A top priority for all HR professionals should be ensuring their organization is compliant with federal, state and local employment laws. This responsibility wouldn’t be so challenging if the laws never changed, multi-state employers didn’t exist and every employment situation was black and white, with no room for interpretation. Federal, state and local governments take these laws seriously, and no matter how burdensome compliance is for employers, failure to comply can result in a host of serious consequences. Financial penalties can be stiff and stoke the most fear in employers. If you employ a worker under 18 years of age in violation of the FLSA’s child labor protection regulations, it could set you back $12,845 for each employee. Run afoul of the FLSA’s minimum wage and overtime provisions, and you could be looking at a penalty of $2,014 plus employee back pay including interest and the value of lost benefits. OSHA takes violations very seriously. The penalty for repeated OSHA violations can go as high as $132,598.
One employment law area in which there’s been a lot of movement and change pertains to handling an employee with a disability or who is pregnant. Let’s start with a refresher on federal regulations before taking a deeper dive into the recent employment law changes in Virginia.
Pregnancy And Disability On A Federal Level
The preeminent federal law protecting those will disabilities is the Americans with Disabilities Act. In summary, the ADA requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. This includes prohibiting discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. The ADA restricts questions that can be asked about an applicant’s disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship.
When considering pregnancy and accommodation, the ADA is a little more murky. Under the ADA, employees who suffer from pregnancy-related disabilities, such as preeclampsia or diabetes, are entitled to reasonable accommodation. However, pregnancy itself is not considered a disability under the ADA. Therefore, pregnant employees without disabilities are not entitled to reasonable accommodation under the ADA. An employee with a disabling, pregnancy-related condition must notify her employer of the need for reasonable accommodation. Some examples of accommodation include providing a register clerk with a pregnancy-related disability a stool on which to sit during work if the disability affects her ability to stand for long periods of time. An employee with a pregnancy-related disability may have more doctor’s appointment because of her disability. An accommodation could be providing the employee intermittent leave to attend doctor’s appointments.
Once an employee notifies her employer of her disability and need for an accommodation, the ADA requires the employer to engage in an interactive process with the employee to discuss what specific accommodation she needs and how the employer may provide it. The employer is entitled to ask for certification from the employee’s medical care provider supporting the need for accommodation.
The Rehabilitation Act of 1973 was a predecessor to the ADA and is another law that prohibits discrimination on the basis of disability in programs conducted by federal agencies or receiving federal financial assistance, in federal employment and in the employment laws of federal contractors.
The Pregnancy Discrimination Act applies to employers with 15 or more employees and prohibits discrimination against pregnant employees with regard to any benefit of employment, including disability leave, health insurance, hiring, firing, layoff, pay, training, promotions, and job assignments. In short, employers must extend the same rights and benefits to pregnant employees as they do to other similarly-situated employees.
While the PDA doesn’t specifically require employers to accommodate pregnant employees, it does require employers to treat pregnant employees the same as non-pregnant employees who are temporarily disabled for other reasons. For example, if an employer offers light duty work to all employees who need light-duty work for other reasons, a pregnant employee is entitled to the same treatment.
The FMLA requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to women for any period of incapacity due to pregnancy, for prenatal care or for her own serious health condition following the birth of a child. An example of leave needed during a woman’s pregnancy could be for an employee who suffers severe morning sickness in the first month of her pregnancy. Another situation in which leave much be granted is to allow a pregnant employee to take time off to attend regular prenatal appointments.
Title VII Of The Civil Rights Act of 1964 prevents employers with 15 or more employees from discriminating on the basis of race, color, sex (including pregnancy), religion or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions and privileges of employment. Title VII provides protections to pregnant women by prohibiting pregnancy discrimination such as refusing to hire a female between the ages of 18 and 25 on the grounds she may become pregnant or refusal to hire a pregnant woman or one who has just given birth. It’s important to note that harassment in the workplace is a form of discrimination and strictly prohibited by Title VII. Harassment in the workplace related to pregnancy can include actions such as intimidation, insults, harassing comments over pumping breast milk or comments about a woman’s body.
