VHRA Expands Incapacity Discrimination and Provides Home Employee Protections

Effective July 1, 2021, Virginia will further expand the scope of the Virginia Human Rights Act (VHRA) to prohibit discrimination based on disability. The state also issued protection measures and benefits for domestic workers.

Discrimination on the basis of a disability

With this extension of the VHRA, employers must adequately account for the known physical and mental impairments of an otherwise qualified person with a disability, if this is necessary to support that person in the performance of a specific assignment. Accommodation must be provided unless an employer can demonstrate that the accommodation would cause undue hardship.

Virginia employers are also prohibited from:

• Taking adverse measures against an employee who desires or uses reasonable accommodation;

• Denial of employment or promotion opportunities for an otherwise qualified applicant or employee, as the employer is obliged to make reasonable accommodation for the applicant or employee;

• Asking an employee to take vacation when other reasonable accommodation can be made for the known limitations associated with the disability; and

• If you fail to work in good faith with a member of staff who requested accommodation in a timely manner to determine whether the requested accommodation is adequate and if it is determined that such accommodation is not adequate, discuss possible alternative accommodation.

If a Virginia employer wishes to refuse housing due to undue hardship, the employer must consider the following:

• Difficulties in running the employer’s business, taking into account the nature of the employer’s operation, including the composition and structure of the employer’s workforce;

• Size of institution in which employment takes place;

• Type and costs of the accommodation required, taking into account alternative sources of finance or technical assistance;

• The possibility that the same accommodations can be used by another potential employee; and

• Safety and health aspects of the person with a disability.

Employers need to update employee handbooks to include information about a worker’s right to reasonable accommodation for disabilities. Employers must also comply with the poster and notification requirement. The posting should take place in a conspicuous place on the work site. In addition, employers must provide information about this law directly to new employees and all employees within 10 days of notifying the employer that they have a disability.

By including Disability Discrimination in the VHRA, Virginia employees can take advantage of the vastly expanded private right of action following the passage of the Virginia Values ​​Act. In addition, a court may grant dominant employees damages and punitive damages, as well as (unlimited) reasonable attorney fees and expenses, including non-monetary relief. Employers with only five employees can be sued in Virginia state court for alleged violations of the VHRA.

Oddly enough, this new law doesn’t override the Virginians with Disabilities (VDA) law. In general, the VDA is similar to the Disabled Americans Act, except that it covers Virginia employers with fewer than 15 employees.

New protection and benefits for domestic workers

The Virginia General Assembly passed the 2032 House Bill to extend labor protection laws to domestic workers and allow them to file complaints about safety in the workplace. The Virginia Labor and Industry Commission will investigate such complaints.

Domestic services are defined as “services related to the permanent or temporary care of a person in a private household or the maintenance of a private house or its premises, including services provided by individuals such as companions, cooks, waiters and butlers, maids, valets and Chauffeurs. “

This new legislation updates the definition of employer as “any person who (i) carries out business or hires a person to provide household services and (ii) has employees”.

The new law also includes updated rules on workplace inspections, which allow the Commissioner to “enter any place where a person is responsible for the provision of home services” without delay and at appropriate times.

Next

Virginia employers must be vigilant to ensure that their policies and practices are up to date with the myriad of new work-related laws that have been enacted in the Commonwealth. Since Governor Ralph Northam took office, Virginia has deviated from its previous hiatus on labor regulations (see, for example, our articles Virginia Enacts Overtime Wage Law and Virginia Enacts Wage Theft, Non-Competition Acts Amid New Employee Protection). Employers should ensure that their workplace manuals and associated practices take into account the many new and expanded rights and protections now available to this workforce that may no longer exist when they were last physically present prior to the COVID-19 pandemic were at work.

Jackson Lewis PC © 2021National Law Review, Volume XI, Number 102