COVID-19 has changed the landscape surrounding employee illness and disability. However, Virginia’s 2021 expansion of its Human Rights Act (VHRA) is not directly linked to COVID (although may apply depending on the nature of the employee’s condition). As a result, on July 1, 2021, employers in Virginia will have additional obligations to employees with actual or perceived disabilities.
Many employers are familiar with the Americans with Disabilities Act (ADA), a federal law from 1990 (applicable to employers with 15 or more employees). While the VHRA expansion affirms many ADA components (and provides a state cause of action), it imposes several additional requirements for employers. In implementing the new law, employers should keep the following in mind:
- The reasonable accommodation process must be detailed in your employee handbook/policies. The ADA and VHRA require that employees’ review requests for assistance with their job duties given their disabilities – also known as reasonable accommodations. The VHRA differs from the ADA by requiring that applicable employers (i.e., those with 5 or more employees) detail the reasonable accommodation request process in a handbook or policy manual. Employers without a handbook will need to develop one immediately (or risk being out of compliance with the law).
- The VHRA details what constitutes “undue hardship” for providing the requested reasonable accommodation. What constitutes an “undue hardship” under the ADA is articulated in case law. The VHRA differs by directly stating the grounds for an employer’s denial of a reasonable accommodation based on undue hardship in the actual statute. These factors include: (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.
- Creates a deadline to respond to reasonable accommodation requests. Under the ADA, employers must “engage in the interactive process” by communicating with the employee disclosing an actual or perceived disability – however does not provide an actual deadline or timeframe for processing the request. The VHRA update “ups the ante” by requiring that employers respond no later than ten (10) days after being made aware of the disability or reasonable accommodation request. Employers should immediately consider how to timely process requests so as to avoid additional liability associated with a delayed response
Under the VHRA, employees can request additional damages for disability discrimination. I recommend that employers review how to effectively implement the VHRA expansion to prevent exposure moving forward.
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