New Virginia employment laws require immediate attention from businesses to get into compliance

July 4, 2021

There are several new Virginia laws that went into effect July 1 that impact employers and employer policies.

The vast new employment laws require immediate attention from employers to get into compliance, provide the necessary disclosures and comply with the provisions.

Here are three of the new laws approved by the General Assembly:

  • The Virginia Human Rights Act now requires Virginia employers with more than five employees to provide reasonable accommodations to employees with physical or mental disabilities.

This means very small employers must engage in the process and provide reasonable accommodation when made aware an employee has a disability unless doing so would create an undue hardship.

This law generally tracks the federal Americans with Disabilities Act, which applies only to employers with 15 or more employees, with some nuanced exceptions.

Employers are prohibited from retaliating against an employee who requests an accommodation. Employers also cannot require that an employee take leave as an accommodation if another reasonable accommodation can be provided.

Employees who believe they have been aggrieved under the law have two years to file a complaint in state court or the employee can file a complaint with the state Division of Human Rights within two years.

Violations of the law can include compensatory damages, back pay, other equitable relief, and reasonable attorney fees and costs as well as other relief.

  • The Virginia Overtime Wage Act mostly aligns with the federal Fair Labor Standards Act but includes different methods for how the regular rate of pay is calculated and also has a longer statute of limitations and increased liability for damages for employers.

Every Virginia employer needs to immediately get in order the way it pays wages.

Most employers are likely not in compliance because of the complexity around who is exempt from overtime, what counts as working time, and how overtime is calculated.

The new law applies to “all employers operating a business.”

According to the new law, employers cannot withhold any earned compensation other than for typical wage withholdings without written and signed authorization of the employee.

“No employer shall require any employee, except executive personnel, to sign any contract or agreement which provides for the forfeiture of the employee’s wages for time worked as a condition of employment or the continuance therein, except as otherwise provided by law,” according to the new law.

This means if an employee damages property or is short in the cash drawer, the company can’t simply deduct this from the employee’s pay.

Other than certain agribusinesses, employers must provide all employees certain paystub disclosures.

Failure to properly pay wages can lead to fines, damages, or jail.

Employers can be guilty of a Class 1 misdemeanor if the value of the wage earned and not paid is less than $10,000, and if it is a second offense or the value is $10,000 or more, the employer can be guilty of a Class 6 felony.

Businesses who violate the law also can be liable for liquidated damages, interest, and potentially a civil penalty of $1,000 per violation.

Employees also can bring an individual or collective action against the employer who fails to pay timely wages.

If there is a “knowing” violation by a company, the business can be liable for treble damages. Employees have three years to file a cause of action.

  • Possession of marijuana is legal in Virginia under certain circumstances.

Federal law still prohibits the possession or use of marijuana. Employers who conduct drug testing need to determine their policy on marijuana use.

A separate Virginia law states that employers cannot discharge, discipline, or discriminate against an employee for lawfully using “cannabis oil” as defined by law “pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to” other provisions of Virginia law.

This is more than a note from the doctor, requiring registration and other processes.

The law gives employers the right to take action against an employee for any “work impairment” that is caused by the use of cannabis oil and can also prohibit possession of the substance during work hours. Employers cannot be compelled to violate federal law or loss of a federal contract or federal funding in complying with a medical certification.