General Assembly Update – Week 8

As we draw closer to the scheduled end of Session, bills are slowly making their way to the Governor’s desk. This week is scheduled to be the last week of the legislative session, with the legislature scheduled to adjourn sine die (official closing of the legislative session) on Saturday, March 9. 

As of today, 1237 bills have passed, 855 bills have failed, and 395 have been continued to 2025. This legislative session has seen an increase in bills failing in the Money Committees after first being reported from a policy committee. According to the Virginia Public Access Project, as of earlier last week, there had been 131 bills that failed in either House Appropriations or Senate Finance and Appropriations this year. This is the most since 2018 when around 120 bills died in the Money Committees. 

Below you will find a breakdown of legislation that was acted on over the last week. Your Virginia Retail Federation team will continue to keep you informed throughout the 2024 Session on all issues that impact your business.

Legislation Breakdown

Sales Tax Holiday, Sales Tax Increase, Unpaid Leave, Tipped Wage, Workers Compensation/Unemployement Compensation, Product Ban, Cannabis, Fee Disclosure, Tobacco, Class Action, Mandates, Miscellaneous

Sales Tax Holiday

HB 25 – Sales Tax Holiday

House agreed to Senate Amendment; 2030 Sunset

• Establishes an annual retail sales and use tax holiday that takes place on the first full weekend in August beginning in 2025 through 2029. During such weekend, state retail sales and use tax will not apply to certain (i) school supplies, (ii) clothing and footwear, (iii) qualified products designated as Energy Star or WaterSense, (iv) portable generators, or (v) hurricane preparedness equipment.

SB 116– Retail sales and use tax holiday; establishes an annual tax holiday that takes place in August

House substitute rejected by Senate and placed in committee of Conference

• Establishes an annual retail sales and use tax holiday that takes place on the first full weekend in August beginning on August 1, 2025. During such weekend, state retail sales and use tax will not apply to certain (i) school supplies, (ii) clothing and footwear, (iii) qualified products designated as Energy Star or WaterSense, (iv) portable generators, or (v) hurricane preparedness equipment.

Sales Tax Increase

SB 14– Sales and use tax, local; additional tax authorized in all counties & cities to support schools

Passed the House 68-Y 28-N, House Substitute agreed to by Senate 25-Y 14-N

• Additional local sales and use tax to support schools; referendum. 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 if such levy is approved in a voter referendum. Under current law, only Charlotte, Gloucester, Halifax, Henry, Mecklenburg, Northampton, Patrick, and Pittsylvania Counties and the City of Danville are authorized to impose such a tax.

Unpaid Leave

HB 1098 – Unpaid family bereavement leave; civil penalty

Reported from Senate Finance and Appropriations Committee with Substitute 14-Y -0-N (Substitute turns the bill into a workgroup conducted by DOLI and DHRM to study employer-provided unpaid family bereavement leave)

• Requires that an employer that employs 50 or more employees provide eligible employees, defined in the bill, with up to 10 days of unpaid family bereavement leave in any 12-month period to (i) attend the funeral or funeral equivalent of a covered family member; (ii) make arrangements necessitated by the death of a covered family member; (iii) grieve the death of a covered family member; or (iv) be absent from work due to (a) a miscarriage, (b) an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, (c) a failed adoption match or an adoption that is not finalized because it is contested by another party, (d) a failed surrogacy agreement, (e) a diagnosis that negatively impacts pregnancy or fertility, or (f) a stillbirth. The bill requires the employee to provide notice of his intent to take the leave if reasonable and practicable and provides that an employer may require reasonable documentation of the death or event. 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 family bereavement leave. The bill requires the Commissioner of Labor and Industry to enforce its provisions and provides for civil penalties for violations of its requirements.

Tipped Wage

HB 335 – Tipped employees; DOLI to study increasing wages and address wage theft y employers

Passed the Senate with Amendments 20-Y 19-N

• Directs the Department of Labor and Industry to convene a work group to study (i) options for increasing tipped employee minimum cash wages; (ii) circumstances related to wage theft or payment inequities by employers of tipped wage employees; and (iii) amending the penalty provisions related to employee remedies and employer penalties for violations of minimum wage requirements. The work group shall submit a report of its findings no later than December 1, 2024.

Workers’ Compensation/Unemployment Compensation

HB 974 – Workers’ compensation; employee may satisfy burden of proof by circumstantial evidence

• Provides that in any claim for workers’ compensation, where the employee suffers an unexplained fall in the course of employment, such employee may satisfy the burden of proof by circumstantial evidence, testimony of others, other evidence, or any combination thereof.

