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HR Law Alert: Virginia Law Alert, July 2021

Mid-year Employment Law Updates
On July 1, several new laws take effect in Virginia that affect employment. Below we discuss the impacts of the expansion of the human rights law, the legalization of cannabis (marijuana), the new overtime law, and the new sick leave law for home health workers.

Disability Added to the Human Rights Law
The state has added disability to the list of classes and characteristics protected by its human rights law. The law prohibits termination based on a protected class for employers with six or more employees and prohibits any kind of discrimination based on those classes for employers with 15 or more employees.

The changes include a requirement that employers provide reasonable accommodations for employees with disabilities and list specific actions that constitute violations in the context of accommodations for disabilities. To learn more about the accommodation requirements, search Virginia EEO in the HR Support Center.

Employers must post information concerning an employee’s rights to reasonable accommodation for disabilities in a conspicuous location and include it in any employee handbook. The state hasn’t provided a poster. We recommend checking here for updates. This information must also be provided to new employees directly and given to any employee who provides notice to the employer that they have a disability, within 10 days of that notice.

It’s worth noting that a different Virginia law already has disability protections for employees, regardless of employer size.

Military Status Now a Protected Class
The state has changed the word “veteran” to “military status” within its human rights law. As noted above, this law prohibits employers with six or more employees from terminating employees based on their military status and prohibits employers with 15 or more employers from discriminating generally. This change expands who is protected from employment discrimination. Military status has a broad definition and includes:
1. A member of the uniformed forces of the United States or a reserve component,
2. A veteran, or
3. A dependent of a service member (as defined by law).
While veterans and service members already had certain rights and protections under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), this change provides protections for dependents, as well as a way for employees to bring a claim under state law.

New Overtime Law
Virginia has amended its wage and hour laws in several ways, many of which bring it in line with the federal Fair Labor Standards Act (FLSA). As a result, you likely won’t have to change your pay practices unless you use the following pay schemes.

First, the fluctuating workweek method of paying salaried non-exempt employees for overtime is no longer allowable in Virginia. If you have salaried non-exempt employees who have been paid overtime at a rate of .5 times their regular rate of pay instead of 1.5 times their regular rate of pay, please search the HR Support Center for VA OT for a more detailed explanation of the law.

Additionally, as drafted, the new law appears to disallow payment of exempt computer employees on an hourly basis. If you are paying exempt computer employees straight time (of at least $27.63) for all hours worked, you should consider changing their method of payment. You can find more information, also on the Virginia Overtime page, on the HR Support Center.

There are a few unresolved ambiguities in the law, and at least one drafting error, so we are hopeful that the state will provide additional guidance or regulations soon, which may change how the new law is applied. If there are significant changes, we will send another update.

Cannabis Is Legal
Last year, Virginia legalized medical cannabis (marijuana). This year, the state has taken two more steps: employees now have protections for off-duty medical use, and recreational cannabis is legal.

Protections for Off-Duty Medical Use
Employers can’t discharge, discipline, or discriminate against an applicant or employee for using cannabis oil. To be protected, the applicant or employee has to have a valid written certification from a doctor, physician assistant, or nurse practitioner.

However, these protections don’t apply under any of these circumstances:

• The employee is impaired by or is in possession of cannabis oil during work hours.
• The employer would violate federal law, lose a federal contract, or lose federal funding.
• The employer is a defense industrial base sector employer (or prospective employer) as defined by the US Cyber security and Infrastructure Security Agency and the employee tests positive for THC* in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.
*THC is the psychoactive ingredient in cannabis that drug tests screen for.

Recreational Use Legalized
The new law doesn’t specifically address employers’ rights or obligations regarding recreational cannabis, except to expand its ban-the-cannabis-box law, which took effect last year. Specifically, as of July 1, you can’t ask applicants to disclose their criminal history of a misdemeanor conviction for the sale, gift, distribution, or possession of cannabis with the intent to sell, give, or distribute it. (The current ban-the-cannabis-box law prohibits inquiries regarding the possession of less than an ounce with no intent to distribute.)

Regardless of the fact that recreational use has been legalized, employers can continue to prohibit cannabis at work and discipline employees who fail a drug test. As noted above, however, if the employee uses cannabis for medical reasons, then you’d need to excuse a failed drug test unless an exception applies.

Employers who maintain a drug testing program may want to keep in mind that drug tests can’t determine whether an employee is currently high or when cannabis was last used, since THC can stay in a person’s body for weeks. If you have a no-tolerance policy in a state where recreational cannabis is legal, you may end up screening out qualified applicants or terminating high-performers (no pun intended) for off-duty use. A common alternative is to limit testing for cannabis to safety-sensitive positions or when you have evidence that an employee is actually high on the job.

Sick Leave for Home Health Care Workers
Beginning July 1, 2021, home health employees (employees) who work an average at least 20 hours per week or 90 hours per month must accrue at least one hour of paid sick leave for every 30 hours worked. Home health employees are workers who provide personal care, respite, or companion services to someone who receives consumer-directed services under the state plan for medical assistance services (Medicaid).

Employees are entitled to earn and use up to 40 hours per year of paid sick leave. Exempt employees can be presumed to work 40 hours per week, unless they are regularly scheduled to work less than 40 hours, in which case accrual can be based on their usual schedule. Employers may choose to frontload sick leave at the beginning of each year by giving each employee as many hours as they are likely to earn in the year.

Employees must be allowed to carry over the amount of sick leave they earn in a given benefit year to the next one.

Use of Leave
Employees may use their paid sick leave for the following:
• Mental or physical illness, injury or health condition of the employee or their family member (which has a broad definition in the law)
• Need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of the employee or their family member
• Preventive medical care for the employee or their family member

Notice and Documentation
Employees must be allowed to request sick leave orally. Employers may request reasonable notice from employees, but if they intend to enforce a specific notice policy, that policy must put it in writing. Employers can request documentation of the need for leave if an employee is gone for three or more consecutive workdays.

No Retaliation
As with most sick leave laws, it is unlawful for an employer to take any kind of retaliatory action against an employee for requesting or using their accrued sick leave or claiming that the employer has violated the sick leave law.

This law is remarkably short and we encourage employers who are subject to it to read through the text, here. Additional details are available on the HR Support Center.

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