What’s On The Horizon For Federal Employment Law?
The Pregnant Workers Fairness Act was drafted in an effort to fill in the gaps for pregnant employees among Title VII, the PDA, the ADA and the FMLA. The proposed law would clarify that employers are required to make reasonable accommodations for pregnancy-related work restrictions. Employers would be required to engage in an interactive process with employees to determine whether an accommodation is reasonable. Employees would be entitled to protection from retaliation, coercion, and intimidation for requesting or using an accommodation. Specifically, the bill declares that it is an unlawful employment practice to:
- fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
- require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
- require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
- take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.
This bill passed in the House on May 14, 2021, and goes to the Senate next for consideration. Smart HR will continue to track this bill’s progress through the legislative process.
Recent Changes to Virginia Employment Laws
Many states have their own laws pertaining to pregnancy and disability that may extend greater protections to employees. Currently, at least 31 states and the District of Columbia have passed bills similar to the Pregnant Workers Fairness Act, providing expanded protections to pregnant workers. Remember that in the case of a state law providing greater protections to employees than federal law, the state law takes precedence.
Virginia Human Rights Act (VHRA) – Pregnancy Accommodation
Last July 1, 2020, Virginia’s Human Rights Act became law requiring employers with five or more employees for a 20-week period in the current or preceding year to provide reasonable accommodations for pregnancy, childbirth or related medical conditions, including lactation, unless the accommodation would impose an undue hardship. Further protections for pregnant employees requesting a reasonable accommodation for pregnancy include prohibitions against:
- taking adverse actions against an employee;
- denying employment or promotions; or
- requiring an employee to take leave if another reasonable accommodation can be prodivded.
The law provides a non-exhaustive list of examples of reasonable accommodations including:
- “frequent or longer bathroom breaks [and] 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.”
As with the federal ADA, when an employee requests an accommodation, employers must engage in a timely, good faith interactive process with the employee to determine if the requested accommodation is reasonable and, if not, discuss alternative reasonable accommodations that may be provided.
Under the VA law, employers are required to post a conspicuous notice to employees of the law’s key provisions. Employers were also required to update their employee handbooks by October 29, 2020, to include the following information also required in the notice:
- “the prohibition against unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions”; and
- “an employee’s rights to reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions.”
Employees must be provided this information upon hire and within 10 days of an employee providing the employer notice of her pregnancy.
Virginia Human Rights Act (VHRA) – Disability Discrimination
Effective July 1, 2021, Virginia further expanded the scope of the VHRA to prohibit discrimination on the basis of disability. The new provision applies to Virginia employers with five or more employees, a broader range of employers than the minimum 15 covered by the federal ADA.
Employers are required to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability if necessary to assist the employee in the performance of his or her job, unless the employer can demonstrate the accommodation would impose an undue hardship. Further, Virginia employers are prohibited from:
- taking any adverse action against an employee who requests or uses a reasonable accommodation;
- denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee;
- requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability; and
- failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable, and if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.
Employers are required to update their employee handbooks to include information covering an employee’s right to reasonable accommodation for disabilities. Employers must also comply with a poster and notice requirement. The posting must be in a conspicuous location on the work premises. Employers must directly provide information about this law to new employees and within 10 days to an employee providing notice to the employer of his or her disability.
Get Smart HR’s Help With Employment Laws
Most employers truly want to do the right thing and comply with any and all regulations put in place to protect employees. However, compliance with employment laws can easily get lost in the shuffle of running a business and its day-to-day operations, particularly when dealing with crises like all businesses were subjected to during the pandemic. Is it time to pause and take a hard look at the state of your company’s compliance with employment laws? Among Smart HR’s array of services is an HR compliance audit in which a Smart HR consultant takes a deep dive into an organization’s policies and practices to ensure compliance with all applicable laws. Many Smart HR clients have taken it a step further and completely outsource their HR function to Smart HR for the peace of mind of knowing their HR operations are efficient, cutting edge and in compliance with all federal, state and local employment laws. Get Smart HR and call today.