Virginia Employers: Prepare to Provide Accommodations for Pregnant Employees

Effective July 1, 2020, Virginia employers with 5 or more employees must be prepared to address and provide pregnancy-related accommodations to its employees. Similar to the Americans with Disabilities Act, the new law requires Virginia employers to engage in a timely, good faith interactive process to determine if a reasonable accommodation can be provided to an employee with limitations related to pregnancy, childbirth, or related medical conditions, specifically including lactation. This process starts once an employee requests an accommodation related to pregnancy, childbirth, or a related medical condition and/or notifies the employer that the employee is pregnant. Additionally, as further discussed below, employers are required to provide an employee with a summary of the non-discrimination and accommodation aspects of the law within 10 days of the employee providing notice of the pregnancy.

The new law provides a non-exhaustive list of reasonable accommodations, including:

• 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 access to or modification of employee seating,
• a temporary transfer to a less strenuous or hazardous position,
• assistance with manual labor,
• job restructuring,
• a modified work schedule,
• light duty assignments, and
• leave to recover from childbirth.

Employers must only provide an accommodation if it is reasonable. If an employee requests an accommodation that the employer considers unreasonable, the process does not stop there – the employer must discuss alternative accommodations. The accommodation must also not cause undue hardship on the business. Factors considered in determining whether an undue hardship exists includes the hardship on the conduct of the employer’s business, the size of the facility where the employee works, and the nature and cost of the accommodation. If Virginia courts adopt a similar undue hardship analysis applied in federal ADA cases, undue hardship will likely to be difficult for employers to prove.

The new law also provides a few nuances that even the most well-intentioned employers could fall victim to if not careful. Importantly, especially as employees are returning to the workplace during the COVID-19 pandemic, employers are prohibited from requiring an employee to take leave if another reasonable accommodation can be provided to the employee’s known limitations related to pregnancy, childbirth, or related medical conditions, including lactation. Employers must also be cognizant of accommodations provided to employees with medical conditions other than pregnancy as the new law presumes that the accommodation would not cause an undue hardship if already provided to a different employee.

If an employee believes that that the employer failed to reasonably accommodate the employee’s pregnancy or pregnancy-related condition, the employee can file suit against the employer. A successful employee can recover up to one year of back pay, interest, compensatory damages (which are uncapped), injunctive relief, and attorney’s fees.

Employers also have an affirmative duty to notify employees of their rights and requirements under the new law. Specifically, employers must:

• include in their employee handbook notice of the law’s provisions banning unlawful discrimination based on pregnancy and pregnancy-related conditions and the employee’s rights to reasonable accommodation;
• post a summary of the law where other legally-required postings are located;
• provide a summary of the law to new employees; and
• provide a summary of the law to pregnant employees within 10 days of the employee providing notice that the employee is pregnant.

The Virginia Department of Labor is expected to release a form employers can use for this purpose. Employers have until October 29, 2020 to comply with the notice requirements.

Virginia employers must be prepared to comply with this new law as of July 1. Please contact our Employment Team if you have any questions.