From the Well | January 26, 2022

Day 15

At the center of the West Virginia state Capitol is an area known as The Well.

It is the informal gathering place for lobbyists, reporters, constituents and lawmakers.

Centrally located between the chambers of the House of Delegates and Senate,

The Well is often where information is shared, alliances are formed, and deals are made.

The Senate Workforce Committee on Wednesday wrestled with SB272, which would prohibit any state entity or political subdivision from requiring any medical information as a condition of employment or continued employment.

Committee members questioned Counsel and others attempting to gauge not only the liability but also the ramifications if the bill would pass.

Senators provided scenarios that would affect the health care industry, as well as the State Police and National Guard. Counsel provided an example of law enforcement officers who need to successfully perform physical ability tests that could be considered part of cadets’ medical records. According to language contained in the bill, any medical condition that is identifiable as health information would apply under the bill.

Senators Ryan Weld of Brooke County and Mike Caputo of Marion County asked about school bus drivers and Department of Highways personnel. Both stated that medical conditions can prohibit a person’s ability to obtain a CDL or operate heavy equipment. The legislation would not require disclosure of any medical condition that could affect a person’s condition of employment.

Lt. Col Christopher Applegate of the West Virginia National Guard told the committee, if passed, the legislation would cause significant concerns from a military and civilian standpoint because the WVNG has dual status with both state and federal employees stationed at their facilities.

In the Guard’s constant preparedness to deploy, it must collect information to maintain standards for CDL and flight credentials. The legislation would conflict directly with a member who was on state active duty. He said the Guard now is directly deploying members to hospitals for support and also giving vaccines to the public. He added its goal is to make sure members aren’t a risk to the public.

“If we sent a member to a state medical facility, we would want to make sure they are tested and protected,” Applegate said.

He also said members must carry their medical records from base to base to certify health conditions that could affect their readiness to deploy.

Dr. Alvin Moss, a physician trained in HIPAA privacy and confidentiality, encouraged the committee to find the balance of protecting the rights of individuals by using the least restrictive method.

Chairman Rolan Roberts of Raleigh County said he felt there was more work to be done, including possible amendments. The committee didn’t take action on the bill.

The Senate Judiciary Committee took up four uniform acts on Wednesday and recommended that the full Senate pass them all.

Committee Substitute for SB439 enacts the Revised Uniform Athletes Agents Act.

The Uniform Athletes Agents Law, currently in West Virginia Code, was enacted in 2001. The purposes of the RUAAA include providing enhanced protection for student athletes and educational institutions, creating a uniform body of agent registration information for use by state agencies, and simplifying the regulatory environment faced by legitimate athlete agents.

The Committee Substitute makes non-substantive drafting changes to the bill.

Chris Alder with the West Virginia Secretary of State’s Office said 30 to 35 states have adopted the original Act. He explained that the recent case related to athlete names, image, and likeness is related to the issues the Act is intended to address but does not specifically involves those issues.

The committee also heard from Libby Snider, a staff attorney with the Uniform Law Commission. She highlighted changes to the Act passed by West Virginia in 2001, including the definition of an agent. It includes a cause action for students and adds additional requirements to the signing of the contract.

She indicated 18 states have enacted the revision, and two states, including West Virginia, are currently considering bills. She also indicated that high school athletes are outside of the scope of the Act. She noted that the Uniform Law Commission has recently adopted a uniform act addressing the use of college

athletes’ name, image, and likeness.

Senator Robert Karnes of Randolph County asked whether friends of the athlete must register as an agent. The answer is yes. Ms. Snider explained the sanctions contained in the Act. Family members and coaches are exempt.

The committee agreed to the language of the Committee Substitute. The committee also agreed to report it to the full Senate and recommended passage.

SB440 establishes the Uniform Commercial Real Estate Receivership Act.

The Uniform Commercial Real Estate Receivership Act (UCRERA) provides a consistent set of rules for receiverships involving commercial property.

