Virginia requires reasonable accommodation for pregnant workers

October 16, 2021

Virginia employers with six or more employees must provide reasonable accommodations to employees for pregnancy, childbirth and related medical conditions, including lactation.

This law is an expansion of what is required under federal law.

Although the law went into effect in 2020, many employers seem to be unaware of the unique nature of Virginia law as it relates to pregnancy conditions.

Employers have just 10 days after being on notice that an employee is pregnant to provide the employee with her rights under the law. In addition, employers must post in a conspicuous location and include in any employee handbook information concerning an employee’s rights to reasonable accommodation for known limitations related to pregnancy, childbirth or related medical conditions.

This same information must also be provided to new employees upon commencement of their employment.

Upon being on notice of the need for a reasonable accommodation, employers must engage in an interactive process with the employee and provide reasonable accommodations to applicants and employees who are experiencing pregnancy, childbirth or related medical conditions (including lactation), unless doing so would pose an undue hardship.

The law also prohibits retaliation against those who request reasonable accommodation under the law.

Reasonable accommodations can include modifications such as:

  • longer or more frequent bathroom breaks;
  • acquisition or modification of equipment or access to or modification for employee seating;
  • a temporary transfer to a less strenuous or hazardous position;
  • assistance with manual labor;
  • light-duty assignments;
  • leave to recover from childbirth;
  • access to a private location other than a bathroom for the expression of breast milk; and
  • breaks to express breast milk.

An employer does not have to provide a reasonable accommodation if doing so would create an undue hardship. Employers will need to consider:

  • the extent of a 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;
  • the size of the facility where employment occurs; and
  • the nature and cost of the accommodations needed.

The law cautions employers that the fact that the employer provides or would be required to provide a similar accommodation to other classes of employees “shall create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.” In other words, employers can’t claim that the reasonable accommodation is an undue hardship when it’s doing it for other employees.

Historically, employers have required that pregnant workers take a leave of absence if pregnancy prevented them from continuing in their roles. Under Virginia law, this is a last resort. 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 the employee.

Employers also violate the state law if they:

  • fail to make reasonable accommodations;
  • take adverse action against an employee who requests or uses a reasonable accommodation pursuant to this section; or
  • deny employment or promotion opportunities to an otherwise qualified applicant or employee because such employer will be required to make reasonable accommodation to the known limitations of such applicant or employee related to pregnancy, childbirth or related medical conditions.

If an employee announces she is pregnant in a job interview, the employer cannot reject her candidacy as a result.

Employees who are aggrieved under the law have a right to sue in state court within two years or they can file a complaint with the Office of Civil Rights of the Department of Law and can then file suit in state court following the issuance of the right to sue.

Virginia employers were caught a bit off guard with the flurry of employment legislation passed in the past two years, but they need to be aware of this and the many other new requirements.