Virginia’s newest employment laws, most of which went into effect July 1, 2021, follow on the heels of 2020 legislation that significantly increased protections for Virginia workers in the areas of discrimination, whistleblowing, non-compete agreements, and independent contractor misclassification, as discussed in this prior post. Key provisions of the 2021 laws are summarized below.
Further expansion of the Virginia Human Rights Act
The Virginia Human Rights Act (VHRA), among other things, prohibits employment discrimination on the basis of race, sex, age, and other protected characteristics. The 2020 Virginia Values Act greatly expanded the VHRA by increasing the number of covered employers and protected classes and broadening the remedies available under the act. Two laws that became effective July 1, 2021 further expand the VHRA’s scope.
First, HB 1848 amends the VHRA to add disability as a protected category and requires employers to provide reasonable accommodations to otherwise qualified individuals with disabilities, unless doing so would cause the employer undue hardship. These obligations resemble the requirements of the federal Americans with Disabilities Act (ADA), but the new Virginia law goes beyond the ADA in important respects:
- Like the ADA, Virginia’s prohibition on disability discrimination generally applies to employers with 15 or more employees. However, under Virginia’s law, the prohibition on discriminatory discharge based on disability, and the duty to provide reasonable accommodation for disabilities, applies to employers with as few as six employees.
- Courts generally hold that an employer’s failure to engage in an “interactive process” with an employee to determine whether reasonable accommodation is required and, if so, what accommodation is appropriate is not an independent violation of the ADA. However, the failure “to engage in a timely, good faith interactive process” is now independently unlawful under the VHRA.
- In addition, Virginia employers now must notify employees of their right to reasonable accommodation for disabilities in all of the following ways:
- By posting information about employees’ right to reasonable accommodation for disabilities in a conspicuous location;
- If the employer has an employee handbook, by including such information in the handbook; and
- By directly notifying individual employees of their right to reasonable accommodation both (a) at the time of hire and (b) within 10 days of the employee providing notice that the employee has a disability.
The Virginia Office of Civil Rights has issued this poster, which employers can use to meet their notice obligations under the new law. (As a reminder, under the 2020 VHRA amendments, Virginia employers have similar duties to notify employees of their right to reasonable accommodations for pregnancy, childbirth, and related medical conditions, which can be met using this poster).
Second, HB 2161 amends prior VHRA language protecting veterans to prohibit employment discrimination based on “military status.” Military status is defined to mean an individual’s status not only as a veteran, but also as a current member of the uniformed forces or a spouse, child, or other qualifying dependent of a military service member, all as defined by federal laws.
Marijuana in the workplace
Virginia has recently enacted multiple laws related to marijuana of relevance to employers.
- Possession of marijuana. A new Virginia law (SB 1406) effective July 1, 2021, permits adults 21 years of age or older legally to possess up to an ounce of marijuana. The new law is silent as to how the legalization of marijuana possession impacts the employer-employee relationship; however, because marijuana remains illegal under federal law, the new law does not impact an employer’s ability to screen for marijuana use or prohibit employees from possessing or being impaired by marijuana during work.
- Employment protections for cannabis oil. Another new Virginia law (HB 1862) makes it illegal for employers to discharge, discipline, or otherwise discriminate against employees who use cannabis oil in compliance with Virginia’s medical marijuana laws (i.e., pursuant to a valid written certificate from a health care practitioner), although employers may still prohibit employees from being impaired by or possessing cannabis oil during work hours.
- Botanical cannabis for medicinal purposes. A third new Virginia law (HB 2218) allows botanical cannabis to be used for medicinal purposes. Although botanical cannabis is not covered under the law prohibiting adverse employment actions for medicinal marijuana use, to the extent that drug screening tests do not differentiate between cannabis oil and botanical cannabis, employers as a practical matter may need to extend similar employment protections to employees who use botanical cannabis medicinally.
As a reminder, Virginia law was amended in 2020 to prohibit employers from asking job applicants, in an application, interview, or otherwise, from disclosing information concerning any arrest, criminal charge, or conviction relating to simple marijuana possession (i.e., up to one ounce of marijuana).
Virginia Overtime Wage Act
Virginia’s new Overtime Wage Act (HB 2063), also effective July 1, 2021, increases Virginia employers’ overtime obligations and potential exposure to liability for overtime violations beyond the provisions of the federal Fair Labor Standards Act (FLSA) in several ways. Specifically, the Virginia law:
- Establishes a more employee-friendly method for calculating overtime for salaried non-exempt employees;
- Creates a default three-year statute of limitations for overtime claims (the federal limitations period for non-willful claims is two years); and
- Permits employees to recover for overtime violations under Virginia’s wage payment law, which provides for recovery of double damages plus pre-judgement interest of eight percent per year, with no potential for a good faith defense as is available under the FLSA, and also provides for triple damages for “knowing” violations.
Please see this recent post for a more detailed discussion of the Overtime Wage Act.
Minimum wage increase
As amended by the General Assembly in April 2020, the Virginia Minimum Wage Act creates a schedule of incremental increases to the state minimum wage. The first of these increases, which went into effect May 1, 2021, raised the Virginia minimum wage to US$9.50 per hour. Under the Minimum Wage Act, the minimum wage will increase each year until it reaches US$15.00 in 2026 and will be adjusted annually for inflation thereafter. The next adjustment will be to US$11.00 per hour on January 1, 2022.
Employers should promptly take the following actions to ensure compliance with the new laws:
- Review anti-discrimination policies to ensure they include protections for disability and military status.
- Review reasonable accommodation policies to ensure they are consistent with updates to the VHRA.
- Ensure new hires and employees who disclose disabilities are receiving timely notice of their rights to reasonable accommodations.
- Ensure that notice of rights to reasonable accommodation are posted in a conspicuous location in the workplace.
- Train managers and supervisors to promptly refer any reasonable accommodation requests to human resources or the other individual or department responsible for handling reasonable accommodation requests.
- Review drug testing policies and practices to ensure that employees are not discriminated against for using cannabis oil in compliance with Virginia’s medical marijuana laws.
- If the employer has salaried non-exempt employees, update the method of calculating the such employees’ overtime pay.
- Comply with the new minimum wage of US$9.50 per hour, and prepare for the increase to US$11.00 per hour on January 1, 2022.
For more information regarding how legal developments may impact your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you regularly work.
Authored by George Ingham and Amy Folsom Kett. Special thanks to Erin Pannek, a 2021 Hogan Lovells summer associate, for her research and assistance.