With the passage of Senate Bill 712 and House Bill 827, Virginia employers are now required to provide employees reasonable accommodation for known limitations related to pregnancy, childbirth or related medical conditions including lactation.
Businesses employing five or more workers must comply with the law, which went into effect July 1, 2020. The law protects pregnant and post-pregnancy workers. The law requires reasonable accommodation unless the employer can demonstrate that the accommodation would impose an undue hardship on the business.
Reasonable accommodation can 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.”
In determining whether an accommodation would impose an undue hardship, employers should consider:
• the hardship on the conduct of the employer’s business, considering the nature of the operation, including composition and structure of its workforce;
• the size of the facility where employment occurs; and
• the nature and cost of the accommodation needed.
The law cautions businesses in relying upon an “undue hardship” in refusing to provide an accommodation. If an employer provides or would be required to provide a similar accommodation to other employees than it’s assumes the accommodation does not impose an undue hardship on the employer.
Employers cannot retaliate against any worker who requests or uses a reasonable accommodation by taking adverse action against that person. For example, the business cannot require an employee take leave if another reasonable accommodation can be provided.
Like with the Americans with Disabilities Act, the Virginia law requires that employers engage in the interactive process to evaluate the needs of the employee and what accommodation can be provided.
The law requires that companies post “in a conspicuous location and include in any employee handbook information concerning an employee’s rights to reasonable accommodation.”
This same information must be provided directly to new employees when the worker begins and to any employee who tells her employer within 10 days that she is pregnant. Businesses need to make sure to comply with the notice requirements provided in the law immediately.
Aggrieved employees can bring a civil lawsuit in state court within two years from the date of the unlawful action or within 90 days after the final disposition issued by the state or federal human rights commission. Prevailing litigants are entitled to compensatory damages, back pay, other equitable relief, reasonable attorney fees and costs and an injunction, temporary restraining order or similar action.
Companies should designate a person responsible to receive such requests and make sure that person is trained in the legal obligations for the interactive process and providing reasonable accommodation. Employers must carefully and fully document their efforts to engage in the interactive process and provide accommodation.