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Previous Updates
- Provisions in any non-disparagement agreement; and
- Details of any claim of sexual harassment.
Employees who request leave are eligible if, when the leave begins, they will have been employed for at least a 12-month period and 1,250 hours during the previous 12 months by that employer.
An employer must provide to an employee in any 12-month period:
- Up to 60 business days of leave to serve as an organ donor; and
- Up to 30 business days of leave to serve as a bone marrow donor.
Effective July 1, 2030, the subminimum wage for workers with disabilities is repealed.
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Discharge;
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Mandatory use of sick leave or vacation time; or
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Other adverse personnel action (which is not defined).
Seizure First Aid Poster
Effective July 1, 2022, employers of 25 or more employees in the Commonwealth must physically post information on seizure first aid in the workplace in a place visible to employees. The Department of Labor and Industry will disseminate the information electronically and by other yet-to-be-determined means. The information will be fully consistent with information and guidelines developed by the Epilepsy Foundation of America and any of its successor organizations.
https://www.epilepsy.com/sites/default/files/atoms/files/SFA%20Flier_HQ_8.5x11_PDF.pdf
Returns to FLSA Overtime Standards
Effective July 1, 2022, the existing provisions of the Virginia Overtime Wage Act (VOWA) are repealed and replaced with a provision that any employer that violates the overtime pay requirements of the federal Fair Labor Standards Act (FLSA) is liable to its employees for remedies or other relief available under the FLSA.
Unless exempt, employees covered by the FLSA must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay.
Civil Rights Notice
The Virginia Office of the Attorney General, Office of Civil Rights, has mandated that employers covered by the Virginia Human Rights Act with six or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year must post the civil rights notice in a conspicuous manner.
In addition to posting, information regarding an employee's right to reasonable accommodations for disabilities must be included in an employee handbook.
Finally, this information must also be directly provided to:
- New hires upon commencement of employment; and
- Any employee within 10 days of the employee's notice to the employer that they have a disability.
An employer may download this poster directly from the Virginia Office of Civil Rights website.
Also, click here for the Virginia Human Rights Act Reasonable Accommodation for Disability Poster.
Protections for Lawful Use of Cannabis Oil
Effective July 1, 2021, Virginia law is amended to prohibit an employer from discharging, disciplining or discriminating against an employee for the employee's lawful use of cannabis oil.
However, the amendment does not:
- Restrict an employer's ability to take any adverse employment action for any work impairment caused by the use of cannabis oil;
- Restrict an employer's ability to prohibit possession of cannabis oil during work hours;
- Require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding; or
- Require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.
Human Rights Act Amended
Effective July 1, 2021, the Virginia Human Rights Act (Act) is amended to:
- Add discrimination on the basis of disability as an unlawful employment practice;
- Require employers to provide reasonable accommodations for employees' disabilities that enable them to perform a particular job, unless the employer can show the requested accommodation would impose an undue hardship for the employer; and
- Prohibit employers from taking an adverse action against an employee who requests or uses a reasonable accommodation under the Act.
The Act requires employers 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. The Act also contains notice-posting requirements and the Office of Civil Rights will develop and publish a notice.
Also, effective July 1, 2021, the Act is amended to replace veteran status with military status as a protected class under antidiscrimination laws.
Military status means an individual's status as a:
- Member of the US uniformed forces or reserves;
- Veteran; or
- Dependent.
A dependent is a service member's spouse or child, or an individual to whom the service member provided more than half of the individual's support within 180 days immediately preceding an alleged discriminatory action.
Virginia Overtime Wage Act
Effective July 1, 2021, the Virginia Overtime Wage Act requires covered employers to compensate overtime-eligible employees at a rate not less than one and one-half times the employee's regular rate of pay for any hours worked in excess of 40 hours in any one workweek.
The Regular Rate
For employees paid on an hourly basis, the regular rate is the hourly rate of pay plus any other compensation allocated for that workweek, excluding any compensation that may be excluded from the regular rate under federal law, divided by the total number of hours worked in that workweek.
For employees paid on a salary or other regular basis, the regular rate is based on 40 hours per workweek. For example:
- $1,000 weekly salary plus $500 in commission (total weekly pay $1,500).
- Divide $1,500 by 40 (40 hours) which is $37.50.
- Worked 50 hours in the workweek.
- Overtime rate is $56.25 (1.5 x $37.50).
- Overtime pay is $562.50 (10 OT hours x $56.25).
- Total weekly pay is $2,062.50 ($1,500 + $562.50).
The Workweek
A workweek means a fixed and regularly occurring period of 168 hours or seven consecutive 24-hour periods. It need not coincide with the calendar week and may begin on any day and at any hour. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements.
The aforementioned regular rate requirements for employees paid on a salary basis effectively preclude covered employers from taking advantage of the fluctuating workweek method of calculating overtime available under federal law (the FLSA).
In addition, the Act has greater penalties for failing to pay overtime wages and the statute of limitations for bringing a claim for a violation of the Act is three years (longer than the two years for non-willful violations provided under federal law).
For questions on the law, you can reach out to your FrankAdvice HR Consultant.
Paid Sick Leave for Home Health Workers
Virginia’s Paid Sick Leave Law provides home health workers averaging at least 20 hours per week or 90 hours per month with paid sick leave. Home health workers are individuals who provide personal care, respite, or companion services to an individual who receives consumer-directed services under the state plan for medical assistance services (Medicaid).
Employees begin to accrue this paid sick leave at the start of employment, and they must earn, or accrue, at least one hour of paid sick leave for every 30 hours worked. However, employers can provide all paid sick leave an employee is expected to accrue at the beginning of the year. Paid sick leave is capped at 40 hours a year unless employers choose to expand that threshold.
Employers must provide paid sick leave to an employee at the employee’s request. Requests can be made orally, in writing, electronically, or in accordance with another established policy of the employer. Employers requiring notice of the use of paid sick leave must have a written policy that includes notice procedures. Employers can require reasonable documentation from employees who use paid sick leave for at least three consecutive workdays to support the purpose of the leave.
Legalization of Recreational Marijuana
In Virginia, recreational use and possession of up to one ounce of marijuana will be legal for adults 21 and older beginning July 1, 2021.
Virginia's law also provides that many arrest and conviction records for certain marijuana-related offenses will be automatically expunged. Employers are prohibited from asking job applicants to disclose arrests, criminal charges, convictions and civil offenses that have been expunged or are otherwise not open to public inspection, with certain exceptions.
On the medical marijuana front, another recently enacted Virginia law enhances workplace antidiscrimination protections for medical cannabis users. H.B. 1862 prohibits employers from discharging, disciplining or discriminating against an employee for the lawful medical use of cannabis oil unless failing to do so would result in a violation of federal law or the loss of a federal contract or federal funding. However, employers retain the ability to take adverse action for marijuana-related impairment or possession during work hours.
Minimum Wage Increase
Effective May 1, 2021, the minimum wage in Virginia increases from $7.25hr to $9.50hr. On January 1, 2022 it will increase to $11.00hr. Minimum cash wage payment for a tipped employee remains at $2.13 per hour.
