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 sometimes overlooked. Virginia’s disability discrimination and housing laws can be found in the Virginia Human Rights Act, Title 2.2, Chapter 39 of the Virginia Code. In 2020, Virginia lawmakers passed a new Pregnancy Discrimination Act and an expanded Disability Protection Act, both of which recently went into effect. Virginia’s Pregnancy Discrimination Act (Virginia Code Section 2.2-3909) requires employers with five or more employees to provide reasonable accommodation for pregnancy and childbirth restrictions unless the employer can demonstrate that the provision would constitute an undue burden. The Disability Protection Act (Virginia Code Section 2.2-3905.1) mandates notification requirements related to disabilities in the workplace. Both laws come into force on July 1, 2021.
Significantly, the new Virginia law applies to employers with five or more employees. The relevant federal laws on the Americans with Disabilities Act and Pregnancy Discrimination Act only apply to employers with fifteen or more employees. In addition, Virginia has notification requirements not found in federal law. The main requirements and differences are highlighted below.
Virginia’s Pregnancy Discrimination Act
Small employers (five or more employees) are now insured in a similar way to others. New Virginia law prohibits adverse actions related to an employee’s pregnancy, childbirth, or any related medical condition. The disadvantageous measures include refusal of employment, non-resumption of employment after pregnancy and due to an application for placement. These provisions largely reflect federal law.
In addition, the new Virginia law prohibits an employee from taking vacation when other reasonable arrangements, such as a vacation home, are in place. B. work from home, can be taken. When an employee with a pregnancy or childbirth restriction applies for accommodation, the employer has a duty to interact with the employee in good faith to determine whether the accommodation is suitable. For example, if an employee wants breastfeeding room, the employer must discuss the options with the employee. Note that while the law does not prohibit toilets for breastfeeding, it does strongly imply that providing only one toilet to a new mom may be unacceptable. The requirement of good faith means that the employer cannot simply “write down” a meeting. The employer must take into account the desired accommodation. Any alternative or rejection should be justified and considered.
Undue hardship based on the nature of the employer’s activity, the size of the facility in which the employment is carried out, and the nature and cost of the accommodation are recognized as grounds for rejecting an application. Returning to the breastfeeding example, a wholesaler may be better equipped than a small business to provide its own breastfeeding room as its facility is likely to be better tailored to the request. Even so, law requires businesses of all sizes to examine the accommodations available and determine which of them is most appropriate in the circumstances. Importantly, the law states that if the company is able to provide similar accommodation to other employees, the accommodation will not be considered hardship.
Finally, the new Pregnancy Discrimination Act requires employers concerned to publish information about workers’ rights to reasonable accommodation for pregnancy-related conditions. This required publication is similar to that required for employee rights, and the Virginia Department of Labor, Licensing and Regulation has issued a poster that can be used as a basis for notifying the employer. In addition, employers who have an employee manual must also publish this information in the employee manual. Regardless of whether the employer maintains a manual, the employee must be informed of the employee’s right to precautionary measures in the event of pregnancy-related restrictions, both when the employment relationship is started and within ten days of the notification of the pregnancy to the employer.
The new Disability Policy Act
Virginia’s new law extends the rights of disabled workers and contains two important provisions. First, as with the Pregnancy Act, it is unlawful to refuse adequate disability placement unless placement would constitute undue hardship. The language regarding placement and undue hardship is very similar to that contained in the Pregnancy Discrimination Act. Second, the employer must inform workers of their disability accommodation rights, update workers’ manuals to include a statement of these rights, and inform new workers of their disability rights. Any employee who reports a disability must also be made aware of the disability of an employee within ten days of such notification. Unfortunately, the Virginia Department of Labor, Licensing and Regulation has not yet issued a sample poster for employers to use to post disability rights.
Virginia’s new labor legislation extends coverage for workers affected by pregnancy, childbirth or disability to smaller employers with five or more employees. The material requirements of the new law, particularly the requirement of good faith, reflect what many consider to be “best practices” in employment.