Employee disability and cannabis oil protections set to come into effect in Virginia – Jobs and HR


United States: Employee disability and cannabis oil protections set to come into effect in Virginia

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Quick hit: Two new laws in Virginia offering protections against disability discrimination and protections for the medicinal use of cannabis oil for employees will come into effect on July 1, 2021.

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

More details:

Expanded Disability Discrimination Protections and Accommodation Requirements

HB 1848 amends the Virginia Human Rights Act (“VHRA”) to provide additional employment protections for people with disabilities. In addition to aligning existing protections against discrimination on the basis of disability with those of the Americans with Disabilities Act (“ADA”) by prohibiting discrimination against those who are qualified to perform the “essential functions of employment with or without reasonable accommodation ”, the law creates new accommodation needs. Similar to those provided for in the ADA, the new law will require employers to provide reasonable accommodations necessary to assist otherwise qualified persons with disabilities to perform their jobs. Employers are required to engage in a good faith interactive process when an employee requests reasonable accommodation “to determine whether the requested accommodation is reasonable and, if it is determined that such accommodation is unreasonable , discuss other accommodations that can be provided ”.

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

  1. Difficulties in the conduct of the employer’s business, given the nature of the employer’s activities, including the composition and structure of the employer’s workforce.
  2. Size of the establishment where the job is located.
  3. The nature and cost of the necessary arrangements, taking into account alternative sources of financing or technical assistance.
  4. The possibility that the same facilities can be used by other potential employees.
  5. Safety and health considerations for the person with a disability, other employees and the public.

Employers cannot take adverse action against an employee for requesting or using reasonable accommodation, or deny applicants a job because the employer will be required to provide them with reasonable accommodation. Employers are also prohibited from requiring an employee to take time off if other reasonable accommodation can be provided.

Virginia employers should also note that the new law requires employers to include information about employees’ rights to reasonable accommodation for disabilities in their employee handbook and to post it in a “visible” location on the premises. of work. In addition, this information must be provided directly to employees at the start of their employment and within 10 days of the employee notifying the employer that they have a disability.

New protections for employees who use cannabis oil for medicinal purposes

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

“Cannabis oil” under the law is “any formulation of processed cannabis plant extract, which may include industrial hemp extract oil acquired by a pharmaceutical processor in accordance with state law; or a dilution of the cannabis plant resin that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and not more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose. “

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

As noted above, these laws are expected to come into force on July 1, 2021.

Employee disability and cannabis oil protections set to come into effect in Virginia

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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