Effective July 1, 2021, Virginia has a new law requiring employers to make reasonable accommodations for employees with disabilities. This law applies to employers who “employ more than five employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Its requirements are similar to the federal Americans with Disabilities Act, which applies to employers with 15 or more employees. A "person with a disability" means any person who has a physical or mental impairment that substantially limits one or more of their major life activities or who has a record of such impairment.
The law requires an employer to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist such person in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer. In determining whether an accommodation would constitute an undue hardship upon the employer, the following will be considered:
- 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;
- Size of the facility where employment occurs;
- The nature and cost of the accommodations needed, taking into account certain alternative sources of funding or technical assistance;
- The possibility that the same accommodations may be used by other prospective employees; and
- Safety and health considerations of the person with a disability, other employees, and the public.
It is unlawful for an employer to do any of the following:
- Take adverse action against an employee who requests or uses a reasonable accommodation.
- Deny employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation for a disability.
- Require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability.
- Fail to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable and, if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.
Employers must post in a conspicuous location and include in any employee handbook information concerning an employee's rights to reasonable accommodation for disabilities, and provide such information to (i) new employees upon commencement of their employment and (ii) any employee within 10 days of such employee's providing notice to the employer that such employee has a disability.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
