Two new laws will come into effect in Virginia on July 1, 2021, protecting employees from discrimination on the basis of disability and protecting employees from the medicinal use of cannabis oil.
Key to take away:
Virginia, once known as a jurisdiction with very few state labor laws, is rapidly changing that reputation with the passage of numerous new laws since the Democrats took control of state law in 2019. Commonwealth employers, who in the past could largely focus solely on federal labor laws, need to be aware of these new state laws and ensure that they are followed.
Extending protection against discrimination on the basis of disability and accommodation requirements
HB 1848 amends the Virginia Human Rights Act (“VHRA”) to provide additional employment protection for people with disabilities. In addition to aligning existing protections against discrimination on the basis of disability with that of the Americans with Disabilities Act (“ADA”) by prohibiting discrimination against individuals who are qualified to perform “the essential functions of a job with or without reasonable accommodation”, the law creates new appropriate requirements for accommodation. Similar to what the ADA provides, the new law requires employers to make reasonable arrangements necessary to assist otherwise qualified persons with disabilities in doing their jobs. Employers are required to engage in a good faith interactive process when an employee requests reasonable accommodation “to determine whether the requested accommodation is reasonable and, if such accommodation is deemed inappropriate, to make alternative arrangements Discuss what can be provided ”.
Like the ADA, the law includes an “undue burden” exception to the obligation to take reasonable care. In order to make use of the exception, the employer must prove that the placement would represent undue hardship for the employer, which is assessed according to the following criteria:
Hardship in the conduct of the employer’s business, taking into account the nature of the employer’s activity, including the composition and structure of the employer’s workforce.
Size of the institution in which an employment is carried out.
Type and costs of the accommodation required, taking into account alternative sources of finance or technical assistance.
The possibility of the same accommodations being used by other potential employees.
Safety and health aspects of the person with a disability, other employees and the public.
Employers must not take adverse action against an employee for demanding or using reasonable accommodation, or refusing employment to applicants because the employer must provide them with reasonable accommodation. Employers are also not allowed to request vacation if other reasonable arrangements can be made.
Virginia employers should also note that the new law requires employers to include information about workers’ rights to reasonable accommodation for disabilities in their employee handbook and post it in a “prominent” location in the workplace. In addition, this information must be provided to the employees immediately at the start of their employment and within 10 days after the employee has informed the employer that the employee has a disability.
New protections for employees who use cannabis oil for medicinal purposes
HB 1862 prohibits employers from dismissing, disciplining, or discriminating against an employee for his “lawful use of cannabis oil according to a valid written certificate issued by a doctor for the treatment or removal of symptoms of the employee’s diagnosed condition or illness”.
“Cannabis oil” within the meaning of the law is “any formulation of processed cannabis plant extract that may contain oil from industrial hemp extract that has been acquired by a pharmaceutical processor under state law; or a dilution of the resin of the cannabis plant containing at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose. “
The law makes it clear that it does not (i) limit an employer’s ability to take adverse action in the event of a work impairment or prohibit possession during working hours, (ii) oblige an employer to do anything that would result in the employer being removed incapacitated will violate federal law or result in the loss of a federal contract or federal funding.
As mentioned earlier, these laws will come into effect on July 1, 2021.
© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 175