Latest News - Virginia Retail Federation

We have wrapped up week four of the 2022 General Assembly Session. Next Tuesday, February 15^th, is Crossover, therefore all action must be taken on legislation in the Body of origin by then. If action is not taken before Midnight on February 15^th, then the legislation will fail to Crossover and will be dead for the year. Below is a summary of key legislation that has had action in the last week.

To view our complete tracking list, please click here.

Minimum Wage

HB 1040 - Scott, P.A. - Minimum wage; small employers. (H) Subcommittee recommends reporting (6-Y 4-N)

Exempts employers that are individuals or entities with 10 or fewer employees from the state minimum wage requirements.

Paid Leave

HB 1156 - Byron - Private family leave insurance; establishes as a class of insurance. (H) Reported from Commerce and Energy with amendment(s) (22-Y 0-N)

Establishes family leave insurance as a class of insurance. The bill defines " family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member who is a service member is on active duty or has been notified of an impending call or order to active duty. Under the bill, family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer. The bill prohibits delivery or issue for delivery of a family leave insurance policy unless a copy of the form and the rate manual showing rates, rules, and classification of risks have been filed with the State Corporation Commission. The bill prohibits an individual certificate and enrollment form from being used in connection with a group family leave insurance policy unless the form for the certificate and enrollment form have been filed with the Commission. The bill provides that "life and annuities insurance agent" means an agent licensed in the Commonwealth to sell, solicit, or negotiate, among other types of insurance, family leave insurance, on behalf of insurers licensed in the Commonwealth.

SB 1 - Boysko - Paid family and medical leave program; Virginia Employment Commission required to establish. (S) Carried over for the year (defeated ) by Senate Commerce and Labor Committee) (15-Y 0-N)

Requires the Virginia Employment Commission to establish and administer a paid family and medical leave program with benefits beginning January 1, 2025. Under the program, benefits are paid to eligible employees for family and medical leave. Funding for the program is provided through premiums assessed to employers and employees beginning in 2024. The amount of a benefit is 80 percent of the employee's average weekly wage, not to exceed 80 percent of the state weekly wage, which amount is required to be adjusted annually to reflect changes in the statewide average weekly wage. The measure caps the duration of paid leave at 12 weeks in any application year. The bill provides self-employed individuals the option of participating in the program.

SB 15 - Favola - Insurance; paid family leave. (S) Passed by Senate Commerce and Labor Committee (14-Y 1-N)

Establishes paid family leave as a class of insurance. The bill defines "paid family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces of the United States. Under the bill, paid family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer.

SB 352 - Surovell - Health care providers and grocery store workers, etc.; employers to provide paid sick leave. (S) Senate Commerce and Labor Committee Rereferred to Finance and Appropriations Committee (12-Y 3-N)

Requires employers to provide paid sick leave to health care providers, grocery store workers, and home health workers who provide agency-directed services. Under current law, employers are only required to provide paid sick leave to home health workers who provide consumer-directed services. The bill removes requirements that workers work on average at least 20 hours per week or 90 hours per month to be eligible for paid sick leave. Additionally the bill provides that certain health care providers may waive their right to accrue and use paid sick leave and provides an exemption for certain other health care providers.

INFORM

SB 341 - Barker - Consumer protection; online marketplace, high-volume third-party sellers. (S) Reported from Senate General Laws and Technology Committee (7-Y 3-N 5-A). Is now on the Floor of the Senate.

Establishes requirements for high-volume third-party sellers, defined in the bill as participants in an online marketplace that have entered into at least 200 discrete sales or transactions for 12 continuous months during the past 24 months resulting in accumulation of an aggregate total of $5,000 or more in gross revenues. The bill requires high-volume third-party sellers to provide identifying information and contact information to the online marketplace and requires the online marketplace to verify the information upon receipt. The bill requires that high-volume third-party sellers make certain conspicuous disclosures to consumers on their product listing pages, with certain limited exceptions. The bill authorizes the Attorney General to initiate an action in the name of the Commonwealth against an online marketplace or high-volume third party seller that has violated the provisions of the bill and either failed to cure the violation within a 30-day cure period or failed to comply with an express written statement to the Attorney General that the alleged violations have been cured and no further violations will occur. The Attorney General may seek an injunction to restrain any such violations and civil penalties of up to $7,500 for each such violation.

Overtime

HB 1173 - Ware - Fair Labor Standards Act; overtime, employer liability. (H) VOTE: Passage (59-Y 40-N)

Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act.

SB 631 - Barker - Fair Labor Standards Act; overtime, employer liability. (S) Reported and referred to Senate Finance and Appropriations Committee (15-Y 0-N)

Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act.

Sales Tax Increase

HB 63 - Edmunds - Sales and use tax, local; additional tax in Prince Edward County to support construction of schools. (H) Subcommittee recommends laying on the table (5-Y 3-N)

Adds Prince Edward County to the list of localities that, under current law, are authorized to impose an additional local sales and use tax at a rate not to exceed one percent, with the revenue used only for capital projects for the construction or renovation of schools.

HB 531 - Hudson - Sales and use tax, additional local; revenues to support construction or renovation of schools. (H) Subcommittee recommends laying on the table (5-Y 3-N)

Authorizes all counties and cities to impose an additional local sales and use tax at a rate not to exceed one percent, with the revenue used only for capital projects for the construction or renovation of schools. Under the bill, the tax can only be imposed if it is initiated by a resolution of the local governing body and approved by the voters in a referendum. The bill requires the governing body to specify in the enacting ordinance the time period, not to exceed 20 years, for which the tax would be imposed, and revenue from the tax is required to be used solely for capital projects for new construction or major renovation of schools in the locality enacting the tax.

Under current law, only Charlotte County, Gloucester County, Halifax County, Henry County, Mecklenburg County, Northampton County, Patrick County, Pittsylvania County, and the City of Danville are authorized to impose such a tax.

Elimination of Grocery Tax

HB 90 - McNamara - Sales tax; exemption for food purchased for human consumption & essential personal hygiene products. (H) Referred to Committee on Appropriations

Exempts food purchased for human consumption and essential personal hygiene products (the grocery tax) from all state, regional, and local sales taxes. The bill dedicates state sales tax revenue to provide a supplemental school payment to counties and cities. For fiscal year 2023, the payment is the county or city's fiscal year 2022 distribution of revenue from the grocery tax. For fiscal year 2024 and after, the payment is the previous year's payment multiplied by the county or city's local sales tax index, defined in the bill as the ratio by which sales tax revenues in a county or city for the current year exceed the previous year's revenues.

HB 696 - Keam - Retail Sales and Use tax; exemption for essential personal hygiene products. (H) Tabled in Finance (16-Y 5-N)

Provides a sales and use tax exemption for essential personal hygiene products, defined in the bill as (i) nondurable incontinence products such as diapers, disposable undergarments, pads, and bed sheets and (ii) menstrual cups and pads, panty liners, sanitary napkins, tampons, and other products used to absorb or contain menstrual flow. Under current law, such products are taxed at a reduced state sales and use tax rate of 1.5 percent and the standard local rate of one percent. The bill contains technical amendments.

HB 848 - Lopez - Retail Sales and Use tax; exemption for incontinence products. (H) Tabled in Finance (14-Y 7-N)

Provides a sales and use tax exemption for nondurable incontinence products such as diapers, disposable undergarments, pads, and bed sheets. Under current law, such products are taxed at a reduced state sales and use tax rate of 1.5 percent and the standard local rate of one percent.

Other Tax Issues

HB 551 - Scott, D.L. - Retail Sales and Use Tax; exemption for medicine and drugs purchased by veterinarians. (S) Referred to Committee on Finance and Appropriations.

Exempts veterinarians from sales and use tax on the purchase or prescription of medicines and drugs that are administered to patients within a veterinarian-client-patient relationship. The bill repeals provisions of current law which provide that a veterinarian dispensing or selling medicines or drugs on prescription shall be deemed to be the user or consumer of all such medicines and drugs.

HB 685 - Hope - Tobacco retail licensing; penalties. (H) Subcommittee recommends laying on the table (7-Y 1-N)

Prohibits any person from selling any tobacco product at retail without first obtaining a license from the Alcoholic Beverage Control Authority (the Authority). The bill prohibits the sale of tobacco products and hemp products intended for smoking from vending machines. The bill imposes civil penalties on licensees for selling tobacco products without a license and for selling tobacco products to persons under age 21. Licenses would be subject to annual renewal and subject to revocation for violations of federal, state, or local laws related to tobacco products. The bill creates the Tobacco Retail Administration Subfund for the purpose of funding the Authority's costs of administering licenses and enforcing laws related to tobacco retail licensing.
The bill updates, for the purpose of the crime of selling or distributing tobacco products to a person younger than 21 years of age, the definition of "tobacco products" by including in such definition products currently defined as nicotine vapor products or alternative nicotine products. The bill also removes provisions prohibiting the attempt to purchase, purchase, or possess tobacco products and hemp products intended for smoking by persons younger than 21 years of age. The bill also removes the exception allowing the sale of tobacco products to active-duty military personnel who are 18 years of age or older.

