By: Jonathan R. Mook
Since the 1980s, Virginia has prohibited employment discrimination against disabled workers under the Virginians with Disabilities Act (VDA). Accordingly, it’s understandable many employers in the state may have overlooked critical amendments to the Virginia Human Rights Act (VHRA) enacted by the legislature this year and signed into law by Governor Ralph Northam. The amendments, which took effect on July 1, give additional legal protections to persons with disabilities and provide stronger remedies to those who have been discriminated against.
New accommodation requirements
As was the case under prior Virginia law, employers with five or more workers must provide reasonable accommodations to disabled employees unless doing so would create an undue hardship. The new legislation, however, imposes specific requirements on employers in reasonably accommodating employees, which weren’t previously included in the VDA.
You now have an affirmative obligation to engage in a “timely, good-faith interactive process” with disabled employees who request a reasonable accommodation. And you may not require them to take unpaid leave as an accommodation if another reasonable solution is available.
Undue hardship analysis
In determining whether an accommodation creates an undue hardship, the new amendments to the VHRA specifically state you should consider:
- Nature of the operation and size of the facility;
- Proposed accommodation’s cost;
- Possibility the same accommodations may be used by other employees; and
- Safety and health issues.
Additionally, there is now no dollar limitation on how much you may need to spend to provide a required reasonable accommodation. The legislature eliminated the former rebuttable presumption that any accommodation exceeding $500 imposed an undue burden on employers with fewer than 50 employees.
The new legislation further requires you to post information about the rights of employees with disabilities in a conspicuous location at the worksite and in any employee handbook.
The information also must be provided to new employees when they start their jobs and to any employee within 10 days after she informs you she has a disability.
Finally, should you fail to follow the requirements of the new legislation, employees with disabilities now have greatly enhanced remedies. If they believe they have been discriminated against in violation of the statute, they will first need to file with the Virginia Office of Civil Rights. But upon the issuance of a right-to-sue notice, they may file a lawsuit in state court and request a jury trial.
Moreover, if you are found to have violated the statute, you may be liable for compensatory damages (without any limitation on the amount), back pay, attorneys’ fees, and other relief.
In many ways, the new Virginia protections for employees with disabilities are greater than afforded by the federal Americans with Disabilities Act (ADA). Hence, in the future, employers charged with violating a disabled employee’s rights will likely have the case litigated in state court before a jury, with the employer facing the possibility of unlimited damage awards.
It’s critically important for Virginia employers to become familiar with your obligations under the new amendments to the VHRA protecting individuals with disabilities. Make sure to provide your employees with notice of the new law’s provisions. Also remember to engage with an employee with a disability who requests a reasonable accommodation. That way, if any questions arise later, you can document the steps you took to comply with your statutory obligations.
Given the enhanced remedies available to employees under the new VHRA amendments, you are well advised to consult with experienced employment counsel to ensure you are fully complying with the new Virginia protections for individuals with disabilities. You don’t want to discover you haven’t been adhering to the new law’s requirements only after a discrimination charge or a lawsuit has been filed.
Jonathan R. Mook is an attorney with DiMuroGinsberg, P.C. in Alexandria, Virginia. You can reach him at firstname.lastname@example.org.