Also part of this 2021 Special Session I legislation was a restriction in the circumstances under which a court may order real estate to be sold to enforce a judgment lien. When a creditor has obtained a judgment lien that encumbers property that is the debtor’s primary residence, the judgment lien must exceed $25,000, exclusive of interest and costs, to be enforced.  Previously, such real estate could be sold and the proceeds applied to discharge a judgment lien greater than $20.
Expansion of the Court of Appeals
The Court of Appeals of Virginia has recently been expanded from 11 to 17 judges and, come January 1, 2022, the jurisdiction of the court will also be expanded to provide for an appeal of right in every civil case. This means that a party to a case in a Virginia circuit court who is displeased with the court’s decision will have the right to appeal the case to the Court of Appeals. Currently, civil appeals are very limited and a disgruntled party must generally petition the Supreme Court of Virginia to ask for the right to appeal a circuit court’s decision. That gatekeeping function will end January 1st and the opportunity for more bites at the litigation apple increases. Be prepared for an uptick in litigation as litigants discover the expanded right of appeal.
This potpourri of statutes and regulations includes both recent and imminent changes in Virginia law. Take note and ensure that your bank is knowledgeable about these developments.
For more information about this article or other legal banking issues, contact DeMarion Johnston, VBA General Counsel, at firstname.lastname@example.org. This article has been prepared for informational purposes only and is not legal advice.