HB 518 - Head - Sales and transient occupancy taxes; accommodations intermediaries. (H) Reported from House Finance Committee with a Substitute (21-Y 0-N) – On the Floor of the House

Changes the process by which sales and transient occupancy taxes are collected from accommodations sales involving accommodations intermediaries. Under current law, accommodations intermediaries remit these taxes to the Department of Taxation or a locality, or a hotel, depending on the circumstances. The bill requires accommodations intermediaries to collect such taxes and remit them to the Department of Taxation or a locality, as applicable. The bill also provides that in a transaction involving multiple parties that may be considered accommodations intermediaries, such parties may agree that one party shall be responsible for collecting and remitting the taxes. In such event, the party agreeing to collect and remit such taxes shall be the sole party liable for the tax.
The bill also broadens the definition of accommodations intermediary. The bill directs the Department of Taxation to publish guidelines on implementation of the bill by August 1, 2022. The substantive provisions of the bill have a delayed effective date of October 1, 2022.

HB 1076 - McNamara - Cigarette tax, local; identifying unsold inventory, localities that increase taxes. (H) Subcommittee recommends reporting (8-Y 0-N)

Requires any locality that increases its cigarette tax rate to allow, for one calendar year after the increase, a person with unsold inventory to pay the tax increase on the unsold inventory by filing a return, rather than requiring the use of a stamp or meter impression. The bill imposes a duty on regional cigarette tax boards to effectuate the policy.

HB 1199 - Ware - Tobacco products tax; remote retail sales. (H) Subcommittee recommends reporting with amendments (8-Y 0-N)

Imposes the tobacco products tax on cigars and pipe tobacco sold by remote retail sellers, defined in the bill, to consumers in the Commonwealth. The bill provides that such remote retail sellers must be licensed to avoid penalties for such sales and requires such remote retail sellers to maintain records and file a monthly report to the Department of Taxation.

SB 12 - Suetterlein - Taxes, local; surplus revenues. (S) Read third time and passed Senate (39-Y 0-N)

Grants localities permissive authority to return surplus personal property tax revenues to taxpayers. Under current law, localities may return only surplus real property tax revenues

SB 748 - McDougle - Tobacco products tax; remote retail sales. (S) Read third time and passed Senate (39-Y 0-N)

Imposes the tobacco products tax on cigars and pipe tobacco sold by remote retail sellers, defined in the bill, to consumers in the Commonwealth. The bill provides that such remote retail sellers must be licensed to avoid penalties for such sales and requires such remote retail sellers to maintain records and file a monthly report to the Department of Taxation.

Conformity and PPP Deductibility

HB 273 - McNamara - Income tax, state; subtractions and deductions related to Paycheck Protection Program loans. (H) Failed to report (defeated) in Finance (8-Y 13-N)

Provides that certain income tax subtractions and deductions for business expenses funded by federal Paycheck Protection Program loans and for grant funds received through the Rebuild Virginia program shall be available for taxable year 2019 and shall not be subject to any limit for taxable years 2019 and 2020. Under current law, such subtractions and deductions are available only for taxable year 2020 and are subject to a limit of $100,000. The effect of making such subtractions and deductions available for taxable year 2019 would be to allow certain taxpayers whose fiscal year does not match the calendar year to claim such subtractions and deductions

HB 971 - Byron - Commonwealth's taxation system; conformity with the Internal Revenue Code, etc. (H) VOTE: Passage Emergency (100-Y 0-N) -EMERGENCY Legislation (which means it requires a 2/3 vote and it goes into effect as soon as the Governor signs it)

Advances Virginia's date of conformity with the Internal Revenue Code from December 31, 2020, to December 31, 2021. The bill also deconforms from provisions of the (i) federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) related to the net operating loss limitation and carryback, a loss limitation applicable to taxpayers other than corporations, the limitation on business interest, and certain loan forgiveness and other business financial assistance and (ii) federal American Rescue Plan Act related to restaurant revitalization grants and emergency injury disaster loans received for taxable years beginning before January 1, 2021. The bill also increases from $100,000 to $1 million the maximum individual and corporate income tax deduction or subtraction, as applicable, for Rebuild Virginia grants and certain amounts related to Paycheck Protection Program loans for taxable year 2020. The bill contains an emergency clause.

SB 94 - Howell - Commonwealth's taxation system; conformity with the Internal Revenue Code, etc. (S) Reported from Senate Finance and Appropriations Committee (16-Y 0-N). Now on the Floor of the Senate – EMERGENCY Legislation (which means it requires a 2/3 vote and it goes into effect as soon as the Governor signs it)

Advances Virginia's date of conformity with the Internal Revenue Code from December 31, 2020, to December 31, 2021. The bill also deconforms from provisions of the (i) federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) related to the net operating loss limitation and carryback, a loss limitation applicable to taxpayers other than corporations, the limitation on business interest, and certain loan forgiveness and other business financial assistance and (ii) federal American Rescue Plan Act related to restaurant revitalization grants and emergency injury disaster loans received for taxable years beginning before January 1, 2021. The bill contains an emergency clause.

Privacy

HB 381 - Davis - Consumer Data Protection Act; data deletion request. (H) Reported from General Laws (21-Y 0-N)

Authorizes a controller of personal data to treat a consumer request to delete data obtained by a third party about a consumer as a request to opt the consumer out of the processing of that data for (i) targeted advertising, (ii) the sale of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

HB 714 - Hayes - Consumer Data Protection Act; enforcement, abolishes Consumer Privacy Fund. (H) Subcommittee recommends reporting with substitute (8-Y 0-N)

Authorizes the Attorney General to pursue actual damages to consumers to the extent they exist if a controller or processor of the personal data of Virginians continues to violate the Consumer Data Protection Act following a 30-day cure period offered by the Attorney General or breaches an express written statement provided to the Attorney General. Political organizations are classified as nonprofit organizations and thus exempt from the Act. The bill specifies that the Attorney General may deem whether a cure under the provisions of the Act is possible for consumers. In addition, the bill abolishes the Consumer Privacy Fund and all civil penalties, expenses, and attorney fees collected from enforcement of the Act shall be deposited into the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.

SB 393 - Ebbin - Consumer Data Protection Act; data deletion request. (S) Reported from Senate General Laws and Technology Committee with a Substitute (14-Y 0-N 1-A). Is now on the Floor of the Senate

Authorizes a controller of personal data to treat a consumer request to delete data obtained by a third party about a consumer as a request to opt the consumer out of the processing of that data for (i) targeted advertising, (ii) the sale of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

ABC

HB 426 - Bulova - Alcoholic beverage control; delivery of alcoholic beverages, third-party delivery license. (H) VOTE: Passage (94-Y 3-N)

Creates a third-party delivery license that authorizes the licensee to deliver alcoholic beverages purchased by consumers from other retail licensees. The bill establishes conditions for the issuance of third-party delivery licenses, imposes eligibility requirements for delivery personnel, and sets forth requirements for a delivery to be made by such delivery personnel. The bill imposes a $2,500 fine for first-time violations of the delivery requirements and a $5,000 fine for second and subsequent violations. The bill also establishes container requirements for certain alcoholic beverages sold for off-premises consumption or delivery. The bill requires that such alcoholic beverages, if not contained in the manufacturer's original sealed container, (i) be enclosed in a container that has no straw holes or other openings and is sealed in a manner that allows a person to readily discern whether the container has been opened or tampered with; (ii) display the name of the licensee from which the alcoholic beverages were purchased; (iii) be clearly marked with the phrase "contains alcoholic beverages"; (iv) have a maximum volume of 16 ounces per beverage for certain beverages; and (v) be stored in the trunk of the vehicle, in an area that is rear of the driver's seat, in a locked container or compartment or, in the case of delivery by bicycle, in a compartment behind the bicyclist during delivery. The bill also excludes from the rebuttable presumption in current law that a person is consuming alcohol while driving any person who is delivering an alcoholic beverage in accordance with the provisions of the bill. The bill directs the Virginia Alcoholic Beverage Control Authority to collect data regarding the compliance of third-party delivery licensees with the provisions of the bill and report such data to the Chairmen of the House Committee on General Laws and the Senate Committee on Rehabilitation and Social Services by November 1, 2023. The bill extends from July 1, 2022, to July 1, 2024, the sunset on prior legislation that allowed certain licensees to sell mixed-beverages for off-premises consumption.

