2022 New Laws Report, Virginia Retail Federation

Tax relief, the grocery tax, and a gas tax holiday were some of the major issues being negotiated between the House and Senate. In the end, the Legislature did not approve the Governor’s last attempt at implementing a Gas Tax Holiday. However, a compromise was reached on the Grocery Tax. The budget eliminates the State portion (1.5%) of the grocery tax and tax on personal hygiene products, and this is to be implemented by January 1, 2023. This is found in Item 4-14 of HB 30.

Another budget item that is of importance for Virginia Retail Federation members is the complete elimination of Accelerated Sales Tax (AST). That means that if AST was still required of your business, your last Accelerated Tax payment was paid as of June 30, 2021. This is Item 3-5.06 of HB 29.
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LEGISLATION
The following legislation will become law as of July 1, 2022 unless otherwise indicated.

HB 78 – Davis – Automatic renewal or continuous service offer to consumer; cancellation and online opt-out.

• 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. The bill provides that failure to make available such option to cancel is a prohibited practice under the VirginiaConsumer Protection Act.

HB 381 – Davis – Consumer Data Protection Act; data deletion request.

• Consumer Data Protection Act; data deletion request. Provides that a controller that has obtained personal data about a consumer from a third party shall be deemed in compliance with a consumer’s request to delete such data if the controller either (i) retains a record of the deletion request and the minimum data necessary for the purpose of ensuring that the consumer’s personal data remains deleted and does not use such retained data for any other purpose or (ii) opts the consumer out of the processing of that data for any purpose except those purposes exempted pursuant to the Consumer Data Protection Act. This bill is identical to SB 393.

HB 426 – Bulova – ABC Third-Party Delivery License

• 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. This bill is identical to SB 254.

HB 714 and SB 534 – Hayes and Marsden  – Consumer Data Protection Act; definitions, enforcement, abolishes Consumer Privacy Fund.

• 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 (the 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 and certain § 501(c)(4) organizations are classified as nonprofit organizations and thus exempt from the Act. In addition, the bill abolishes the Consumer Privacy Fund and provides that 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.

HB 837 – Wilt – Food and drink law; permitting requirements.

• Food and drink law; permitting requirements. Requires any food manufacturer, food storage warehouse, and retail food establishment to obtain a permit from the Commissioner of Agriculture and Consumer Services prior to operating. Any such entity issued a permit is 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.
• The provisions of the bill do not become effective until January 1, 2023, for those localities that currently have a local food inspection or permitting ordinance in place.

HB 1156 and SB 15 – Byron and Favola – Private family leave insurance

• This legislation 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 insurance may be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate group insurance 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.

HB 1173 and SB 631– Ware and Barker – Fair Labor Standards Act; employer liability, overtime required for certain employees, report

• 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.
• The bill requires an employer to compensate employees of a derivative carrier, defined in the bill, at a rate not less than one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours in any one workweek.
• The bill requires the Secretary of Labor to convene a work group that includes certain industry representatives and legislators to review overtime issues and the Virginia Overtime Wage Act and requires the workgroup to submit a report on its findings and recommendations to the Governor and the Chairmen of the House Committees on Appropriations and Commerce and Energy and the Senate Committees on Finance and Appropriations and Commerce and Labor by November 1, 2022. This bill is identical to SB 631.

HB 1178 – Avoli – Seizure first aid information; Department of Labor and Industry to disseminate information.

• Department of Labor and Industry; seizure first aid information. Directs the Department of Labor and Industry to disseminate information regarding seizure first aid, defined in the bill, to all employers and employees in the Commonwealth and requires all employers of 25 or more employees to physically post this information in a prominent location in the workplace.
• The bill incorporates the “Good Samaritan” provision of the Code of Virginia that shields a person from liability when rendering emergency care in good faith under certain circumstances.

HB 1251 – Fowler – Alcoholic beverage control; operation of government stores, sale of nonalcoholic spirit alternative.

• Alcoholic beverage control; operation of government stores; sale of nonalcoholic spirit alternatives. Allows government stores of the Virginia Alcoholic Beverage Control Authority to sell nonalcoholic spirit alternatives.

SB 4 – Suetterlein – Emergency Services and Disaster Law; limitation on duration of executive orders.

• Emergency Services and Disaster Law; limitation on duration of executive orders. Limits the duration of any executive order issued by the Governor pursuant to his powers under the Emergency Services and Disaster Law to no more than 45 days from the date of issuance.
• The bill provides that if the General Assembly does not take any action on the rule, regulation, or order within the 45 days during which the rule, regulation, or order is effective, the Governor shall thereafter be prohibited from issuing the same or a similar rule, regulation, or order relating to the same emergency. Under current law, once issued, such executive orders are effective until June 30 following the next regular session of the General Assembly. This bill incorporates SB 166 and SB 731 and is identical to HB 158.

SB 25 – Ruff – Cigarette tax, local; identifying unsold inventory, localities that increase taxes.

• 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. This bill is identical to HB 1076.

SB 146 – Suetterlein – Restaurants; on-site certified food protection managers.

• Prepared foods; certified food protection managers. Provides that regulations adopted by the State Board of Health shall not require an establishment that sells only prepared food to have a certified food protection manager on-site during all hours of operation.

EXECUTIVE ORDER

We also wanted to remind members that Governor Youngkin issued Executive Order 6, which directed DOLI to assess the COVID-19 Permanent Standard. The VRF and the Business Community worked to oppose the necessity of this Permanent Standard throughout its existence, because of the ever-changing nature of COVID-19. As previously reported, the Permanent Standard was officially repealed and DOLI has issued guidance to employers which can be found here.