SB 241 – Workers’ compensation; Notice of right to dispute claim

Passed the House 70-Y 27-N

• Requires that when an employee’s workers’ compensation claim is denied, an employer or insurer shall include in its letter denying benefits a notice that the employee has a right to dispute the claim denial through the Virginia Workers’ Compensation Commission.

SB 536– Unemployment compensation; continuation of benefits; repayment of overpayments

Passed the House 52-Y 46-N –Assigned Conferees and Committee of Conference

• Makes permanent provisions of the Code that expired on July 1, 2022, relating to unemployment compensation. The bill provides that when a claimant has had a determination of initial eligibility for unemployment benefits, as determined by the issuance of compensation or waiting-week credit, payments shall continue, subject to a presumption of continued eligibility, until a determination is made that provides the claimant notice and an opportunity to be heard. The bill requires the Virginia Employment Commission to waive the obligation to repay any overpayment if (i) the overpayment was made without fault on the part of the individual receiving benefits and (ii) requiring repayment would be contrary to equity and good conscience. Conditions for when overpayments are considered “without fault on the part of the individual” are outlined in the bill.

The bill further provides that the Commission shall notify each person with an unpaid overpayment of benefits that he may be entitled to a waiver of repayment and provide 30 days to request such a waiver. This applies to outstanding overpayments established for claim weeks commencing on or after March 15, 2020. The bill allows the Commission to suspend or forgo referring any unpaid overpayment of benefits established since March 15, 2020, to the collections process indefinitely. The bill specifies that all costs that result from implementing provisions of the bill shall be incurred by federal administrative grants and the general fund. Finally, the bill adds overpayments that the Commission has waived the requirement to repay to the list of situations where specific employers are not responsible for benefit charges.

Product Ban

HB 47 – Invasive plant species; requirements for retail sales

Passed the Senate with substitute 31-Y 9-N – Substitute rejected by House and Committee of Conference Appointed

• Requires, for the retail sale of any invasive plant species on a list established by the Department of Conservation and Recreation, such plant be accompanied by conspicuous signage that identifies the plant as invasive and includes the words “Plant with caution: invasive plant species. May cause environmental harm. Ask about alternatives.”

SB 306 – Invasive plant species; retail sales; civil penalty

Reported with substitute House Agriculture, Chesapeake and Natural Resources Committee 16-Y 6-N

• Requires, for the retail sale of any invasive plant species for outdoor use on a list established by the Department of Conservation and Recreation, such plant be accompanied by conspicuous signage that identifies the plant as invasive. The bill requires the Commissioner of Agriculture and Consumer Services to designate the format, size, and content of such signage no later than October 1, 2024, and requires the Commissioner to issue a stop sale order and mark or tag a plant in a conspicuous manner when an invasive plant is for sale at a retail outlet without appropriate signage. In such case, the bill requires the Commissioner to give written notice of a finding made to the owner, tenant, or person in charge of such retail outlet and requires the stop sale order issued to remain in effect until the required signage is posted. Any person who violates the provisions of the bill is subject to a civil penalty not to exceed $500.

Cannabis

HB 698 – Cannabis control; establishes a framework for creation of a retail marijuana market, penalties

Passed the Senate with Substitute 28-Y 11-N, House accepted Senate Substitute 51-Y 47-N

• Establishes a framework for the creation of a retail marijuana market in the Commonwealth, to be administered by the Virginia Cannabis Control Authority. The bill allows the Authority to begin issuing all marijuana licenses on September 1, 2024, but provides that no retail sales may occur prior to May 1, 2025. This bill is identical to sb 448.

SB 448 – Cannabis control; establishes a framework for creation of a retail marijuana market, penalties

Passed the House with Substitute 51-Y 47-N, House Substitute agreed to by Senate 21-Y 18-N

• Establishes a framework for the creation of a retail marijuana market in the Commonwealth, to be administered by the Virginia Cannabis Control Authority. The bill allows the Authority to begin issuing all marijuana licenses on September 1, 2024, but provides that no retail sales may occur prior to May 1, 2025. This bill is identical to HB 698.

Fee Disclosure

SB 388 – Virginia Consumer Protection Act; prohibited practices, mandatory fees disclosure

Passed the House with Substitute 66-Y 30-N (Will end up in Conference)

• Prohibits a supplier in connection with a consumer transaction from advertising, displaying, or offering any pricing information for goods or services without prominently displaying the total price, which shall include all mandatory fees or charges other than taxes imposed. The bill defines “mandatory fees or charges” as any fee or surcharge that must be paid in order to purchase the advertised good or service, is not reasonably avoidable, and that a reasonable consumer would expect to be included. The bill clarifies that such term does not include shipping fees or taxes or fees imposed by a government or government-approved entity.