HB 455 - Knight - Casino gaming; sale and consumption of alcoholic beverages in establishments, etc. (H) Reported from House General Laws Committee with Substitute (19-Y 2-N). Is now on the Floor of the House.

Authorizes the Board of Directors of the Virginia Alcoholic Beverage Control Authority (the Board) to issue a mixed beverage casino license. The issuance of such license is limited to a casino gaming establishment owned by a casino operator licensed under Virginia law. The bill provides for the sale and service of alcoholic beverages for on-premises consumption in areas designated by the Board during all hours of operation of the casino gaming establishment and authorizes the licensee to provide gifts of alcoholic beverages to players and establish loyalty or reward credit programs under certain conditions. In addition, the bill provides that a mixed beverage restaurant licensee located on the premises of a casino gaming establishment may sell alcoholic beverages for on-premises consumption on the licensed premises of the restaurant during all hours of operation of the establishment and that any alcoholic beverages purchased from a restaurant on the premises of a casino gaming establishment may be removed from the premises of the licensee and possessed and consumed in areas of the establishment as designated by the Board. Under the bill, a mixed beverage restaurant licensee located on the premises of and operated by a casino gaming establishment holding a valid license issued by the Board prior to July 1, 2022, is authorized to operate with the privileges of a mixed beverage casino license as created by the bill until the casino gaming establishment is issued a mixed beverage casino license or July 1, 2023, whichever occurs first. The Board may promulgate any regulations that it deems necessary for implementing the provisions of the bill no later than October 1, 2022. The initial adoption of regulations are exempt from the Administrative Process Act, except that the Board shall provide an opportunity for public comment on the regulations prior to adoption. The bill also (i) revises the definition of "gross receipts" to include electronic credits and electronic cash and to exclude the cash value of promotions or credits under certain conditions and uncollectable counter checks; (ii) defines and authorizes the use of counter checks and prepaid access instruments; (iii) authorizes wagers to be conducted using electronic credits and electronic cash; and (iv) excludes conviction of misdemeanor possession of marijuana as a disqualifier for the issuance of a service permit by the Virginia Lottery.

HB 1251 - Fowler - Alcoholic beverage control; operation of government stores, sale of nonalcoholic spirits. (H) VOTE: Block Vote Passage (98-Y 0-N)

Allows government stores of the Virginia Alcoholic Beverage Control Authority to sell nonalcoholic spirits.

SB 254 - Bell - Alcoholic beverage control; delivery of alcoholic beverages, third-party delivery license. (S) Reported from Senate Rehabilitation and Social Services Committee with a Substitute (12-Y 2-N). Is now on the Floor of the Senate.

Creates a third-party delivery license that authorizes the licensee to deliver alcoholic beverages purchased by consumers from other retail licensees. The bill establishes conditions for the issuance of third-party delivery licenses, imposes eligibility requirements for delivery personnel, and sets forth requirements for a delivery to be made by such delivery personnel. The bill imposes a $2,500 fine for first-time violations of the delivery requirements and a $5,000 fine for second and subsequent violations. The bill also establishes container requirements for certain alcoholic beverages sold for off-premises consumption or delivery. The bill requires that such alcoholic beverages, if not contained in the manufacturer's original sealed container, (i) be enclosed in a container that has no straw holes or other openings and is sealed in a manner that allows a person to readily discern whether the container has been opened or tampered with; (ii) display the name of the licensee from which the alcoholic beverages were purchased; (iii) be clearly marked with the phrase "contains alcoholic beverages"; (iv) have a maximum volume of 16 ounces per beverage for certain beverages; and (v) be stored in the trunk of the vehicle, in an area that is rear of the driver's seat, in a locked container or compartment or, in the case of delivery by bicycle, in a compartment behind the bicyclist during delivery. The bill also excludes from the rebuttable presumption in current law that a person is consuming alcohol while driving any person who is delivering an alcoholic beverage in accordance with the provisions of the bill. The bill directs the Virginia Alcoholic Beverage Control Authority to collect data regarding the compliance of third-party delivery licensees with the provisions of the bill and report such data to the Chairmen of the House Committee on General Laws and the Senate Committee on Rehabilitation and Social Services by November 1, 2023. The bill extends from July 1, 2022, to July 1, 2024, the sunset on prior legislation that allowed certain licensees to sell mixed-beverages for off-premises consumption.

SB 519 - Lucas - Casino gaming; sale and consumption of alcoholic beverages in establishments, etc. (S) Reported from Senate General Laws and Technology Committee with Substitute (13-Y 2-N). Is now on the Floor of the Senate.

Authorizes the Board of Directors of the Virginia Alcoholic Beverage Control Authority (the Board) to issue a mixed beverage casino license. The issuance of such license is limited to a casino gaming establishment owned by a casino operator licensed under Virginia law. The bill provides for the sale and service of alcoholic beverages for on-premises consumption in areas designated by the Board during all hours of operation of the casino gaming establishment and authorizes the licensee to provide gifts of alcoholic beverages to players and establish loyalty or reward credit programs under certain conditions. In addition, the bill provides that a mixed beverage restaurant licensee located on the premises of a casino gaming establishment may sell alcoholic beverages for on-premises consumption on the licensed premises of the restaurant during all hours of operation of the establishment and that any alcoholic beverages purchased from a restaurant on the premises of a casino gaming establishment may be removed from the premises of the licensee and possessed and consumed in areas of the establishment as designated by the Board. Under the bill, a mixed beverage restaurant licensee located on the premises of and operated by a casino gaming establishment holding a valid license issued by the Board prior to July 1, 2022, is authorized to operate with the privileges of a mixed beverage casino license as created by the bill until the casino gaming establishment is issued a mixed beverage casino license or July 1, 2023, whichever occurs first. The Board may promulgate any regulations that it deems necessary for implementing the provisions of the bill no later than October 1, 2022. The initial adoption of regulations are exempt from the Administrative Process Act, except that the Board shall provide an opportunity for public comment on the regulations prior to adoption. The bill also (i) revises the definition of "gross receipts" to include electronic credits and electronic cash and to exclude the cash value of promotions or credits under certain conditions and uncollectable counter checks; (ii) defines and authorizes the use of counter checks and prepaid access instruments; (iii) authorizes wagers to be conducted using electronic credits and electronic cash; and (iv) excludes conviction of misdemeanor possession of marijuana as a disqualifier for the issuance of a service permit by the Virginia Lottery.

SB 555 - Obenshain - Alcohol; liability for sale to an underage person. (S) Failed to report (defeated) in Judiciary (4-Y 10-N)

Creates a cause of action against an alcoholic beverage control retail licensee who sells alcohol to an underage person who was visibly intoxicated if the consumption of the alcohol caused or contributed to an injury to person or property while the underage person operated a motor vehicle. The plaintiff must prove such negligence by a clear and convincing evidence standard.

Food Delivery

HB 460 - Bennett-Parker - Food delivery platforms; fee transparency. (H) Subcommittee recommends laying on the table (7-Y 3-N)

Requires each agreement between a restaurant and a food delivery platform to disclose all fees charged by the food delivery platform. Prior to confirming an online order, a food delivery platform must clearly display the baseline cost of the food order and any additional fees associated with the order. However, under the bill, a restaurant, operating through an independent ordering system that includes the option of delivery by a food delivery platform may elect to display only the total order cost rather than listing each associated fee.

Small Business

HB 476 - Murphy - Retail Small Business Grant Program and Fund; created. (H) Subcommittee recommends referring to Committee on Appropriations

Establishes the Retail Small Business Grant Program and Fund to support existing Virginia small businesses, attract new businesses, increase the Commonwealth's tax base, create new job opportunities for Virginia residents, and enhance commercial activity in Virginia. The bill provides that an eligible Virginia small business, defined in the bill, is eligible for grants of up to $50,000. The total amount of grants awarded in a fiscal year is capped at $10 million.

SB 128 - Obenshain - Small Business and Supplier Diversity, Department of; redefines "small business." (S) Passed Senate (40-Y 0-N)

Redefines "small business" for the purpose of programs for the Department of Small Business and Supplier Diversity and programs for the Virginia Public Procurement Act to allow a cooperative association organized pursuant to Chapter 3 (Cooperative Associations) of Title 13.1 as a nonstock corporation to qualify as a small business if it is at least 51 percent independently controlled by one or more members who are U.S. citizens or legal resident aliens and, together with affiliates, has 250 or fewer employees or average annual gross receipts of $10 million or less averaged over the previous three years.

