Effective July 1, 2020, Virginia employers with five or more employees must provide reasonable accommodation to employees and applicants due to such person’s pregnancy, childbirth, or related medical condition (including lactation), unless the employer can demonstrate that such accommodation would impose undue hardship on the employer. Similar to the Americans with Disabilities Act (ADA), the law requires that an employer engage in an interactive process with the employee/applicant to determine if a reasonable accommodation is needed and the nature of the reasonable accommodation that will be provided. Employers must provide the person requesting an accommodation under this policy similar accommodations that it has provided to other employees who have requested accommodations due other illnesses or disabilities.
“Reasonable Accommodation” is defined under the law to include “more frequent or longer bathroom breaks, breaks to express breast milk, access to a private location other than a bathroom for the expression of breast milk, acquisition or modification of equipment or access to or modification of employee seating, a temporary transfer to a less strenuous or hazardous position, assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and leave to recover from childbirth.” Most employers are already required under the Federal Fair Labor Standards Act to provide employees with lactation accommodations during the first year after the birth of a child to include reasonable breaks and a private location (not a restroom) to express breast milk.
The bar for proving an undue hardship is high. Similar to determining undue hardship under the ADA, the size of the employer’s business, the impact of the accommodation on employer’s operations (taking into account composition and structure of employer’s workforce), size of facility, and the nature and cost of the accommodations needed are to be considered. If an employer has granted an accommodation to an employee with a condition unrelated to pregnancy that is similar to the accommodation the employee affected by pregnancy has requested, it is presumed that the accommodation is reasonable. Employers would be wise to consider granting any of the accommodations included within the definition of “Reasonable Accommodation.”
In addition to imposing a requirement to provide an accommodation, the new law requires that the employer not take adverse action against an employee to whom an accommodation has been provided. "Adverse action" under the law includes “failure to reinstate any such employee to her previous position or an equivalent position with equivalent pay, seniority, and other benefits when her need for a reasonable accommodation ceases.” Va. Code Ann. §2.2-3909(B)(2). Essentially, the law includes a right to reinstatement to the employee’s prior position. Finally, the employer may not “deny employment or promotion opportunities to an otherwise qualified applicant or employee because such employer will be required to make reasonable accommodations” related to pregnancy, childbirth, or lactation. Va. Code Ann. §2.2-3909(B)(3).
The law imposes strenuous posting and notice obligations on employers. Employers are required to post rights under this law “in a conspicuous location” and must include information concerning an employee’s rights under this law. The law further provides that information concerning these rights must 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 she is pregnant.
The law provides an aggrieved employee, one who has not been provided with an accommodation or one who has had adverse action taken against her, the right to file a private cause of action with a jury against the employer without first having to pursue an administrative action with the Division of Human Rights, or local human rights agency. The statute of limitations for filing a lawsuit is two years, two years from the date of the unlawful denial of rights or adverse action if the claim is pursued without filing an administrative action. If the employee or applicant chooses to proceed with an agency proceeding, then the claim must be brought within 90 days from the date that the agency has rendered a final disposition on the complaint. A successful plaintiff will be able to recover compensatory damages, back pay, and other equitable relief, as well as reasonable attorney’s fees and costs. The plaintiff is also entitled to seek permanent or temporary injunction, temporary restraining order, or other orders from the Court, including an order enjoining the employer from engaging in such practice, or “order such affirmative action as may be appropriate.” Presumably, under this language, a court could order reinstatement.
A link to the statute is below
https://law.lis.virginia.gov/vacode/title2.2/chapter39/section2.2-3909/
Key Takeaways:
- Post a notice of rights under the law where you post other employment law posters.
- Update employee handbook to include a policy/description of rights under the law.
- Provide a notice of the law to each new employee in on-boarding materials.
- Provide the policy including in your handbook notice to any employee who informs you that she is pregnant.
- Engage in interactive discussions concerning any accommodation request.
- Do not discriminate or retaliate against any applicant or employee that has exercised rights under the law.
- Reinstate any employee that has taken time off from work or who has received modified work schedule or duties to position, pay, benefits held prior to leave request.
If you need assistance drafting the required policy or posting, please contact Rees Broome, PC employment attorneys.