June 19, 2020
Virginia’s regular 2020 legislative session enacted many new laws protecting employee rights. As previously reported, these new laws include adding LGBTQ protections to the state’s anti-discrimination law, combating independent contractor misclassification, enacting a new “wage theft” law, banning the box for simple marijuana possession, and other sweeping employment reforms that include new noncompete restrictions, broad whistleblower protections and an increased minimum wage.
Add to the list a new law that expands the rights of pregnant workers in Virginia. Similar to federal law, the Virginia Human Rights Act has long prohibited terminating employees on the basis of pregnancy and “childbirth or related medical conditions.” The new law, effective July 1, 2020, creates a private cause of action prohibiting broader discrimination related to these conditions and requires accommodations akin to the process under the Americans with Disabilities Act (ADA).
Reasonable Accommodation. Under the law, employers must provide reasonable accommodations to individuals with limitations related to pregnancy, childbirth or related medical conditions, specifically including lactation. A non-exhaustive list of such accommodations includes: (1) more frequent or longer bathroom breaks, (2) breaks to express breast milk, (3) access to a private location other than a bathroom for the expression of breast milk, (4) acquisition or modification of equipment, (5) access to or modification of employee seating, (6) a temporary transfer to a less strenuous or hazardous position, (7) assistance with manual labor, (8) job restructuring, (9) a modified work schedule, (10) light-duty assignments and (11) leave to recover from childbirth. An employer cannot require an employee to take leave if another reasonable accommodation is available.
Undue Hardship. Like the familiar ADA, the law provides that employers need not make accommodations that would impose an undue hardship on the employer’s business. Three factors determine whether an accommodation would cause an undue hardship: (1) the nature of the employer’s operation, including composition and structure of the employer’s workforce; (2) the size of the facility; and (3) the nature and cost of the accommodations requested.
Interactive Process. The new law again adopts from the ADA by including a requirement that employers engage in an interactive process to determine if an accommodation is reasonable and, if it is not, to discuss alternative accommodations.
Retaliation Prohibited. The new law prohibits employers from taking adverse action against an employee who requests or uses a reasonable accommodation. “Adverse action” includes refusing to reinstate an employee to her previous position or an equivalent position with equal pay, seniority and other benefits when the need for the accommodation ends.
Employer Size. The law applies to employers of five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
New Poster and Handbook Provisions. Employers must notify employees about the non-discrimination and reasonable accommodation aspects of the law in the form of a poster and in any employee handbook. This information must also be provided to all new employees when they begin employment, and to any employee within 10 days of the employee providing notice to the employer of the pregnancy. While the rest of the law takes effect July 1, 2020, the poster and handbook requirements are mandatory beginning Oct. 29, 2020.
Private Right of Action. Employees may sue in state court for discrimination or failure to accommodate. The statute of limitations is two years from the violation or, if the employee filed a complaint with an appropriate state agency or commission within that time frame, 90 days from the final disposition of such complaint. Damages may include compensatory damages, back pay, other equitable relief, reasonable attorneys’ fees, costs and injunctive relief.
For further information or questions about the statute, or for assistance in drafting the required handbook policy, please contact the authors of this alert, your McGuireWoods contact or a member of the firm’s labor and employment group.