Class Action and Arbitration

HB 505 - Mullin - Civil actions; filed on behalf of multiple persons. (H) Subcommittee recommends laying on the table (5-Y 3-N)

Provides that a circuit court may enter an order joining, coordinating, consolidating, or transferring civil actions upon finding that separate civil actions brought by a plaintiff on behalf of multiple similarly situated persons involve common questions of law or fact and arise out of the same transaction, occurrence, or series of transactions or occurrences. The bill requires the Supreme Court to promulgate rules no later than November 1, 2022, governing such actions. The bill has a delayed effective date of July 1, 2023.

SB 309 - Edwards - Consumer Protection Act; prohibited practices, certain restrictive provisions. (S) Reported from Senate General Laws and Technology Committee (8-Y 7-N). Now on the Floor of the Senate.

Provides that it is a violation of the Consumer Protection Act for a supplier in connection with a consumer transaction to use any provision in any contract or written agreement that restricts a consumer's right to file a civil action to resolve a dispute that arises in connection with a consumer transaction that does not involve interstate commerce. The bill provides that such provisions are void and unenforceable

Employer Mandates

HB 532 - Convirs-Fowler - Public accommodations, employment, and housing; prohibited discrimination. (H) Subcommittee recommends striking from docket (7-Y 0-N)

Prohibits discrimination in public accommodations, employment, and housing on the basis of a person's political affiliation.

HB 676 - Hope - Fair Labor Standards Act waiver; employees with disabilities. (H) Subcommittee recommends laying on the table (6-Y 4-N)

Removes the provision of the Code stating that any person who is paid pursuant to Section 14(c) of the Fair Labor Standards Act is not considered an employee for the purposes of the Virginia Minimum Wage Act.

SB 271 - Ebbin - Living organ donors; discrimination prohibited, unpaid leave, civil penalty. (S) Read third time and passed Senate (39-Y 0-N)

Prohibits any person from refusing to insure, refusing to continue to insure, or limiting the amount or extent of life insurance, disability insurance, or long-term care insurance coverage available to an individual or to charge an individual a different rate for the same coverage based solely and without any additional actuarial risks upon the status of such individual as a living organ donor. The bill requires that an employer that employs 15 or more employees provide eligible employees with (i) up to 60 business days of unpaid organ donation leave in any 12-month period to serve as an organ donor and (ii) up to 30 business days of unpaid organ donation leave in any 12-month period to serve as a bone marrow donor. The bill requires the employer to restore the employee's position following the leave, to continue to provide coverage for the employee under any health benefit plan, and to pay the employee any commission earned prior to the leave. The bill prohibits the employer from taking retaliatory action against the employee for taking organ donation leave. The bill requires the Commissioner of Labor and Industry to enforce its provisions and provides for civil penalties for violations of its requirements.

SB 447 - Boysko - Wage or salary history inquiries; prohibited, civil penalty. Reported from Senate Commerce and Labor Committee (12-Y 3-N)

Prohibits a prospective employer from (i) seeking the wage or salary history of a prospective employee; (ii) relying on the wage or salary history of a prospective employee in determining the wages or salary the prospective employee is to be paid upon hire; (iii) relying on the wage or salary history of a prospective employee in considering the prospective employee for employment; (iv) refusing to interview, hire, employ, or promote a prospective employee or otherwise retaliating against a prospective employee for not providing wage or salary history; and (v) failing or refusing to provide a prospective employee the wage or salary range for the position for which the prospective employee is applying prior to discussing compensation and at any time upon the prospective employee's request. The bill establishes a cause of action for an aggrieved prospective employee or employee and provides that an employer that violates such prohibitions is liable to the aggrieved prospective employee or employee for statutory damages between $1,000 and $10,000 or actual damages, whichever is greater, reasonable attorney fees and costs, and any other legal and equitable relief as may be appropriate. The bill also provides for civil penalties for violations not to exceed $1,000 for a first violation, $2,000 for a second violation, and $4,000 for a third or subsequent violation.

SB 407 - Dunnavant - Disability insurance; disability arising out of childbirth. (S) Reported from Senate Commerce and Labor Committee (S) Reported from Senate Commerce and Labor Committee (9-Y 6-N)

Requires each insurer proposing to issue individual or group accident and sickness insurance policies providing short-term disability income protection coverage whose policies provide coverage for short-term disability arising out of childbirth to provide coverage for a payable benefit of at least 12 weeks following childbirth.

Unemployment Compensation and Workers Compensation

HB 640 - Carr - Unemployment compensation; invalid claims not eligible for appeal. (H) Subcommittee recommends laying on the table (7-Y 0-N)

Provides that a claim for unemployment benefits that has been determined invalid by the Virginia Employment Commission as a result of the claimant's monetary ineligibility is not eligible for appeal through the Commission's appeals division.

HB 652 - Wampler - Unemployment compensation; notice of hearing prior to discontinuing benefits, etc. (H) Reported from House Commerce and Energy Committee (22-Y 0-N). Now on the Floor of the House EMERGENCY Legislation (which means it requires a 2/3 vote and it goes into effect as soon as the Governor signs it)

Requires the Virginia Employment Commission to provide claimants with notice and an opportunity to present evidence prior to discontinuing benefits to which a claimant was previously entitled. The bill waives the requirement to repay penalties associated with overpayment for claimants who were awarded state pandemic unemployment assistance between March 12, 2020, and September 1, 2020. The bill directs the Commission to conduct an incarceration check and employment ID check prior to awarding benefits to any individual. The bill contains an emergency clause.

HB 1201 - Byron - Unemployment compensation; disqualification for benefits, etc. (H) Reported from Commerce and Energy (12-Y 10-N)

Provides that for the purposes of the Virginia Employment Commission determining if an individual was separated or partially separated from employment for misconduct and would be disqualified for unemployment benefits, the term "misconduct" does not include an employee's refusal to receive or receive in part any primary series or booster shot of a vaccine for the prevention of COVID-19.

SB 226 - McPike - Workers' compensation; notice to employees. (S) Read third time and passed Senate (21-Y 19-N)

Requires each employer subject to the Virginia Workers' Compensation Act to provide notice to covered employees of the employees' right to dispute a claim through the Virginia Workers' Compensation Commission. Such notice must include specific text as included in the bill. The bill also provides that an employer who fails to provide such notice may be subject to the civil penalty provisions of the Virginia Workers' Compensation Act.

SB 655 - Ebbin - Unemployment compensation; required written notice upon separation.

Requires each employer to provide each individual who is separated from such employer a written notice that includes the individual's name and social security number, the employer's legal name and unemployment tax account number, the reason for separation, and information on the individual's right to apply for unemployment compensation. The bill requires that such written notice be mailed to the individual's last known address or otherwise provided to the individual within three days of the separation. The bill requires the Virginia Employment Commission to establish and make available a sample form notice that an employer may use to comply with such notice requirement. The bill authorizes the Virginia Employment Commission to request, at any time, that an employer submit information related to a claim including separation information through electronic means unless the employer has been granted a waiver by the Commission.

Non-Payment of Wages

HB 889 - Kilgore - Nonpayment of wages; defense of contractor. (H) VOTE: Passage (63-Y 37-N)

Provides that a contractor, regardless of tier, has a valid defense to a claim for nonpayment of wages if he obtains a written certification from the subcontractor stating that (i) the subcontractor and each of his sub-subcontractors has paid all employees all wages due for the period during which the wages are claimed for the work performed on the project and (ii) to the subcontractor's knowledge, all sub-subcontractors below the subcontractor, regardless of tier, have similarly paid their employees all such wages.

SB 538 - Peake - Nonpayment of wages; defense of contractor. (S) Senate Commerce and Labor Committee Reported with Substituted (14-Y 1-N)

Provides that a contractor, regardless of tier, has a valid defense to a claim for nonpayment of wages if he obtains a written certification from the subcontractor stating that (i) the subcontractor and each of his sub-subcontractors has paid all employees all wages due for the period during which the wages are claimed for the work performed on the project and (ii) to the subcontractor's knowledge, all sub-subcontractors below the subcontractor, regardless of tier, have similarly paid their employees all such wages.

Permit Issues

HB 837 - Wilt - Food and drink law; permitting requirements. (H) Reported from House Agriculture, Chesapeake and Natural Resources Committee with amendments (22-Y 0-N). Now on Floor of the House.

