The Virginia General Assembly’s 2023 legislative session has concluded. With a divided government, modest but important updates were made to employment laws in the commonwealth. This included bills addressing employee organ donation and use of employee social security numbers.Each of these laws is slated to take effect July 1, 2023, but Virginia employers should begin preparing now to ensure compliance.
Under the Americans with Disabilities Act (ADA), employers do not have to excuse an employee from performing an essential function of a job as a reasonable accommodation. Several courts have found that a job duty is an essential function where an employee performs it up to twenty percent of the time, particularly where the job description suggests that an employee must be able to perform it. The Eleventh Circuit has recently gone in a different direction. In Brown v. Advanced Concept Innovations, Inc., the Eleventh Circuit held that such a function was not essential, and thus, an employer violated Florida’s anti-discrimination law (which courts interpret consistently with the ADA) by failing to excuse an employee from performing it. While Brown may arguably be an outlier, it reinforces the importance of maintaining accurate and up-to-date job descriptions.
Governor Gavin Newsom has signed AB 1949 into law, making it unlawful for employers with five or more employees to deny an employee’s request to take up to five days of unpaid bereavement leave upon the death of a family member. AB 1949 is codified as an amendment to the California Family Rights Act (CFRA), but bereavement leave under the new law must be considered separate and distinct from the CFRA’s family and medical leave entitlement. In other words, the five days of bereavement leave must be provided in addition to the 12 weeks of family and medical leave permitted under the CFRA. The new law will take effect on January 1, 2023.
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