The law has been developed by the National Conference of Commissioners on Uniform State Laws to establish uniformity among the states regarding the appointment and powers of receivers, persons appointed by a court to take possession of the property of another involved in matters before the court, and to receive, collect, care for, and dispose of the property or the fruits of the property before of the court in a fair and equitable manner.

In short, the UCRERA provides a set of uniform rules that should provide more predictability to lenders and borrowers alike. It gives state courts guidance on the receivership process while preserving the court’s flexibility to craft a remedy appropriate under the circumstances.

The committee agreed to report the bill to the full Senate and recommend passage.

Committee Substitute for SB452 permits civil remedies for unauthorized disclosure of intimate images.

The bill creates a civil action for the unauthorized disclosure of an intimate image. The bill permits civil remedies for the unauthorized disclosure of intimate images.

Most states, including West Virginia, already have a criminal statute covering the subject. The Act is intended to make a victim whole by allowing recovery of civil damages.

Five states have adopted the Act, and 12 other states have similar statutes related to a civil cause of action.

A Committee Substitute was presented to the committee, which contained only technical drafting changes.

The committee agreed to the language of the Committee Substitute and then agreed to report the Committee Substitute to the full Senate with a recommendation for passage

Committee Substitute for SB453 establishes uniform requirements for restrictive employment agreements.

The bill is to provide rules for determining when noncompete agreements will be unenforceable. The bill limits the use of overly broad restrictive agreements. The act provides for a detailed notice to ensure that workers understand what the restrictive agreement prohibits. The Act provides for civil penalties for violations.

Adopted by the Uniform Law Commission in July 2021, no states have adopted the Act, but it has been introduced for passage in Oklahoma, Vermont, and West Virginia. Most if not all states have similar law, but they are not uniform in their scope and remedies. One in five workers has been subject to noncompete agreement during his or her careers, including low wage hourly workers.

A Committee Substitute was presented to the committee, and it contained only technical drafting changes.

Senator Karnes moved to amend the bill by increasing the time after the work relationship ends that a former employee may be subject to a noncompete agreement relating to a trade secret or on ongoing client or customer relationship from one year to two years. Senator Karnes argued that a two-year period would protect former employers and make them more likely to do business in the West Virginia.

Senator Mike Romano of Harrison County spoke in opposition to the amendment, suggesting it is not a lack of jobs in the state but a lack of persons to perform the jobs. He further said the amendment will further inhibit workers and their ability to stay in West Virginia.

Senator Ryan Weld of Brooke County agreed with Senator Romano and his opposition to the amendment.

The amendment was rejected.

The committee agreed to the language of the Committee Substitute and then agreed to report the Committee Substitute to the full Senate with a recommendation for approval.

The House Political Subdivisions Committee took up two elections bills Wednesday that affect local government, but it got through only one of them.

HB2232 provides a process by which a city may hold an election to recall an ordinance. It is similar to HB2091 related to county ordinances that passed Political Subdivisions last week. The process starts upon presentation of a petition bearing handwritten signatures of not less than 15% of the votes in the last general election.

The petition will trigger a special municipal election to recall any ordinance or city code provision previously enacted by the municipality. (Interestingly, the next bill on the committee agenda proposes to do away with special elections and have most elections on the date of the primary or general election.)

Like the companion bill for counties, legislators had several questions about the effect of the legislation on bond ordinances.

Susan Economou, Deputy Director of the West Virginia Municipal League, told the committee a recall would have a negative impact on bonds. She pointed out that not all bonds are insured, and it would be difficult to get insurance in the future once an entity defaults. She also noted that municipal bond ratings have an effect on the state’s bond rating.

Ms. Economo raised the concern that 15% of voters who voted in last general election is a small threshold for a small town, and 15 to 20 people could start a recall election.

Yvonne Lee, Chair of Women in NAACP, told the committee that some municipalities, such as Morgantown, Huntington, Martinsburg, and Fairmont, have adopted the Crown Act.