Requires any food manufacturer, food storage warehouse, and retail food establishment to obtain a permit from the Commissioner of the Department of Agriculture and Consumer Services prior to operating. Any such entity issued a permit would be exempt from any other license, permit, or inspection required for the sale, preparation, or handling of food. The bill requires the Commissioner to notify such entities of the reason for denial of a permit and requires that any denial, suspension, or revocation of a permit be carried out in accordance with the Administrative Process Act.

We wrapped up week three of the 2022 General Assembly Session and several issues important to the Retail Industry have started to make their way through the legislative process. Below is a summary of key legislation that has had action in the last week.

To view our complete tracking list, please click here.

Minimum Wage

HB 296 - McNamara - Minimum wage; removes certain provisions relating to increasing state wage. On the House Floor

Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.

HB 320 - Freitas - Minimum wage; removes certain provisions relating to increasing state wage. On the House Floor

Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.

Paid Leave

Several pieces of legislation have been introduced on the topic of paid leave. Many of them mandate paid leave for employers. However, the legislation introduced by Senator Favola creates a class of insurance for family leave. This policy would be available for employers to provide for employees as a part of their benefits program if they so choose, but it would not be mandated. This is an option for businesses that cannot afford to offer a robust paid family leave program individually but would like to be able to provide such benefits for their employees. Delegate Byron is carrying the companion bill in the House, and it should be heard in Committee later this week.

SB 15 - Favola - Insurance; paid family leave. Recommended by Subcommittee to report 3-Y 0-N

Establishes paid family leave as a class of insurance. The bill defines "paid family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces of the United States. Under the bill, paid family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer.

SB 1 - Boysko - Paid family and medical leave program; Virginia Employment Commission required to establish. Recommend by Subcommittee that the bill be over for the year 3-Y 0-N

Requires the Virginia Employment Commission to establish and administer a paid family and medical leave program with benefits beginning January 1, 2025. Under the program, benefits are paid to eligible employees for family and medical leave. Funding for the program is provided through premiums assessed to employers and employees beginning in 2024. The amount of a benefit is 80 percent of the employee's average weekly wage, not to exceed 80 percent of the state weekly wage, which amount is required to be adjusted annually to reflect changes in the statewide average weekly wage. The measure caps the duration of paid leave at 12 weeks in any application year. The bill provides self-employed individuals the option of participating in the program.

Conformity

Delegate Byron is carrying the 2022 Conformity legislation. As introduced the bill also dealt with the PPP deduction for taxable year 2020. However, an amendment was offered in House Appropriations Committee that removed that portion of the bill. This was done because there is an emergency clause on the legislation which requires an 80% vote in favor to pass. There will still be an effort to deal with taxable year 2020 deductibility cap in other legislation that does not require an emergency clause.

HB 971 - Byron - Commonwealth's taxation system; conformity with the Internal Revenue Code, etc. Passed out of Appropriations 22-Y 0-N with amendments

Advances Virginia's date of conformity with the Internal Revenue Code from December 31, 2020, to December 31, 2021. The bill also deconforms from provisions of the (i) federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) related to the net operating loss limitation and carryback, a loss limitation applicable to taxpayers other than corporations, the limitation on business interest, and certain loan forgiveness and other business financial assistance and (ii) federal American Rescue Plan Act related to restaurant revitalization grants and emergency injury disaster loans received for taxable years beginning before January 1, 2021. The bill also increases from $100,000 to $1 million the maximum individual and corporate income tax deduction or subtraction, as applicable, for Rebuild Virginia grants and certain amounts related to Paycheck Protection Program loans for taxable year 2020. The bill contains an emergency clause.

DRAM Shop

SB 230 - Hanger - Liability for sale of alcohol to an impaired customer; injury to another person. Rolled into SB555

SB 555 - Obenshain - Alcohol; liability for sale to an underage person. Passed out of Senate Judiciary subcommittee 4-Y 4-N, will now be heard in Full Committee

Creates a cause of action against an alcoholic beverage control retail licensee who sells alcohol to an underage person who was visibly intoxicated if the consumption of the alcohol caused or contributed to an injury to person or property while the underage person operated a motor vehicle. The plaintiff must prove such negligence by a clear and convincing evidence standard.

Employer Mandates

SB 244 - Hashmi - Organ donors; unpaid leave, civil penalty. (S) Rolled into SB271 by Senate Commerce and Labor (13-Y 2-N)

Increases from five percent to 10 percent the maximum extension of existing weight limits authorized by an overweight vehicle permit. The bill retains the limit of 84,000 pounds and the maximum weight limit on interstate highways.

SB 271 - Ebbin - Living organ donors; discrimination prohibited, unpaid leave, civil penalty. (S) Rereferred to Finance and Appropriations

Prohibits any person from refusing to insure, refusing to continue to insure, or limiting the amount or extent of life insurance, disability insurance, or long-term care insurance coverage available to an individual or to charge an individual a different rate for the same coverage based solely and without any additional actuarial risks upon the status of such individual as a living organ donor. The bill requires that an employer that employs 15 or more employees provide eligible employees with (i) up to 60 business days of unpaid organ donation leave in any 12-month period to serve as an organ donor and (ii) up to 30 business days of unpaid organ donation leave in any 12-month period to serve as a bone marrow donor. The bill requires the employer to restore the employee's position following the leave, to continue to provide coverage for the employee under any health benefit plan, and to pay the employee any commission earned prior to the leave. The bill prohibits the employer from taking retaliatory action against the employee for taking organ donation leave. The bill requires the Commissioner of Labor and Industry to enforce its provisions and provides for civil penalties for violations of its requirements.

SB 494 - McClellan - Virginia Human Rights Act; nondiscrimination in employment, definition of employer. (S) Passed the Senate 21-Y 19-N

Amends 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 person. The bill provides 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 of 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 or within two years after the alleged discriminatory practice occurred, whichever is later. The bill also changes a courts award of reasonable attorney fees and costs to a successful plaintiff from discretionary to mandatory.

SB 447 - Boysko - Wage or salary history inquiries; prohibited, civil penalty. Subcommittee recommends report with delayed enactment of 1 year (2-Y 1-N)

Prohibits a prospective employer from (i) seeking the wage or salary history of a prospective employee; (ii) relying on the wage or salary history of a prospective employee in determining the wages or salary the prospective employee is to be paid upon hire; (iii) relying on the wage or salary history of a prospective employee in considering the prospective employee for employment; (iv) refusing to interview, hire, employ, or promote a prospective employee or otherwise retaliating against a prospective employee for not providing wage or salary history; and (v) failing or refusing to provide a prospective employee the wage or salary range for the position for which the prospective employee is applying prior to discussing compensation and at any time upon the prospective employee's request. The bill establishes a cause of action for an aggrieved prospective employee or employee and provides that an employer that violates such prohibitions is liable to the aggrieved prospective employee or employee for statutory damages between $1,000 and $10,000 or actual damages, whichever is greater, reasonable attorney fees and costs, and any other legal and equitable relief as may be appropriate. The bill also provides for civil penalties for violations not to exceed $1,000 for a first violation, $2,000 for a second violation, and $4,000 for a third or subsequent violation.

Mandatory Opt-Out for Automatic Renewal

HB 78 - Davis - Automatic renewal or continuous service offer to consumer; cancellation and online opt-out. Passed the House 99-Y 0-N

Requires that the supplier of automatic renewals or continuous service offers that include a free trial notify the consumer of the automatic renewal seven days prior to expiration of the free trial and obtain the consumer's affirmative consent to the automatic renewal beyond the trial period. The bill also requires that suppliers of automatic renewals or continuous service offers through an online website must make available a conspicuous online option to cancel a recurring purchase of a good or service within the website by which such purchase was made.

Workers Compensation

SB 226 - McPike - Workers' compensation; notice to employees. Passed out of Commerce and Labor 12-Y 2-N 1-A and is now on Senate Floor

Requires each employer subject to the Virginia Workers' Compensation Act to provide notice to covered employees of the employees' right to dispute a claim through the Virginia Workers' Compensation Commission. Such notice must include specific text as included in the bill. The bill also provides that an employer who fails to provide such notice may be subject to the civil penalty provisions of the Virginia Workers' Compensation Act.

HB 730 - Ward - Workers' compensation; failure to market residual capacity. (H) Subcommittee recommends laying on the table (6-Y 4-N)

Provides that an employee is not barred from receiving workers' compensation benefits due to a failure to market residual work capacity if credible evidence supports that the employee (i) is reasonably unemployable based upon age, education, work history, or medical conditions or (ii) is employable in some capacity and has registered with the Virginia Employment Commission.

