Effective July 1, 2021: Virginia Human Rights Act Expanded to Include “Disability” as a Protected Class, Virginians with Disabilities Act Amended

Effective July 1, 2021, the Virginia Human Rights Act (VHRA) was expanded to include “disability” as a protected characteristic.  The VHRA, as it pertains to disability discrimination, applies to companies with more than five employees.  Under the VHRA, employers may not “refuse 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.” 

HB-1848 enumerates the criteria that shall be considered when determining whether an accommodation poses an undue hardship.  Notably, there is no rebuttable presumption of “undue burden”, when the cost of the accommodation reaches a certain dollar threshold.  In fact, the Virginians with Disabilities Act (VDA), which prohibits discrimination in employment and promotion practices against an otherwise qualified person with a disability solely because of such disability, was also amended effective July 1, 2021 pursuant to the same bill, HB-1848.  The amendment to the VDA, among other things, removed the previous rebuttable presumption of “undue burden” when an accommodation exceeded $500.00.  The VDA applies to all employers, regardless of size, except for those employers covered by the Federal Rehabilitation Act of 1973.

The VHRA prohibits an employer from requiring “an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disabilities.” 

Other mandates of the expanded VHRA include several employer notice requirements.  Employers must now include information regarding employee’s rights to a reasonable accommodation for disabilities:

o   In a posting (see model here) located in a conspicuous location;

o   In any employee handbook;

o   Directly to any new employee upon commencement of employment; and

o   Directly, and within 10 days of notice, to any employee providing notice to the employer that he or she or they has a disability.

A model employer notice is here.