Pregnant woman working

Virginia employers should get ready to provide pregnancy-related accommodations to employees beginning July 1, 2020.  Recently enacted, Virginia Senate Bill 712 amends the Virginia Human Rights Act to require covered employers to make reasonable accommodation to the known limitations of an employee related to pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the employer.

Virginia Employers with 5 or More Employees Must Engage in a Good Faith Interactive Process

Virginia’s new pregnancy accommodation law applies to 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. Under the law, employers must engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the accommodation is reasonable and, if not, to discuss alternative accommodations. Reasonable accommodations may 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 seating
  • Temporary transfer to a less strenuous or hazardous position
  • Assistance with manual labor
  • Job restructuring
  • A modified work schedule
  • Light duty assignments
  • Leave to recover from childbirth

No Forced Leave If Another Reasonable Accommodation Can Be Provided

While the new legislation lists “leave to recover from childbirth” as a potential accommodation, it does not define or suggest what duration of post-childbirth leave might be considered reasonable or indicate whether leave may be a reasonable accommodation during the prenatal stage of an employee’s pregnancy. It does, however, make clear that employers cannot require an employee to take leave if another reasonable accommodation can be provided that does not impose an undue hardship on the employer.

Undue Hardship Analysis Takes into Account Employer’s Circumstances

Virginia’s pregnancy accommodation law will not require employers to provide a particular accommodation if it would impose an “undue hardship” on the employer. The law sets forth the following factors to be considered when performing this analysis: (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) the size of the facility where employment occurs; and (3) the nature and cost of the accommodations needed.

The fact that the employer provides a similar accommodation to other classes of employees creates a presumption that the accommodation does not impose an undue hardship. This presumption is rebuttable; however, employers should exercise caution and carefully document the rationale for denying a requested pregnancy-related accommodation that has been provided to other employees whose request was not in connection with pregnancy, childbirth, or a related medical condition.

Discrimination and Retaliation Prohibited

An employee who requests and/or receives a reasonable accommodation is protected from retaliation and must be reinstated to the employee’s “previous position or an equivalent position with equivalent pay, seniority, and other benefits when her need for a reasonable accommodation ceases.” This retaliation prohibition provides job protection for employees on leave as an accommodation and also requires employers to undo, for example, temporary transfers and job restructuring if failing to do so would constitute an adverse action against the employee. In addition, all employers with five or more employees, no matter how large, are now prohibited from discriminating against any individual on the basis of pregnancy, childbirth, or related medical conditions under the Virginia Human Rights Act as Senate Bill 712 eliminated the 15-employee upper limit on employer coverage for its pregnancy/childbirth anti-discrimination provisions.

Notice of Rights Must Be Posted and Provided to Employees

No later than October 29, 2020, employers are required to provide employees with information concerning “(i) the prohibition against unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions and (ii) an employee’s rights to reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions” through four avenues. The information must be:

    1. Posted in a conspicuous location;
    2. Included in employee handbooks;
    3. Provided directly to new hires at the start of their employment; and
    4. Provided directly to pregnant employees within 10 days of when the pregnant employee notifies the employer of the pregnancy

A model notice is not yet available, but employers should watch for the Virginia Department of Labor & Industry to publish a notice or poster of employee rights compliant with the legislation’s requirements.

Legislature Crafted Heightened Penalties for Non-Compliance

The stakes for violating the law’s new provisions are higher than most employers are accustomed to under the Virginia Human Rights Act. Employers that fail to comply with the amended provisions prohibiting discrimination based on pregnancy, childbirth, or related medical conditions (as well as the reasonable accommodation mandates) are potentially liable for compensatory damages, back pay, attorneys’ fees, costs, and injunctive and equitable relief such as reinstatement of a terminated employee. These remedies are greatly expanded as compared to those available under the Virginia Human Rights Act prior to July 1, 2020, which currently caps back pay and attorneys’ fees, prohibits the assessment of other compensatory and punitive damages, and excludes reinstatement of an aggrieved employee as a potential remedy.

What Employers Should Do

Employers covered by this amendment to the Virginia Human Rights Act should evaluate company policies and procedures governing reasonable accommodations and pregnancy-related absences to ensure compliance prior to the July 1, 2020 effective date. The changes should also be communicated to human resources personnel and others who engage in the interactive process or evaluate leave requests from employees. Finally, employers should prepare to post and distribute information concerning employee rights under the law in accordance with its notice requirements.

What ReedGroup is Doing

ReedGroup is analyzing its products and services in preparation for the legislative changes set to take effect July 1, 2020 and will ensure it is appropriately analyzing leave requests and tracking job protection during affected leaves of absence. Clients with questions about the impact on their individual leave programs are encouraged to reach out to their Account Executives for more information.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.