HB 1002 - Guzman - Workers' compensation; injuries caused by repetitive and sustained physical stressors. (H) Subcommittee recommends laying on the table (6-Y 4-N)

Provides 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 provides that such injuries are covered under the Act. Such coverage does not require that the injuries occurred over a particular time period under the bill, provided that such a period can be reasonably identified.

Other Tax Issues

SB 25 - Ruff - Cigarette tax, local; tax increase payment on unsold inventory. (S) passed Senate (40-Y 0-N)

Requires any locality that increases its cigarette tax rate to allow, for one calendar year after the increase, a person with unsold inventory to pay the tax increase on the unsold inventory by filing a return, rather than requiring the use of a stamp or meter impression. The bill imposes a duty on regional cigarette tax boards to effectuate the policy.

HB 267 - McNamara - Taxes, local; surplus revenues. (H) Reported from Counties, Cities and Towns Committee 22-Y 0-N

Grants localities permissive authority to return surplus personal property tax revenues to taxpayers. Under current law, localities may return only surplus real property tax revenues.

Limited Liability Companies

HB 309 - Rasoul - Limited liability companies; prepayment of annual registration fees. (H) Passed the House 99-Y 0-N

Permits domestic and foreign limited liability companies to prepay annual registration fees for two or three years. Under the bill, a domestic or foreign limited liability company must make the election to prepay its annual registration fees before its annual registration fee would otherwise be due and seek approval from the State Corporation Commission to engage in prepayment for two or three years. The bill provides that such optional prepayment does not apply to the initial annual registration fees assessed against a limited liability company that is newly formed or recently converted from another entity. The bill requires that, if applicable, the Commission provide notice of this prepayment option to a foreign or domestic limited liability company that has failed to pay its annual registration fee as a method of avoiding future delinquencies.

Permit Issues

SB 32 - Marsden - Overweight vehicle permits; increases maximum extension of existing weight limits. (S) Stricken at request of Patron in Transportation (15-Y 0-N)

Increases from five percent to 10 percent the maximum extension of existing weight limits authorized by an overweight vehicle permit. The bill retains the limit of 84,000 pounds and the maximum weight limit on interstate highways.

HB 837 - Wilt - Food and drink law; permitting requirements. (H) Subcommittee recommends reporting with amendments (10-Y 0-N)

Requires any food manufacturer, food storage warehouse, and retail food establishment to obtain a permit from the Commissioner of the Department of Agriculture and Consumer Services prior to operating. Any such entity issued a permit would be exempt from any other license, permit, or inspection required for the sale, preparation, or handling of food. The bill requires the Commissioner to notify such entities of the reason for denial of a permit and requires that any denial, suspension, or revocation of a permit be carried out in accordance with the Administrative Process Act.

COVID-19

SB 189 - Chase - Employer-mandated vaccinations for COVID-19; discrimination prohibited, civil penalties. (S) Passed by indefinitely in Commerce and Labor (12-Y 2-N)

Prohibits an employer from requiring its employees to receive a vaccine for the prevention of COVID-19. The bill prohibits an employer from discrimination against an employee because the employee has or has not received a vaccine for the prevention of COVID-19. The bill also provides for civil penalties not to exceed $10,000 by an employer with fewer than 100 employees or $50,000 by an employer with 100 or more employees for each violation of the bill's provisions.

SB 548 - Chase - Virginia Human Rights Act; nondiscrimination in places of public accommodation; COVID-19. (S) Failed to report (defeated) in General Laws and Technology (7-Y 8-N)

The bill prohibits discrimination in public accommodations on the basis of an individual as having received, received in part, or not received a vaccine for the prevention of COVID-19.

SB 582 - Chase - Virginia Human Rights Act; nondiscrimination in places of public accommodation. (S) Passed by indefinitely (defeated) in General Laws and Technology (8-Y 6-N)

Prohibits discrimination in places of public accommodations including public and private elementary and secondary schools and institutions of higher education and certain private establishments because the individual is or is not wearing a face covering for the purpose of preventing the transmission of COVID-19.

ABC

SB 619 - Cosgrove - Alcoholic beverage control; food-to-beverage ratio. (S) Stricken at request of Patron in Rehabilitation and Social Services (15-Y 0-N)

Provides an alternative to the food-to-beverage ratio for mixed beverage restaurant licensees by allowing such licensees to meet applicable food sale requirements by demonstrating at least $10,000 in monthly food sales.

HB 328 - Freitas - Alcoholic beverage control; retail privatization of government stores. (H) Subcommittee recommends laying on the table (8-Y 0-N)

Provides for the issuance of a "package store" license to authorize the retail sale of alcoholic beverages for off-premises consumption. The bill provides that persons holding a retail off-premises wine and beer license are eligible to obtain a package store license. The bill also requires the Board of Directors of the Virginia Alcoholic Beverage Control Authority (the Board) to dispose of all real estate used as government stores and to terminate leased property upon which the Board has operated a government store. The bill requires the Board to complete an implementation study by January 1, 2023, on how it will privatize government stores. The bill directs the Board to adopt emergency regulations to implement the provisions of the bill. The bill contains numerous technical amendments.

HB 426 - Bulova - Alcoholic beverage control; delivery of alcoholic beverages, third-party delivery license. (H) Reported from General Laws with substitute (21-Y 1-N), Currently on the House Floor

Creates a third-party delivery license that authorizes the licensee to deliver alcoholic beverages purchased by consumers from other retail licensees. The bill establishes conditions for the issuance of third-party delivery licenses, imposes eligibility requirements for delivery personnel, and sets forth requirements for a delivery to be made by such delivery personnel. The bill imposes a $2,500 fine for first-time violations of the delivery requirements and a $5,000 fine for second and subsequent violations. The bill also establishes container requirements for certain alcoholic beverages sold for off-premises consumption or delivery. The bill requires that such alcoholic beverages, if not contained in the manufacturer's original sealed container, (i) be enclosed in a container that has no straw holes or other openings and is sealed in a manner that allows a person to readily discern whether the container has been opened or tampered with; (ii) display the name of the licensee from which the alcoholic beverages were purchased; (iii) be clearly marked with the phrase "contains alcoholic beverages"; (iv) have a maximum volume of 16 ounces per beverage for certain beverages; and (v) be stored in the trunk of the vehicle, in an area that is rear of the driver's seat, in a locked container or compartment or, in the case of delivery by bicycle, in a compartment behind the bicyclist during delivery. The bill also excludes from the rebuttable presumption in current law that a person is consuming alcohol while driving any person who is delivering an alcoholic beverage in accordance with the provisions of the bill. The bill directs the Virginia Alcoholic Beverage Control Authority to collect data regarding the compliance of third-party delivery licensees with the provisions of the bill and report such data to the Chairmen of the House Committee on General Laws and the Senate Committee on Rehabilitation and Social Services by November 1, 2023. The bill extends from July 1, 2022, to July 1, 2024, the sunset on prior legislation that allowed certain licensees to sell mixed-beverages for off-premises consumption.

HB 1251 - Fowler - Alcoholic beverage control; operation of government stores, sale of nonalcoholic spirits. (H) Reported from General Laws (22-Y 0-N), Currently on the House Floor

Allows government stores of the Virginia Alcoholic Beverage Control Authority to sell nonalcoholic spirits.

Small Business

HB 155 - March - Small Business and Supplier Diversity, Department of; business permitting program, etc. (H) Subcommittee recommends striking from docket (7-Y 0-N)

Requires the Department of Small Business and Supplier Diversity, in consultation with regulatory agencies, to make a reasonable estimation of the time required of a small business to compile information and submit an application for the comprehensive permit and for each permit not included in the comprehensive permitting program. The bill requires the Department to include in the estimation an aggregated time required estimation for each type of business and to publish the estimations on its website and update its information as necessary based on information from regulatory agencies with regard to policy and regulatory changes affecting permitting.

Privacy

HB 381 - Davis - Consumer Data Protection Act; data deletion request. (H) Subcommittee recommends reporting (8-Y 0-N)

Authorizes a controller of personal data to treat a consumer request to delete data obtained by a third party about a consumer as a request to opt the consumer out of the processing of that data for (i) targeted advertising, (ii) the sale of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

Environmental

HB 647 - Carr - Packaging Stewardship Program and Fund; established. (H) Subcommittee recommends laying on the table (6-Y 4-N)

Establishes the Packaging Stewardship Program, administered by the Department of Environmental Quality. Under the Program, a producer that sells products with packaging materials in the Commonwealth pays a fee to the Department based upon the amount of packaging used and whether or not it is easily recyclable. A producer may establish an alternative collection program to offset some or all of the fees. The fees are paid into the Packaging Stewardship Fund, established in the bill, and are used to reimburse participating localities for expenses related to recycling, invest in recycling infrastructure and education, and pay administrative costs related to the Program. The bill authorizes the Department to contract with a third party to administer the Program. The bill also establishes a Stewardship Advisory Committee, with 23 members appointed by the Director of the Department, to oversee implementation of the Program.