“This bill can rescind non-discrimination ordinances, such as the Crown Act,” she said.

Proposed amendments failed, including to delay any repeal effort for at least 10 years and to increase the percentage required to start a repeal. The bill passed on a roll-call vote 15-6.

The committee took up HB4353, which would eliminate special elections and require almost all elections, including municipalities, to be on the regular primary and general ballots. The committee ran out of time and laid over the bill until the next meeting.

West Virginia legislators are exploring how to harness geothermal energy for production and profit.

The House Energy and Manufacturing Committee examined and passed a HB4098 relating to geothermal energy development.

The bill, which has a bipartisan set of sponsors, goes to the House Judiciary Committee.

Discussion of the bill indicated limited use of the process in West Virginia at least initially. The most likely area of activity would be the Allegheny ridgeline in the eastern part of the stahere to read more.te.

Click here to read more.

West Virginia has edged past its highest number of Covid hospitalizations since the pandemic began.

The state on Wednesday listed 1,043 hospitalizations of people with Covid, more than the 1,012 hospitalizations the state recorded at the height of the delta wave on Sept. 24.

“We are very, very worried that our hospital numbers have not come close to peaking yet,” said Dr. Clay Marsh, West Virginia’s top pandemic advisor.

State leaders have been warning for weeks that hospitals are becoming overwhelmed by covid cases, other illnesses such as flu, people who have had delayed treatment for chronic illnesses — all complicated by staffing shortages at medical facilities.

Click here to read more from WVMetroNews.

West Virginia’s Health and Human Resources Secretary told legislators Tuesday that the agency continues to cope with the effects of the Covid pandemic, including people’s struggles with mental health.

“It’s difficult to imagine we’re entering the third year of this pandemic,” Secretary Bill Crouch told the House Finance Committee during a budget hearing. “We certainly didn’t think three years ago we’d be in the position we are right now.”

He said DHHR employees have worked extremely long hours the past two years, and no end is in sight.

Click here to read more from WVMetroNews.

West Virginia received failing grades in addressing tobacco use, which remains the leading cause of preventable disease in the state.

The American Lung Association released its “State of Tobacco Control” report on Wednesday, and the organization noted poor efforts in funding tobacco-prevention programs and deterring people from using tobacco products.

Click here for more information from WVMetroNews.

Delegate Mick Bates of Raleigh County introduced legislation Wednesday to create the Tobacco Cessation Initiative Program Special Revenue Account within the State Treasury.

HB4404 designates the Director of the Bureau for Public Health to administer the program Interest from the Rainy Day Fund created from the Master Tobacco Settlement will go into the Cessation Account.

The bill was referred to the Health and Human Resource and Finance committees.

Also in the House, multiple sponsors introduced HB4414, which would prohibit colleges and universities from requiring students to have booster shots for attendance. The bill was referred to the Health and Human Resources and Education committees.

Delegate Sean Hornbuckle of Cabell County on Wednesday introduced HB4412, which collects a tax from manufacturers and distributors of opiate drugs to be used for funding addiction prevention.

The bill was referred to the Health and Human Resource and Finance committees.

Governor Jim Justice is scheduled to deliver the State-of-the-State Address at 7 p.m. Thursday, Jan. 27, in the House of Delegate chambers in Charleston.

Suffering from Covid, Governor Justice postponed delivering his remarks on Jan. 12, the opening day of the 2022 legislative session.

Click here for information about media coverage of the address.

In addition, the House of Delegates announced Wednesday that it will honor former Speaker Robert S. Kiss, who died in November. He was 63. Elected to the House from Raleigh County in 1988, he was speaker from 1997 to 2007.

Click here

for the full session calendar

of the 85th West Virginia Legislature.

Hartman Harman Cosco, Public Policy Strategists, LLC, (H2C) is a strategically assembled bipartisan lobbying firm comprised of legal, communications and policy professionals. H2C possesses the insight and intuition that only comes from decades of hands on experience leading community and statewide initiatives.