HB 1519 – Virginia Consumer Protection Act; Fees for Electronic Fund Transfers; prohibited

Reported from Senate General Laws Committee with Substitute 11-Y 4-N

• Provides that charging any transaction or processing fee or similar surcharge for the purchase of a good or service through the use of an electronic fund transfer is a prohibited practice under the Virginia Consumer Protection Act. The bill provides that such prohibited practice includes any aspect of a consumer transaction that is subject to the Virginia Residential Landlord and Tenant Act.

Tobacco

SB 550– Liquid nicotine and nicotine vapor products; certification and directory; penalties

Passed the House 98-Y 0-N – now in a committee of conference

• Requires every manufacturer of liquid nicotine or nicotine vapor products that are sold in the Commonwealth to certify to the Attorney General that (i) the manufacturer has received a marketing authorization or similar order for the liquid nicotine or nicotine vapor product from the U.S. Food and Drug Administration (FDA) or (ii) (a) the liquid nicotine or nicotine vapor product was marketed in the United States as of August 8, 2016, or (b) the manufacturer submitted a premarket tobacco product application for the liquid nicotine or nicotine vapor product to the FDA on or before September 9, 2020, and such application either remains under review by the FDA or a final decision on the application has not otherwise taken effect. The bill requires a manufacturer to submit such a form for each liquid nicotine or nicotine vapor product that such manufacturer sells in the Commonwealth. Under the bill, any manufacturer that falsely represents any of the information required by the certification requirement is guilty of a Class 3 misdemeanor for each false representation.
• The bill requires the Attorney General to establish and maintain a directory that lists all liquid nicotine or nicotine vapor product manufacturers and liquid nicotine and nicotine vapor products for which current and accurate certification forms have been submitted. The bill requires the Attorney General to remove or exclude from such directory any such product that is not in compliance and to notify the manufacturer of such noncompliance. The bill allows a 10-business-day period for a manufacturer to establish compliance. The bill requires that any such products that are removed from the list be removed from retail sale within 21 days or become subject to seizure and requires a manufacturer, wholesaler, or retail dealer to notify each purchaser of a removed product that it has been removed from the directory at the time of delivery of such product. The bill entitles such a purchaser to a refund of the purchase price and creates a cause of action to recover such refund.
• The bill prohibits the sale, distribution, importation, or offer for sale of any liquid nicotine or nicotine vapor product that is not listed in the directory. The bill provides for a civil penalty of $1,000 per day for each product offered for sale in violation of the bill’s provisions until the offending product is removed from the market or until the offending product is properly listed on the directory.
• The bill requires any person that receives, stores, sells, handles, or transports liquid nicotine or nicotine vapor products to preserve all records relating to the purchase, sale, exchange, receipt, or transportation of all liquid nicotine or nicotine vapor products for a period of three years. The bill provides that all such records are subject to audit or inspection at any time by any duly authorized representative of the Attorney General. Any person who violates the recordkeeping provisions of the bill is guilty of a Class 2 misdemeanor.
• Additionally, the bill provides that the Department of Taxation, the Attorney General, any other law-enforcement agency of the Commonwealth, or any federal law-enforcement agency conducting a criminal investigation involving the trafficking of liquid nicotine or nicotine vapor products may access at any time such records. The bill requires the Department of Taxation to impose a penalty of $1,000 for each day that a person fails or refuses to allow or cooperate with an audit, inspection, or investigation of such records.
• The bill authorizes the Attorney General, any attorney for the Commonwealth, or the attorney for any city, county, or town to cause an action to enjoin any violation of the provisions of the bill. The circuit courts are authorized by the bill to (i) issue temporary or permanent injunctions to restrain and prevent violations of the provisions of the bill and (ii) order forfeiture on any property seized for such a violation. The bill authorizes the Attorney General to issue a civil investigative demand.
• Under the bill, any retailer and wholesaler that sells or distributes any liquid nicotine or nicotine vapor product in the Commonwealth is subject to scheduled or unscheduled compliance checks carried out by the Attorney General for enforcement purposes.
• The bill requires the Attorney General to provide an annual report to the General Assembly regarding the status of the directory, manufacturers and products included in the directory, and revenues and expenditures related to and enforcement activities undertaken pursuant to the requirements of the bill.
• Finally, the bill makes a violation of its provisions a prohibited practice under the Consumer Protection Act.