HB 709 - Keam - Packaging Stewardship Program and Fund; established. (H) Subcommittee recommends laying on the table (6-Y 4-N)

Establishes the Packaging Stewardship Program (the Program), administered by the Department of Environmental Quality. Under the Program, a producer that sells products with packaging materials in the Commonwealth pays a fee to the Department based upon the amount of packaging used and whether or not it is easily recyclable. A producer may establish an alternative collection program to offset some or all of the fees. The fees are paid into the Packaging Stewardship Fund, established in the bill, and are used to reimburse participating localities for expenses related to recycling, invest in recycling infrastructure and education, and pay administrative costs related to the Program. The bill authorizes the Department to contract with a third party to administer the Program.

HB 826 - Hope - Beverage container deposit and redemption program; established, civil and criminal penalties. (H) Subcommittee recommends laying on the table (10-Y 0-N)

Establishes a beverage container deposit, refund, and redemption program involving distributors, retailers, and consumers. The program would be run by a Producer Responsibility Organization under the Department of Environmental Quality. The bill creates an advisory committee, requires reporting, and imposes civil and criminal penalties for violation.

HB 918 - Lopez - Packaging Stewardship Program and Fund; established. (H) Subcommittee recommends laying on the table (6-Y 4-N)

Establishes the Packaging Stewardship Program (the Program), administered by the Department of Environmental Quality. Under the Program, a producer that sells products with packaging materials in the Commonwealth pays a fee to the Department based upon the amount of packaging used and whether or not it is easily recyclable. A producer may establish an alternative collection program to offset some or all of the fees. The fees are paid into the Packaging Stewardship Fund, established in the bill, and are used to reimburse participating localities for expenses related to recycling, invest in recycling infrastructure and education, and pay administrative costs related to the Program. The bill authorizes the Department to contract with a third party to administer the Program.

Nonpayment of Wages

HB 889 - Kilgore - Nonpayment of wages; defense of contractor. (H) Reported from Commerce and Energy with substitute (14-Y 8-N), Currently On the House Floor-

Provides that a contractor, regardless of tier, has a valid defense to a claim for nonpayment of wages if he obtains a written certification from the subcontractor stating that (i) the subcontractor and each of his sub-subcontractors has paid all employees all wages due for the period during which the wages are claimed for the work performed on the project and (ii) to the subcontractor's knowledge, all sub-subcontractors below the subcontractor, regardless of tier, have similarly paid their employees all such wages.

Overtime

HB 1173 - Ware - Fair Labor Standards Act; overtime, employer liability. On House Floor

Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act.

We wrapped up week two of the 2022 General Assembly Session and several issues important to the Retail Industry have started to make their way through the legislative process. Below is a summary of key legislation that has had action in the last week.

To view our complete tracking list, please click here.

Minimum Wage

Of the four bills introduced that relate to freezing the minimum wage increase, only two remain. Senator Peake’s legislation was defeated in the first Senate Commerce and Labor Committee meeting and Delegate Marshall’s legislation was amended to apply only to certain planning districts, and did not pass either. Now both Delegate Freitas and Delegate McNamara’s legislation will be heard in the Full Commerce and Energy Committee, and then on the House floor if they pass out of Committee.

Delegate Freitas’ legislation freezes the increase at $11 an hour, and Delegate McNamara’s was amended to allow employers to include health benefits when calculating wage for any increase scheduled increase above the current $11 an hour.

HB 171- Marshall- Minimum wage; removes certain provisions relating to increasing state wage. (H) House subcommittee amendments and substitutes offered
- Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.
HB 296- McNamara- Minimum wage; removes certain provisions relating to increasing state wage. (H) Subcommittee recommends reporting with substitute (6-Y 4-N)
- Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.
HB 320- Freitas- Minimum wage; removes certain provisions relating to increasing state wage. (H) Subcommittee recommends reporting (6-Y 4-N)
- Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.
SB 173- Peake- Minimum wage; removes certain provisions relating to increasing state wage. (S) Passed by indefinitely in Commerce and Labor (12-Y 3-N)
- Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.

Sales Tax

The three Senate Bills to increase the Sales tax to support school construction projects are now on the Senate Floor. Bothe Senator Norment and Senator Deed’s bills are for specific localities. However, Senator McClellan’s bill authorizes all counties and cities to impose an additional local sales tax at a rate not to exceed 1%, with the revenue to be used only for capital projects for the construction or renovations of schools. This would mean that localities that have not already implemented this 1% sales tax rate increase would no longer be required to come to the General Assembly to seek passage of legislation to get their name added to the list of localities allowed to implement the increased sales tax, they would just need to pass a referendum locally to increase the Sales Tax.

SB 37- Norment- Sales tax; authorizes additional local tax for constructing, etc., schools in Isle of Wight County. (S) Passed the Senate (27-Y 12-N)
- Adds Isle of Wight County to the list of localities that, under current law, are authorized to impose an extra one percent local sales tax. Revenue from the tax may be used only for constructing or renovating schools.
SB 298- Deeds- Sales and use tax, local; additional tax in City of Charlottesville to support schools. (S) Passed the Senate (28-Y 12-N)
- Adds the City of Charlottesville to the list of localities that, under current law, are authorized to impose an additional local sales and use tax at a rate not to exceed one percent, with the revenue used only for capital projects for the construction or renovation of schools.
SB 472- McClellan- Retail sales & use tax, additional local; use of revenues for construction or renovation of schools. (S) Passed the Senate (28-Y 12-N)
- Allows any county or city to levy a local general retail sales tax and a local use tax at a rate not to exceed one percent as determined by its governing body to provide revenues solely for capital projects for the construction or renovation of schools if such levy is approved in a voter referendum. Under current law, the power to levy such local sales and use taxes for the construction or renovation of schools is limited to the qualifying localities of Charlotte, Gloucester, Halifax, Henry, Mecklenburg, Northampton, Patrick, and Pittsylvania Counties and the City of Danville.

Mandatory Opt-Out for Automatic Renewal

Delegate Davis’ bill has passed out of Commerce and Energy Subcommittee, but was amended to only require those who have an online automatic renewal to also have the ability to cancel that automatic renewal online, rather than having to contact the business by some other manner.

HB 78- Davis- Automatic renewal or continuous service offer to consumer; cancellation and online opt-out. (H) Subcommittee recommends reporting with amendments (10-Y 0-N)
- Requires that the supplier of automatic renewals or continuous service offers that include a free trial notify the consumer of the automatic renewal seven days prior to expiration of the free trial and obtain the consumer's affirmative consent to the automatic renewal beyond the trial period. The bill also requires that suppliers of automatic renewals or continuous service offers through an online website must make available a conspicuous online option to cancel a recurring purchase of a good or service within the website by which such purchase was made.

Workers Compensation

SB 226- McPike- Workers' compensation; notice to employees. Passed out of Senate Commerce and Labor Committee with Amendment (12-Y 2-N 1-A)
- Requires each employer subject to the Virginia Workers' Compensation Act to provide notice to covered employees of the employees' right to dispute a claim through the Virginia Workers' Compensation Commission. Such notice must include specific text as included in the bill. The bill also provides that an employer who fails to provide such notice may be subject to the civil penalty provisions of the Virginia Workers' Compensation Act.

Other Tax Issues

SB 25- Ruff- Cigarette tax, local; tax increase payment on unsold inventory. (S) passed Senate (40-Y 0-N)
- Requires any locality that increases its cigarette tax rate to allow, for one calendar year after the increase, a person with unsold inventory to pay the tax increase on the unsold inventory by filing a return, rather than requiring the use of a stamp or meter impression. The bill imposes a duty on regional cigarette tax boards to effectuate the policy.
HB 267- McNamara- Taxes, local; surplus revenues. (H) Subcommittee recommends reporting (9-Y 0-N)
- Grants localities permissive authority to return surplus personal property tax revenues to taxpayers. Under current law, localities may return only surplus real property tax revenues.

Limited Liability Companies

HB 309- Rasoul- Limited liability companies; prepayment of annual registration fees. (H) Subcommittee recommends reporting with substitute (10-Y 0-N)
- Permits domestic and foreign limited liability companies to prepay annual registration fees for two or three years. Under the bill, a domestic or foreign limited liability company must make the election to prepay its annual registration fees before its annual registration fee would otherwise be due and seek approval from the State Corporation Commission to engage in prepayment for two or three years. The bill provides that such optional prepayment does not apply to the initial annual registration fees assessed against a limited liability company that is newly formed or recently converted from another entity. The bill requires that, if applicable, the Commission provide notice of this prepayment option to a foreign or domestic limited liability company that has failed to pay its annual registration fee as a method of avoiding future delinquencies.

