New Virginia Employment Laws Prohibiting Discrimination

The Virginia General Assembly has passed new employee protections for three classes of workers: military members, individuals with disabilities, and those using cannabis oil for medical reasons.

House Bill 2161 extends multiple employment discrimination laws to prevent workplace discrimination based on a worker’s “military status.” The term “military status” replaces the term “veteran” throughout the Code of Virginia, extending employee protections beyond veterans to also workers who are current and veteran members of the military or their spouse, child, or individual for whom the military member provided more than 50% of the individual’s support in the preceding 180 days. The expanded definition of this protected class will now apply beginning on July 1, 2021, to the Virginia Human Rights Act, the Virginia Personnel Act, and state and local government employees, including public school teachers.

House Bill 1848 extends the Virginia Human Rights Act to expressly include the protected class of disability. It also adds a provision to the VHRA that requires employers to engage in a timely, good faith interactive process to identify a reasonable accommodation “if necessary to assist such person in performing a particular job,” unless the employer can prove that the accommodation creates an undue hardship. In doing so, the General Assembly has replicated the reasonable accommodation requirement found in the Virginians with Disabilities Act, Code § 51.5-41, but with a couple differences. As with the VDA, employers subject to the VHRA (i.e., Virginia employers with at least 6 employees) can prove undue hardship based on these factors:

• Hardship “on the conduct of the employer’s business,” taking into account the employer’s “operation, including composition and structure of the employer’s workforce”;
• Size of the physical space where the employment occurs;
• The nature and cost of the accommodation, keeping in mind the available assistance occupational accommodations from the Department for Aging and Rehabilitative Services;
• Whether the accommodation is similarly “may be used by other prospective employees; and
• The safety and health not only of the person with a disability, but also “other employees, and the public.”

However, unlike the VDA as currently written, the VHRA does not recognize a presumption of undue hardship where an accommodation would exceed $500. In fact, this presumption is being removed from the VDA itself, so employers can no longer rely on this objective threshold to establish undue hardship beginning July 1, 2021. In addition, under the amended VHRA, employers must exhaust all reasonable accommodations that permit the worker with a disability to perform their job before offering leave. This is different from the VDA which expressly gives employers the right to choose among “equally effective accommodations.” This departure is notable because it is also quite different from the federal Americans with Disabilities Act, which applies to employers with 15 or more employees, but does not prohibit employers from offering leave as an accommodation even when other accommodations are available.

The new Virginia amendments also prohibit retaliatory conduct for workers seeking or using a reasonable accommodation. They also prohibit the denial of employment of promotions for workers based on their need for a reasonable accommodation.

Much like the affirmative duty of employers to post lactation rights from last year’s Virginia Values Act, these new amendments also require employers to post in a conspicuous location and include in their handbooks information regarding the rights of workers with disabilities to a reasonable accommodation. This notice must be provided to new employees and any who provide notice to their employer that they have a disability within 10 days of such notice.

House Bill 1862 is a new law prohibiting employers from disciplining, discharging, or discriminating against employees who lawfully use cannabis oil. Employees using cannabis oil must provide a valid written certification by a practitioner substantiating their treatment needs for it, which certification is regulated by specific Virginia law, see Code § 54.1-3408.3.  The law clarifies, however, that employers remain free to take adverse employment action if the employee’s work is impaired by the use of cannabis oil. Employers may also prohibit possession during work hours.

However, Virginia employers with employee’s lawfully using cannabis oil are also not required to engage in any conduct that would cause the employer to violate federal law, which still prohibits the growth, sale, or use of marijuana for any purpose. Employers also cannot be forced to engage in conduct that would cause them to lose federal contracts or federal funding. Similarly, employers in the defense industrial base sector are not required to hire or retain applicants or employees who test positive for THC (tetrahydrocannabinol) in excess of 50 ng/ml for a urine test, or 10 pg/mg for a hair test. Employees purchasing cannabis oil, therefore, must continue to be vigilant about the true amount of THC in their products because the Food and Drug Administration currently does not regulate cannabidiol products on the market.

House Bill 2312/Senate Bill 1406. Critically, this new law for cannabis oil becomes effective on July 1, 2021, when Virginia will—for the first time—legalize recreational marijuana use. Virginia will become the 16^th state in the country to permit individuals 21-years of age and older in Virginia to possess up to one (1) ounce of marijuana.  Each household will be permitted to cultivate up to four (4) marijuana plants. The General Assembly has established a brand new regulatory scheme, including several agencies, to regulate the cultivation, manufacturing, wholesale, and retail sale of marijuana throughout the Commonwealth. This includes new Virginia Cannabis Control Authority, whose Board will be empowered to use funds collected from sale of marijuana to fund community programs that serve, among other things, at-risk pre-kindergarten students and those seeking substance abuse use disorder prevention and treatment. The new Cannabis Equity Reinvestment Board has also been established to address the historical impact of the overuse of criminal justice responses to the possession of marijuana.

For Virginia employers, however, this means that marijuana should be viewed in similar fashion to alcohol. The new Virginia laws do not prohibit employers from prohibiting the presence of marijuana on their premises, or from firing employees who are impaired at work. As these new Virginia laws take effect and regulations roll out from the new agencies empowered to license the production and sale of marijuana, employers should review their drug and substance abuse policies to focus on their continued right to offer a drug-free workplace.