Class Action

SB 259 – Civil actions flied on behalf of multiple persons; types of class actions

Passed the House 50-Y 46-N

• Provides that on a motion of any party, a circuit court may enter an order certifying a class or 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 or occurrence. Currently, the circuit court may enter such order for such separate civil actions if such actions are brought by six or more plaintiffs.
  The bill also provides that in a civil action for retaliation of an employer against an employee, the court or jury may order the reinstatement of the employee to a similar or equivalent position and compensation for lost wages, benefits, and remuneration, as well as reasonable attorney fees and costs, and may award treble damages upon a finding that such act of retaliation by an employer against an employee was willful.

Mandates

HB 770 – Retaliatory action against employee prohibited; remedies available

Passed the Senate with amendment 21-Y 19-N –Amendment agreed to by House 50-Y 46-N

• Provides that a violation of certain provisions regarding retaliatory action against employees may be alleged in a court of competent jurisdiction within one year of the employer’s final prohibited retaliatory action. The bill states that in such cases, treble damages may be awarded if such violation was willful.

Miscellaneous

HB 149 – Employee Protections; medicinal use of cannabis product

Passed the Senate with Substitute 26-Y 13-N; House Adopted Substitute 82-Y 17-N

• Amends the provision that prohibits an employer from discriminating against an employee for such employee’s lawful use of cannabis product pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease, with certain exceptions, by specifying that such use must conform to the laws of the Commonwealth and that such protections extend to the employees of the Commonwealth and other public bodies.

HB 1301 – Virginia Post-Disaster Anti-Price Gouging Act; definitions

Passed the Senate with Substitute 39-Y 0-N

• Provides that for the purposes of the Virginia Post-Disaster Anti-Price Gouging Act, “consumer transaction” includes transactions involving the advertisement, sale, lease, license, or offering for sale, lease, or license of employment services to be provided or procured for business purposes. The bill also amends the definition of “time of disaster” to mean the longer of (i) the period of time when a state of emergency declared by the Governor or the President of the United States as the result of a disaster, emergency, or major disaster is in effect or (ii) 30 days after the occurrence of the disaster, emergency, or major disaster that resulted in the declaration of the state of emergency. Under current law, the definition of “time of disaster” means the shorter of the time periods specified in clauses (i) and (ii).

SB 350 – Virginia Human Rights Act; right to sue

Passed the house 85-Y 12-N

• Permits a complainant who has not received a notice of the right to file a civil action from the Office of Civil Rights of the Department of Law or the Equal Employment Opportunity Commission as requested after 180 days have passed from the date the complaint was filed to commence a timely civil action in an appropriate general district or circuit court having jurisdiction over the person who allegedly unlawfully discriminated against the complainant.

HB 1404 – Small SWaM Business Procurement Enhancement Program; established, definitions, report.

Reported from Senate Rules Committee 9-Y 4-N

• Establishes the Small SWaM Business Procurement Enhancement Program with a statewide goal of 42 percent of certified small SWaM business utilization in all discretionary spending by executive branch agencies and covered institutions in procurement orders, prime contracts, and subcontracts, as well as a target goal of 50 percent subcontracting to small SWaM businesses in instances where the prime contractor is not a small SWaM business for all new capital outlay construction solicitations that are issued. Executive branch agencies and covered institutions are required to increase their small SWaM business utilization rate by three percent per year until reaching the 42 percent target level or, if unable to do so, to implement achievable goals to increase their utilization rate. In addition, the bill provides for a small SWaM business set-aside for state agency and covered institution purchases of goods, services, and construction, requiring that purchases up to $100,000 be set aside for award to certified small SWaM businesses.
  The bill creates the Division of Procurement Enhancement within the Department of Small Business and Supplier Diversity for purposes of collaborating with the Department of General Services, the Virginia Information Technologies Agency, the Department of Transportation, and covered institutions to further the Commonwealth’s efforts to meet the goals established under the Small SWaM Business Procurement Enhancement Program, as well as implementing initiatives to enhance the development of small businesses, microbusinesses, women-owned businesses, service disabled veteran-owned businesses and minority-owned businesses in the Commonwealth.
  Finally, the bill Requires the Department of Small Business and Supplier Diversity to conduct a disparity study every five years, the next due no later than January 1, 2026. The study shall evaluate the need for enhancement and remedial measures to address the disparity between the availability and the utilization of women-owned and minority-owned businesses. The bill has a general delayed effective date of January 1, 2025 and a delayed effective dates of July 1, 2025 for covered institutions.