Small business leaders need to be aware that, as of July 1, 2021, Virginia has expanded the scope of a critical employment-related law. The Virginia Human Rights Act now includes disability discrimination.
The Virginia Human Rights Act has recently been expanded to protect against discrimination based on sexual orientation, gender identity, veteran status, medical cannabis oil use, and traits historically associated with race (such as hairstyles).
Now, the latest version of the law specifies that disability is a protected category under the Virginia Human Rights Act. The new requirements apply to Virginia employers that have had five or more employees for at least 20 weeks in the current or preceding years.
This new provision may catch smaller employers off guard because it applies to a broader range of employers than the federal Americans with Disabilities Act, which only applies to businesses with 15 or more employees.
Accommodation Requirements Under the Virginia Human Rights Act
The Virginia Human Rights Act requires that, unless the employer can show that the accommodation would impose an undue hardship, an accommodation must be provided. It also prohibits Virginia employers from taking any adverse action against an employee who requests or uses a reasonable accommodation and from denying employment opportunities or promotions because a reasonable accommodation would be required. Employers must engage in a timely, good-faith process with the employee to determine how to achieve a reasonable accommodation for the employee.
If an employer wants to deny an accommodation on the grounds of undue hardship, the employer must show it has evaluated the hardship on the conduct of the employer’s business, considering the nature of its operations and the composition of its workforce; the size of its facilities; the nature and costs associated with the needed accommodations, taking into account the possibility that the same accommodation may be used in the future by other employees; and the health and safety of the person with the disability.
This new requirement is modeled on the 2020 pregnancy accommodation law, which requires Virginia employers to give specific notices to employees of their right to reasonable accommodation for limitations relating to pregnancy, childbirth, or related medical conditions. These two laws are the only laws in Virginia requiring specific handbook policies and disclosures.
Notice Requirements Under the Virginia Human Rights Act
Under this expanded Virginia Human Rights Act, employers will need to make reasonable accommodations to assist otherwise qualified persons with a disability to perform a particular job. Virginia employers must ensure that their handbooks include information about an employee’s right to reasonable accommodation for disabilities and must post that information in a conspicuous location.
The Virginia Human Rights Act includes specific requirements for when the employer must provide this information. New employees as well as any current employees who disclose that they have a disability must receive this information within 10 days of that disclosure.
Employers must ensure that their policies, handbooks, and posters are updated. They must also ensure they have systems in place so that the employees receive this information in a timely manner and the employer can track compliance.
What Virginia Employers Should Do Next
Starting July 1, 2021, Virginia employers must post a new version of the Virginia Human Rights Act poster. The poster clarifies that Virginia law requires employers to avoid discrimination on a series of protected classes, including disability. Employers must also post their policy on reasonable accommodations for employees with disabilities.
As a leading resource for employment notice posters, Poster Compliance Center has the labor law posters that Virginia businesses need to remain compliant with the expanding workplace requirement laws in the Commonwealth.