Employee Disability and Cannabis Oil Protections Set to Take Effect in Virginia

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Proskauer - Law and the Workplace

Quick Hit: Two new laws in Virginia providing disability discrimination protections and protections for medicinal use of cannabis oil for employees go into effect July 1, 2021.

Key Takeaway: Virginia, once known as a jurisdiction with very few state employment laws, is quickly changing that reputation with the passage of numerous new laws since the Democrats took control of the state legislature in 2019.  Employers operating in the Commonwealth, who in the past could largely focus solely on federal employment laws, must be aware of these new state laws and ensure they are in compliance.

More Detail:

Expansion of Disability Discrimination Protections and Accommodation Requirements

HB 1848 amends the Virginia Human Rights Act (“VHRA”) to provide additional employment protections to individuals with disabilities.  In addition to aligning existing disability discrimination protections to those of the Americans with Disabilities Act (“ADA”) by prohibiting discrimination against those who are qualified to perform the “essential functions of a job with or without reasonable accommodation,” the law creates new reasonable accommodation requirements.  Similar to those provided for by the ADA, the new law will require employers to provide reasonable accommodations necessary to assist otherwise qualified persons with a disability to perform their job.  Employers are required to engage in a good faith interactive process when an employee requests a reasonable 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.”

Like the ADA, the law contains an “undue burden” exception for the obligation to provide reasonable accommodations.  To avail itself of the exception, the employer must demonstrate the accommodation would impose undue hardship on the employer, assessed by considerations such as:

  1. Hardship on the conduct of the employer’s business, considering the nature of the employer’s operation, including composition and structure of the employer’s workforce.
  2. Size of the facility where employment occurs.
  3. The nature and cost of the accommodations needed, taking into account alternative sources of funding or technical assistance.
  4. The possibility that the same accommodations may be used by other prospective employees.
  5. Safety and health considerations of the person with a disability, other employees, and the public.

Employers cannot take adverse action against an employee because they request or use reasonable accommodations, or refuse employment to applicants because the employer will be required to provide them a reasonable accommodation.  Employers are also barred from requiring an employee take leave if another reasonable accommodation can be provided.

Virginia employers should also note that the new law requires employers to include information on employees’ rights to reasonable accommodations for disabilities in their employee handbook and post the same in a “conspicuous” place at the location of employment.  In addition, such information has to be provided directly to employees at the commencement of their employment and within 10 days of the employee providing notice to the employer that the employee has a disability.

New Protections for Employees Who Use Cannabis Oil for Medicinal Purposes

HB 1862 prohibits employers from discharging, disciplining, or discriminating against an employee for their “lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate symptoms of the employee’s diagnosed condition or disease.”

“Cannabis oil” under the law is “any formulation of processed cannabis plant extract, which may include oil from industrial hemp extract acquired by a pharmaceutical processor pursuant to state law; or a dilution of the resin of the cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.”

The law makes clear it does not (i) restrict an employer’s ability to take any adverse employment action for any work impairment or to prohibit possession during work hours, (ii) require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding.

As noted above these laws are set to take effect July 1, 2021.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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