By: Zachary Deubler
During its 2020 legislative session, the Virginia General Assembly passed a slew of measures providing your employees new and expended workplace protections, while also enhancing the mechanisms by which employees may seek to bring claims against their employers for violating the newly enacted laws. As we discussed at our June 2, 2020 Webinar, these new measures included new protections for LGQBT workers, prohibiting non-competes for “low-wage” workers, and significant increases in Virginia’s minimum wage.
Easily lost in these new sweeping measures are the recently strengthened prohibitions on discrimination in the workplace based on pregnancy and pregnancy-related conditions. The Virginia Human Rights Act, similar to Federal law, has long prohibited terminating employees on the basis of pregnancy and “childbirth or related medical conditions.” However, the new legislation known as the Virginia Values Act (VVA) goes much further and creates a private cause of action for discrimination related to these conditions and requires accommodations akin to the process under the federal Americans with Disabilities Act (ADA).
Who Is Covered by the VVA and Employee’s Right to Sue?
The VVA applies to all employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
The VVA grants employees an independent right to sue their employers in state court for discrimination or failure to reasonably accommodate their pregnancy or pregnancy related conditions. For example, an employer that refuses to allow an employee who has been on maternity leave to return to her previous/equivalent position with equal seniority, pay, and other benefits may be found to have engaged in an “adverse action” against the employee.
The statute of limitations for filing a lawsuit alleging a violation of the VVA is two years from the date of the unlawful act. Alternatively, if the employee files a charge of pregnancy discrimination with the Virginia Human Rights Commission or a local human rights agency within two years, the employee can file a lawsuit within 90 days from the final disposition of the charge. Relief may include: up to one full year of back pay, compensatory damages, attorney’s fees, and injunctive relief.
What Are The New Reasonable Accommodations?
The VVA defines “reasonable accommodations” as including:
- frequent or longer bathroom breaks,
- breaks to express breast milk and 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, and
- assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and unpaid leave to recover from childbirth.
As to unpaid leave, the new law states that an employer cannot “require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of such employee.”
New Proactive Notification Requirement
All covered employers must inform employees about the reasonable accommodations and non-discrimination aspects of the new law by displaying a poster in a workplace area visible to all employees as well as in any employee handbook. The same information must be provided to any employee, within 10-days, who gives notice of her pregnancy and any new employees during their on-boarding process.
An area particularly ripe for future litigation is an employer’s claim that an accommodation to a pregnant employee need not be provided because it would be an undue hardship. This exception is similar to that found in the ADA. Primarily, there are three general factors that can determine whether an accommodation would create an “undue hardship” for the employer: (1) the size of the employer; (2) the nature and cost of the accommodations requested; and (3) nature of the employer’s operation.
DiMuroGinsberg Is Here To Help
What should you do to make sure that you are in compliance with the VVA and all the other important law mandates that the General Assembly enacted this year:
First, if you were not able to join us on June 2, we encourage you to watch our free webinar for employers on the recent changes made by the General Assembly available here.
Second, inform your employees of their rights under the VVA, as discussed above;
Third, review your existing employee policies and procedures to ensure that they are in accord with your new obligations under the VVA; and
Fourth, when in doubt, consult with experienced employment counsel to ensure that your operations and actions do not give rise to a discrimination charge or lawsuit.
The attorneys at DiMuroGinsberg are here to assist you in navigating the complexities of the new legal landscape. We represent employers in Virginia federal and state courts, as well as before federal and state administrative agencies. We also help employers prevent problems from arising by providing employment law compliance counseling, advice and training.
Our employment law practice group is led by Jonathan R. Mook, who has over 30 years of experience in employment law and is a nationally recognized authority on the Americans with Disabilities Act. He is the author of two treatises on the ADA published by Matthew Bender Company. Mr. Mook is a frequent lecturer on employment law issues and is a co-editor of the Mid-Atlantic Employment Law Letter published by BLR.
If you are in need of advice or representation, please do not hesitate to contact our firm for more information about our employment law services.