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2021 Special Session Imposes New Obligations on Employers Under the Virginia Human Rights Act

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The 2021 Virginia General Assembly Special Session wrapped up earlier this month with a number of changes that will impact employers. Among the bills that have been signed into law is HB 1848, which amends the Virginia Human Rights Act (“VHRA”).

The new law implements two main changes to the VHRA: (1) including discrimination on the basis of disability as an unlawful discriminatory practice; and (2) requiring reasonable accommodations for persons with disabilities and notice of such rights. The law applies to businesses with more than five employees.

Under the newly enacted Va. Code § 2.2-3905.1, it is an unlawful discriminatory practice for an employer to “[r]efuse to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist such person in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.”

In determining whether an accommodation would constitute an “undue hardship” upon an employer, the following factors will be considered:

  1. Hardship on the conduct of the employer’s business, considering the nature of the employer’s operation, including composition and structure of the employer’s workforce;
  2. Size of the facility where employment occurs;
  3. The nature and cost of the accommodations needed, taking into account alternative sources of funding or technical assistance;
  4. The possibility that the same accommodations may be used by other prospective employees; and
  5. Safety and health considerations of the person with a disability, other employees, and the public.

Other unlawful discriminatory practices relating to reasonable accommodation include (1) taking adverse action against an employee who requests or uses a reasonable accommodation; (2) denying employment or promotion opportunities because the employer will be required to make reasonable accommodation; (3) requiring an employee to take leave if another reasonable accommodation can be provided; and (4) failing to engage in a timely, good-faith interactive process with an employee who has requested a reasonable accommodation and, if such accommodation is not reasonable, discuss alternative accommodations that may be provided.

In addition to the above requirements, employers are also obligated under Va. Code § 2.2-3905.1 to “post in a conspicuous location and include in any employee handbook information concerning an employee’s rights to reasonable accommodation for disabilities. Such information shall also be directly provided to (i) new employees upon commencement of their employment and (ii) any employee within 10 days of such employee’s providing notice to the employer that such employee has a disability.”

Employers should start evaluating their policies and plans for compliance before these new changes go into effect on July 1, 2021. Vandeventer Black LLP is available to assist businesses in adjusting to these new requirements.

See what our legal team can do for your business.

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