Permit Issues

SB 32- Marsden- Overweight vehicle permits; increases maximum extension of existing weight limits. (S) Stricken at request of Patron in Transportation (15-Y 0-N)
- Increases from five percent to 10 percent the maximum extension of existing weight limits authorized by an overweight vehicle permit. The bill retains the limit of 84,000 pounds and the maximum weight limit on interstate highways.

Employer Mandates

SB 244- Hashmi- Organ donors; unpaid leave, civil penalty. (S) Rolled into SB271 by Senate Commerce and Labor (13-Y 2-N)
- Increases from five percent to 10 percent the maximum extension of existing weight limits authorized by an overweight vehicle permit. The bill retains the limit of 84,000 pounds and the maximum weight limit on interstate highways.
SB 271- Ebbin- Living organ donors; discrimination prohibited, unpaid leave, civil penalty. (S) Rereferred to Finance and Appropriations
- Prohibits any person from refusing to insure, refusing to continue to insure, or limiting the amount or extent of life insurance, disability insurance, or long-term care insurance coverage available to an individual or to charge an individual a different rate for the same coverage based solely and without any additional actuarial risks upon the status of such individual as a living organ donor. The bill requires that an employer that employs 15 or more employees provide eligible employees with (i) up to 60 business days of unpaid organ donation leave in any 12-month period to serve as an organ donor and (ii) up to 30 business days of unpaid organ donation leave in any 12-month period to serve as a bone marrow donor. The bill requires the employer to restore the employee's position following the leave, to continue to provide coverage for the employee under any health benefit plan, and to pay the employee any commission earned prior to the leave. The bill prohibits the employer from taking retaliatory action against the employee for taking organ donation leave. The bill requires the Commissioner of Labor and Industry to enforce its provisions and provides for civil penalties for violations of its requirements.
SB 494- McClellan- Virginia Human Rights Act; nondiscrimination in employment, definition of employer. (S) Reported from Senate General Laws and Technology (8-Y 7-N) and is now on the Floor of the Senate.
- Amends 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 person. The bill provides 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 of 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 or within two years after the alleged discriminatory practice occurred, whichever is later. The bill also changes a courts award of reasonable attorney fees and costs to a successful plaintiff from discretionary to mandatory.

COVID-19

SB 548- Chase- Virginia Human Rights Act; nondiscrimination in places of public accommodation; COVID-19. (S) Failed to report (defeated) in General Laws and Technology (7-Y 8-N)
- The bill prohibits discrimination in public accommodations on the basis of an individual as having received, received in part, or not received a vaccine for the prevention of COVID-19.
SB 582- Chase- Virginia Human Rights Act; nondiscrimination in places of public accommodation. (S) Passed by indefinitely (defeated) in General Laws and Technology (8-Y 6-N)
- Prohibits discrimination in places of public accommodations including public and private elementary and secondary schools and institutions of higher education and certain private establishments because the individual is or is not wearing a face covering for the purpose of preventing the transmission of COVID-19.

ABC

SB 619- Cosgrove- Alcoholic beverage control; food-to-beverage ratio. (S) Stricken at request of Patron in Rehabilitation and Social Services (15-Y 0-N)
- Provides an alternative to the food-to-beverage ratio for mixed beverage restaurant licensees by allowing such licensees to meet applicable food sale requirements by demonstrating at least $10,000 in monthly food sales.

Small Business

HB 155- March- Small Business and Supplier Diversity, Department of; business permitting program, etc. (H) Subcommittee recommends striking from docket (7-Y 0-N)
- Requires the Department of Small Business and Supplier Diversity, in consultation with regulatory agencies, to make a reasonable estimation of the time required of a small business to compile information and submit an application for the comprehensive permit and for each permit not included in the comprehensive permitting program. The bill requires the Department to include in the estimation an aggregated time required estimation for each type of business and to publish the estimations on its website and update its information as necessary based on information from regulatory agencies with regard to policy and regulatory changes affecting permitting.

We wrapped up the first week of the 2022 General Assembly Session with the Inauguration of Governor Glenn Youngkin, Lieutenant Governor Winsome Sears, and Attorney General Jason Miyares. With both the House of Delegates and the Senate duly organized and the new Administration in place, the pace of Session will pick up very quickly.

Your VRF team is up at the Capitol representing the retail voice on any issues that impact the industry. As in years past, we will be sending out Action Alerts on priority issues. It is imperative that members participate in any Action Alert you receive. This is just one more way for your voice to be heard on issues that impact your individual business.

As you may be aware, OSHA issued the Emergency Temporary Standard (ETS) that requires employers with over 100 employees to mandate the COVID-19 vaccine for all employees. Below is a brief summary of the Standard provided by the National Retail Federation.

Over the weekend, the 5^th Circuit Court of Appeals issued a Stay (temporary stop) on enforcement of the ETS until it could be further reviewed by the court. This review could happen very quickly, so it is important for employers with more than 100 employees to review the ETS, and be prepared to implement all requirements if the Stay is lifted.

We will keep you informed as more information becomes available.

EMERGENCY TEMPORARY STANDARD (ETS) SUMMARY:

By December 5, employers must:

Assess their workforce to determine who is and who is not vaccinated. Must categorize into:

Vaccinated. Employers cannot take employees’ self-attestation. Employers must see their vaccination cards and we must threaten them with criminal penalties for filing fraudulent information.
Unvaccinated and willing to get the shot. These workers must then start the process of vaccination to avoid weekly testing. Workers need to have received BOTH SHOTS by January 4, 2022. Thus, they must start the Pfizer regiment by December 14 or the Moderna regiment by December 7. Employers must offer up to four hours of paid time off, including travel time, at the employee’s regular rate of pay per dose for employees to get vaccinated. Employers may not require employees to draw down vacation time for this purpose. Employers must provide paid sick leave for a “reasonable time” to employees to recover from side effects but can insist this leave come from accrued time off.
Those for whom a vaccine is medically contraindicated.
Those for whom medical necessity requires a delay in vaccination.
Those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Refusers

Impose a mask mandate for unvaccinated employees. Mask must always cover the nose and mouth while working indoors. Masking required when occupying a vehicle with another person for work. when an employee is alone in a room with closed door. No masking required while the employee is eating or drinking. No masking required if it “creates a greater hazard.”

Employers must inform each employee about:

The requirements of the ETS
Any employer policies and procedures established pursuant to the ETS.
The efficacy, safety, and the benefits of the COVID-19 vaccine, specifically a copy of this document: “https://www.google.com/url?q=https://www4.retailmerchants.com/e/234172/iA7TKteGXC2FpI7t43D-reserved-0/2ns76t/430211076?h%3D8ZZOQbyF8m_Bh-MV_xM1y2TnVTeFc4Gkwy37kJWcuAU&source=gmail&ust=1636743499109000&usg=AOvVaw127HAa3NoxUmu-y4C1GBlV" style="color: rgb(17, 85, 204); text-decoration: none;" rel="noopener">Key Things to Know About COVID-19 Vaccines”
The fact that employers are prohibited from discriminating against an employee for reporting a work-related injury or illness and from discriminating against an employee for exercising rights under the ETS or the OSH Act.
The existence of criminal penalties for knowingly supplying false statements or documentation.

By January 4, employers must:

Implement a vaccine mandate and ensure that all workers are vaccinated.

- OR -

Allow unvaccinated workers into the workplace if and only if they produce a negative test weekly and don masks. Employers choosing this option must create a weekly testing regime for unvaccinated employees. Any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider must be removed from the workplace. Employers may pass on the costs of the weekly testing to unvaccinated employees provided they do not have a disability-based or religious-based exemption. As for kinds of test, simple home rapid antigen test kits are acceptable, but the test cannot be both self-administered and self-read by the employee. The test must be done in “the presence of the employer or a healthcare or telehealth test proctor.”

The ETS does NOT apply to:

Workplaces covered by OSHA’s earlier healthcare ETS
Workplaces that are covered by the federal contractor vaccine
Employees who do not report to a workplace where other individuals (e.g., coworkers or customers) are present
Employee working from home
Employees who work exclusively outdoors

Additional Details:

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Retail Advocate - February 8, 2022

RETAIL ADVOCATE - February 1, 2022

Retail Advocate - January 25, 2022

VRF Retail Advocate - January 18, 2022

Emergency Temporary Standard Update