29 Jul

July 2021 Virginia HR Legal Updates

Posted at

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Virginia Passes Medical Cannabis Oil Use 

Update Applicable to:
All employers in Virginia. 

What happened?
On March 25, 2021, Governor Ralph Northam passes House Bill 1862 (HB1862) into law. 

What are the details?
The law, effective July 1, 2021, provides protections to employees who are using cannabis oil with a valid written certification issued by a doctor. These restrictions apply only to the medical use of cannabis oil, not medical marijuana. Employers are prohibited from discharging, disciplining, or discriminating against employees who are lawfully using the cannabis oil. 

However, employers can still take adverse action against an employee for any work impairments caused by the use of cannabis oil and prohibit possession of cannabis oil during work hours. The law also states that nothing in this provision requires employers to commit any act in violation of federal law or that would lead to the loss of a federal contract or federal funding. This may mean that federal contractors who must comply with drug-free workplace laws are exempt from this provision. The law also does not require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test. 

The law can be read here

An article covering the law can be read here. 

What do employers need to do?
Employers should review the law and information to make any relevant adjustments to their workplace policies, specifically when dealing with employees who may be using cannabis oil while working. 

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Virginia’s Recreational Cannabis Law Passes 

Update Applicable to:
All employers in Virginia. 

What happened?
On April 4, 2021, Virginia’s House and Senate Committees passed Senate Bill 1406 (SB1406) into law. 

What are the details?
Effective July 1, 2021, the law establishes the Virginia Cannabis Control Authority to legalize, tax and regulate recreational marijuana use. This also results in the expunging of all misdemeanor violations and the Virginia State Police is directed to determine which marijuana-related offenses are automatically expunged from state record by July 1, 2025. 

If a person has successfully had a felony marijuana charge expunged to be permanently erased, employers cannot then require an applicant to answer any question related to any arrest, criminal charge, conviction, or civil offense that has been expunged. Although the law does not stop employers from prohibiting marijuana in the workplace or drug testing. 

The law can be read here

An article covering the law can be read here. 

What do employers need to do?
Employers should review the law and information here to make any relevant adjustments to their workplace policies due to the updated cannabis laws. The law firm, Jackson Lewis P.C., recommends that employers should, at minimum, consider how they want to message their expectations to their workforce considering the swirling—and often contradictory—information and messages regarding cannabis use and the workplace. 

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Virginia’s Overtime Wage Act 

Update Applicable to:
All employers in Virginia. 

What happened?
On March 31, 2021, Governor Ralph Northam signed the Virginia Overtime Wage Act (VOWA) into law. 

What are the details?
VOWA (Va. Code § 40.1-29.2) will be made effective July 1, 2021 and will make significant alterations to employer’s wage and hour obligations. The bill will impact how overtime for both hourly and salary non-exempt workers are calculated. 

Hourly employees will now have their overtime rate obtained based on the VOWA’s regular rate calculation. The calculation will be the employee’s hourly rate plus other wages, such as commissions or non-discretionary bonuses paid or allocated during that same workweek, minus any applicable FLSA exclusions and divided by “the total number of hours worked in that workweek”. If the employee worked over 40 hours in the fixed workweek, then the employee must receive 1.5 times the calculated regular rate of pay for all hours worked by the employee over 40 hours. 

An example of the calculation is:

  • Regular Wages: $15 x 50 = $750
  • Wages + Bonus: $750 + $200 = $950
  • Regular Rate: $950/50 = $19/hour
  • Overtime Rate: $19 x 1.5 = $28.50/hour 

For non-exempt employees paid on a salary or other regular basis, their regular rate is defined as one-fortieth of all wages paid for the workweek, include wages, commissions, and non-discretionary bonuses. The employer would then take the employees’ wages earned that workweek, divide it by 40, and then for any hours worked by the employee over 40 in that workweek, pay 1.5 times that calculated regular rate for all overtime hours. 

An example of the calculation is:

  • Regular Rate: $1,200/40 = $30/hour
  • Overtime Rate: $30 x 1.5 = $45
  • Overtime Pay: $45 x 10 = $450 

The Act can be read here

Articles on the Act can also be read here and here. 

What do employers need to do?
Employers should review the law to be aware of the necessary requirements and make any changes to their relevant policies including pay and overtime.

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Virginia’s Reasonable Accommodation Law Enacted

Update Applicable to:
All employers in Virginia with more than five employees. 

What happened?
On February 25, 2021, Virginia’s General Assembly passed House Bill 1848 to expand protections given by the Virginia Human Rights Act (VHRA). 

What are the details?
Effective July 1, 2021, employers are required to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability if necessary to assist that person in performing a particular job. Accommodation must be provided, unless an employer can demonstrate the accommodation would impose an undue hardship. Employers will also be required to update employee handbooks with information that covers an employee’s right to reasonable accommodation for disabilities. 

Employers are required to display the notice poster in a conspicuous location on work premises. The Division of Human Rights of the Department of Law is tasked to develop a notice within 120 days of the effective date.  Employers must directly provide information about this law to new employees and any employee within 10 days of such employee providing notice to the employer that they have a disability. 

Virginia employers also will be prohibited from: 

  • Taking any adverse action against an employee who requests or uses a reasonable accommodation.
  • Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee.
  • Requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability.
  • Failing 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 such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.

If a Virginia employer wants to deny an accommodation due to an undue hardship, the employer must consider: 

  • 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.
  • Size of the facility where employment occurs.
  • Nature and costs of the accommodations needed, taking into account alternative sources of funding or technical assistance.
  • The possibility that the same accommodations may be used by another prospective employee.
  • Safety and health considerations of the person with a disability. 

The Bill can be read here

An article on the Bill can be read here. 

What do employers need to do?
Employers should review the Bill and their policies to ensure they are in compliance with providing accommodations to employees that are covered by this law.


 

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