Disability discrimination: Employers must provide reasonable accommodations for the known physical and mental impairments of otherwise qualified employees with disabilities if these accommodations are needed to assist them in performing a particular job, unless employers can show that the accommodations would impose an undue burden.

The following factors are considered in determining whether accommodations would impose an undue burden:

• the hardship on the employer’s business, taking into account the nature of its operations and its workforce composition and structure;
• the affected facility’s size;
• the nature and cost of the accommodations, taking into account alternate sources of funding or technical assistance available under Va. Code Ann. § 51.5-173;
• the possibility that the same accommodations could be used by other employees; and
• the safety and health considerations of employees with disabilities, other employees, and the public.

Until July 1, 2021, there is a rebuttable presumption that any accommodation costing more than $500 would impose an undue burden on an employer with fewer than 50 employees.

Employers have the right to choose among equally effective accommodations. Employers aren’t required to provide accommodations that are precluded under a lease’s terms or are prohibited by laws, ordinances, or regulations. Employers can make building modifications to provide reasonable accommodations without modifying the rest of an existing building to comply with Virginia’s Uniform Statewide Building Code requirements.

Va. Code Ann. § 51.5-41 (2021 Va. Laws 12 (HB 1848))

Fair employment practices law (effective July 1, 2021): It is an unlawful discriminatory practice for an employer to refuse to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist them in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue hardship. Consideration of whether an accommodation would constitute an undue hardship is based on:

• hardship on the conduct of the employer’s business, considering the nature of its operations and its workforce composition and structure;
• size of the facility where employment occurs;
• the nature and cost of the accommodations needed, taking into account alternative sources of funding or technical assistance available under Va. Code Ann. § 51.5-173;
• the possibility that the same accommodations may be used by other prospective employees; and
• the safety and health considerations of employees with disabilities, other employees, and the public.

It is also an unlawful discriminatory practice for employers to:

• take an adverse action against employees who request or use reasonable accommodations;
• deny employment or promotion opportunities to otherwise qualified applicants or employees because the employer will be required to make reasonable accommodations for a disability;
• require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability;
• fail 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 it is determined that the accommodation is not reasonable, discuss alternatives.

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Under Title I of the Americans with Disabilities Act (ADA), employers, including state and local governments, with 15 or more employees, are prohibited from discriminating against people with disabilities. Title I protects qualified individuals with disabilities in several areas, including job application procedures, hiring, firing, advancement, compensation and job training. It is also unlawful to retaliate against someone for opposing employment practices that discriminate based on disability, or for filing an ADA discrimination charge. The Office of Federal Contract Compliance Programs (OFCCP) shares enforcement authority for Title I of the ADA with the U.S. Equal Employment Opportunity Commission (EEOC), which has primary responsibility for enforcing the employment provisions of the law. (Note: Federal employees and job applicants are covered by Section 501 of the Rehabilitation Act of 1973 instead of the ADA.