The Right to Nurse, The Virginia Values Act, and Pregnancy Accommodation: What Employers Need to Know to Avoid Costly Liability

Easily lost in Virginia's new and expansive civil rights legislation known as the Virginia Values Act (VVA) are provisions prohibiting unlawful discrimination in the workplace based on pregnancy and pregnancy-related conditions, including nursing. Pregnancy discrimination is not a new concept in Virginia; indeed, it is already prohibited by the Virginia Human Rights Act, which the VVA amends.  Federal guidelines also prohibit such discrimination. The Virginia Values Act, however, goes much further by spelling out specific ways that employers must accommodate pregnant employees. Compliance with the VVA will limit employers' exposure to pregnancy-related discrimination claims, as the VVA expands an employees' ability to sue their employer.

The VVA, applicable to all Virginia employers with more than five employees, grants employees who believe their employers have failed to reasonably accommodate their pregnancy or pregnancy-related conditions an independent right to sue their employers. A prevailing employee can recover significant damages, including up to one full year of back pay, associated interest, compensatory damages, attorney's fees, and injunctive relief. Available damages under the VVA may even exceed damages available for similar claims under federal law.

Fortunately for employers, this new law, which takes effect July 1, 2020, provides specific accommodations that an employer generally must provide to prevent liability. As the VVA explains, "'Reasonable accommodation' includes:

[1] more frequent or longer bathroom breaks,
[2] breaks to express breast milk,
[3] access to a private location other than a bathroom for the expression of breast milk,
[4] acquisition or modification of equipment or access to or modification of employee seating,
[5] a temporary transfer to a less strenuous or hazardous position,
[6] assistance with manual labor,
[7] job restructuring,
[8] a modified work schedule,
[9] light duty assignments, and
[10] leave to recover from childbirth."

See House Bill 827 (creating Va. Code Ann. § 2.2-3904(A) (July 1, 2020)).

Not unlike federal employment discrimination regulations, the VVA explains how an employer may defend a discrimination claim by proving undue hardship or the inability to successfully accommodate a pregnancy or pregnancy-related condition. If the accommodation places an unreasonable burden on the employer's ability to conduct business because of the cost of the accommodation, the size of the employer, or the nature of the accommodation, then the employer can argue that Virginia law does not require the requested accommodation. However, if the employer could provide a similar accommodation to another employee not experiencing pregnancy or a related condition, then the law will presume that the employer can provide that same accommodation for the pregnant and/or nursing employee. For example, if the employer has allowed other employees to work from home or telework due to illness or disability, then the employer must also grant the pregnant employee similar accommodations. In fact, the law states that an employer cannot "require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of such employee." See House Bill 827 (creating Va. Code Ann. § 2.2-3904(B)(5) (July 1, 2020)). Presumably an undue hardship defense under the VVA will prove a difficult burden for many employers to satisfy.

So, what else does an employer need to do in order to comply with this new law? Importantly, this new law mandates posting and notification requirements for employers. Employers must, by July 1, 2020:

• post notice of the VVA in a conspicuous location;
• include in any employee handbook notice of these provisions banning unlawful discrimination based on pregnancy and pregnancy-related conditions and the employee's rights to reasonable accommodation; and
• provide information about these pregnancy-related rights to all new employees and to any pregnant employee who provides notice to the employer that they are pregnant within 10 days of that employee's notice.

The VVA's dramatic alteration of the legal landscape for employers in Virginia will likely lead to increased claims and to increased employer liability. Taking steps to comply with these new requirements now will help employers minimize risk and costly litigation.