Virginia Employers with 5 or More Employees – take note:
Effective July 1, 2021, the Virginia Human Rights Act will include “disability” as a protected characteristic for the purposes of non-discrimination requirements. Beyond that, Virginia employers must provide reasonable accommodations to workers who have a disability unless doing so would create an undue hardship. Employers should engage in the interactive process to determine whether the requesting-employee’s request creates undue hardship on the employer’s business. Virginia law requires that employers consider: (1) the nature of the operation and size of the facility; (2) the cost of the accommodation; (3) the possibility that the same accommodations may be used by other employees; and (4) safety and health considerations. It is important for employers to remember that they are not required to create a new position for an employee who cannot be otherwise accommodated.
While the law currently applies to employers with 15 employees or more, the amendment requires compliance by employers who employ five or more workers. In addition, the fact that Virginia law defines disability differently than the ADA, is also a relevant consideration. To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.
In contrast, under Virginia law a person with a disability is “any person who has a physical or mental impairment that substantially limits one or more of his major life activities or who has a record of such impairment.”
Because of this, employers – large or small – should seek counsel if they need clarity concerning the application of the new law to their employees.