Most executives and human resource managers are familiar with federal disability discrimination and accommodation laws, including the Americans with Disabilities Act ("ADA") and the Pregnancy Discrimination Act. Unfortunately, state discrimination laws are occasionally overlooked. Virginia’s disability discrimination and accommodation statutes can be found in the Virginia Human Rights Act, Title 2.2, Chapter 39, of the Virginia Code. In 2020, the Virginia legislature passed a new pregnancy discrimination law and an enhanced disability protection law, both of which recently came into effect. Virginia’s pregnancy discrimination law, (Virginia Code Section 2.2-3909) requires employers with five or more employees to provide reasonable accommodations for pregnancy and childbirth related limitations, unless the employer can demonstrate that the accommodation would impose an undue burden. The disability protection law (Virginia Code Section 2.2-3905.1) imposes notice requirements related to disabilities in the workplace. Both laws go into effect July 1, 2021.
Significantly, Virginia’s new law covers employers with five or more employees. The equivalent federal Americans with Disabilities Act and Pregnancy Discrimination Act only cover employers with fifteen or more employees. In addition, Virginia imposes notice requirements not found in federal law. The key requirements and distinctions are highlighted below.
Virginia’s Pregnancy Discrimination Law
Small employers (five or more employees) are now covered in much the same fashion as others have been. Virginia’s new law bars adverse action related to an employee’s pregnancy, childbirth, or related medical condition. Adverse action incudes, among other things, denial of employment, failure to reinstate employment post-pregnancy, and based on an accommodation request. These provisions largely mirror federal law.
In addition, the new Virginia law prohibits requiring an employee to take leave if another reasonable accommodation, such as working from home, can be provided. If an employee with a pregnancy or childbirth related limitation requests an accommodation, the employer is required to engage in a good faith interaction with the employee to determine if the accommodation is a good fit. For example, if an employee requests space for breastfeeding, the employer must discuss options with the employee. Note that, although the law does not prohibit restrooms as an accommodation for breastfeeding, it strongly implies that only providing a bathroom to a recent mother may be unacceptable. The good faith requirement means that the employer cannot simply “paper” a meeting. The employer must consider the requested accommodation. Any alternative or refusal should be reasoned and thoughtful.
Undue hardship, based on the nature of the employer’s operation, the size of the facility where employment occurs, and the nature and the cost of the accommodation, is recognized as grounds to decline a request. Returning to the breastfeeding example, a big box retailer may be better equipped than a small business to provide a dedicated breastfeeding space, as its facility is likely better adapted to the request. Even so, the law requires businesses of any size to examine the possible accommodations available and determine which of them are most reasonable under the circumstances. Importantly, the law states that if the business is able to provide similar accommodations to other employees, the accommodation will not be considered a hardship.
Finally, the new pregnancy discrimination law requires affected employers to post information concerning an employee’s rights to a reasonable accommodation for pregnancy-related conditions. This required posting is similar to that required for labor rights, and the Virginia Department of Labor, Licensing and Regulation has issued a poster that can be used as a basis for the employer’s notice. Additionally, employers that have an employee handbook must also publish this information in the employee handbook. Regardless of whether the employer maintains a handbook, information about an employee’s rights to accommodations for pregnancy-related limitations must also be given to employees both upon the commencement of employment and within ten days of an employee providing notice to an employer that she is pregnant.
The New Disability Policy Law
Expanding the rights of disabled employees, Virginia’s new law contains two important provisions. First, as with the Pregnancy Law, it is unlawful to refuse a reasonable disability accommodation unless the accommodation would constitute an undue hardship. The language related to accommodations and undue hardship is very similar to that contained in the pregnancy discrimination law. Second, the employer must post a notice to employees about their disability accommodation rights, update employee handbooks to include a statement of those rights, and provide notice to new employees about their disability rights. Notice of an employee’s disability rights must also be given to any employee reporting a disability within ten days of such a report. Unfortunately, the Virginia Department of Labor, Licensing and Regulation has not yet issued a model poster for employers to use to publish disability rights.
Virginia’s new employment laws expand coverage for employees affected by pregnancy, childbirth or disability to smaller employers, with five or more employees. The substantive requirements of the new law, in particular the “good faith consideration” requirement, mirror what many consider to be “best practices” in employment.