Polygraph Examinations for Virginia Employees

We represent Virginia employees in employment matters. When an employer seeks to use a polygraph examination in an employment context you may need legal advice. We are often asked about whether or not a Virginia employer can require an applicant or employee to take a polygraph examination in regards to hiring or retention decisions. The answer, while generally no, has a number of implications for both Virginia employees and employers. It is important to obtain legal counsel on these issues prior to taking a polygraph examination when issues arise.

This article discusses some of the issues that can arise in the context of attempting to require Virginia employees to take a polygraph examination related to their employment.

For Virginia employees, there are both federal and state restrictions on polygraph usage. It is important to know both areas of law.

What is the Employee Polygraph Protection Act

On the federal level, Congress enacted the Employee Polygraph Protection Act, 29 U.S.C. §§ 2001- 2009 (EPPA of Polygraph Act). The EPPA provides for strict limits on the use of polygraphs in the workplace for employees and applicants.  The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant take a polygraph examination.  The law also prohibits employers from utilizing the results of any polygraph examination.

The EPPA does not necessarily apply to Virginia employees who work for Federal, State and local governments. Polygraph examinations can also often be part of the legal processing of a federal security clearance.  It also does not apply to private sector employees engaged in  security-related activities (e.g. Security Guard, Armored car services). The Polygraph Act also permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act here.

When are Polygraph Examinations Permitted for Virginia Employees?

When polygraph examinations are permitted for private sector employees in Virginia, there are numerous strict rules that most be followed.  These include “including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.”

The courts in Virginia, federal and state, have not had occasion to rule on these issues too often, but these cases likely get resolved early due to employer liability.  Harmon v. CB Squared Servs., 624 F. Supp. 2d 459, 472-472) (E.D.Va., Jan. 29, 2009) (Former employee was asked to submit to polygraph examination by employer and was told that his examination revealed deception; employer not granted dismissal of case because facts show that the employer had violated EPPA by causing the employee to take a polygraph examination and by referring to the results of the examination at the meeting to discuss the test results).

Should an employer be found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for: (1) penalties up to $10,000; (2) lost wages, benefits and (3) attorney’s fees. There is also equitable relief where an individual can seek reinstatement or lost promotions as a result of the violations of the EPPA.  In other words, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.

Virginia State Polygraph Protections

In the Commonwealth of Virginia, there are also additional protections for employees with regards to polygraph examinations.  Pursuant to the Virginia Code, the only major restriction on employer polygraph testing in Virginia involves the subject matter of such testing.  Virginia bars questions about an applicant’s prior sexual activities unless it is related to a conviction of such a criminal violation of the laws of Virginia.

The 1977 Virginia law, in Va. Code Ann. § 40.1-51.4:3, titled the Prohibition of use of certain questions on polygraph tests for employment, states as follows:

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We represent employees in Virginia in employment investigations involving employee alleged misconduct. When you are notified that you may be the subject of a workplace investigation, it is important to seek legal advice and possible representation from a Virginia employment lawyer. It is always difficult for an employee to be notified that they are the subject of a workplace investigation, but we are here to help them defend their career if this occurs.

When a serious investigation is being conducted into your conduct, you need to be prepared to respond to any allegations through counsel. Do not leave your best interests in the hands of an employer and their investigator.

Employment Allegations Require Employer Investigations

It is common for employees to be investigated in the workplace. Virginia employers typically conduct workplace investigations into employee complaints because they can face legal consequences (claims of negligence, discrimination) if they do not do so. For example, if an individual alleges discrimination or illegal activity in the workplace and the claims are not investigated, an employer can be potentially held liable by employees affected by the conduct.

The same type of investigation is necessary when dealing with claims of whistleblowing or other alleged inappropriate conduct at work. The point is that Virginia employers will usually conduct a workplace investigation if they receive a complaint. The level of investigation that an employer will conduct depends on the severity of the allegations.

How Virginia Workplace Investigations Start

Employee investigations typically start with an employee complaint alleging that some misconduct has been committed in the workplace. Sometimes, employees can also be investigated for issues occurring outside of work. A complaint usually starts when the employee reports it to Human Resources, a supervisor or other management personnel. Once reported, the misconduct complaint can lead to an investigation. Almost always, in most employment investigations, the employer will hire an outside law firm (or occasionally use internal attorneys) to conduct an employment investigation and will act as the investigator.

Once the investigator is appointed, they will start their investigation.Keep in mind that the employer’s goal in these investigations is to minimize liability for themselves. The investigator is not there to always get to the truth of the matter or to protect your interests. In these types of investigations, complaining employee may also be represented or advised by their own legal counsel.

Investigative Steps

While an investigator may find an individual employee at fault, the investigator usually wants to conclude and document that there was no fault on the part of an employer. When a finding of fault is made, there are more significant problems for an employer. The following steps usually take place in an employer investigation:

1. An employee files a workplace complaint;
2. The complaint is reviewed by the employer or Human Resources;
3. An investigator is usually appointed to investigate the complaint;
4. The investigator reviews the complaint and plans their investigation;
5. The investigator reviews any documentation or emails or other evidence available to prepare for interviews;
6. The investigator interviews the complainant or complainants about the conduct complained of;
7. The investigator interviews the employees with knowledge of the issues in the complaint;
8. The investigator interviews the accused employee or employees;
9. The investigator conducts follow-up interviews of any witnesses as needed;
10. The investigator reviews all company policies in conjunction with their findings;
11. The investigator issues a final report with recommendations to an employer;
12. The employer evaluates the recommendations in the investigative report;
13. The employer will take action based on the findings in the report; and
14. The employer’s action can involve disciplinary action against the employee.

Results of Workplace Investigations

Once the employer’s investigation is over, the results and actions taken by the employer can vary. A formal report is usually prepared, along with recommendations on actions that could be taken. The investigation can result in termination or other discipline for an accused employee. The investigation can also vindicate the accused employee. In either event, an employer must be careful to avoid retaliation against a complaining employee, even when their complaint is found to be unjustified. Each investigation is different, and different employers vary in how they handle workplace investigations. The proper handling of an employment investigation can protect employees in the workplace and alsoreduce employer liability. However, it can often be the case that the employer is simply interested in terminating the employee involved instead of fairly resolving disputes. For this reason, it is very important for employees to have their own attorney.

Workplace Reporting Under Virginia Law

While results of workplace investigations in Virginia have not necessarily been a public affair in the past, that is slowly changing. In 2025, Virginia enacted Workplace Violence Reporting in Healthcare Workplaces. While this is just one type of conduct, Virginia may eventually expand this type of reporting to other types of alleged misconduct. This is one example of Virginia starting to require investigations into workplace conduct.

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If you are an employee in Virginia and need assistance with an employment investigation or other issue, please contact our office at 703-668-0070 or through our website to schedule a consultation.

We represent Virginia employees in non-compete agreement issues. Non-compete agreements and clauses are important for employees to consider in joining or leaving an employer. Northern Virginia, given its proximity to Washington, DC, has numerous businesses engaged in government contracting. Given this fact, and the fact that these types of businesses tend to be very competitive, there has been a significant rise in the number of employees that are required to sign non-competition or “non-compete” agreements as part of their employment requirements. Over the past 10 years or so, we have noticed that businesses in Virginia are using “non-compete” agreements in their hiring processes far more than before. The rise in non-compete agreements in Virginia has not been limited to just government contractor positions, but also includes many types of other businesses as well ranging in size from small to large. At the same time, the laws regarding non-compete rules are evolving in Virginia and elsewhere.

What is a Non-Compete Agreement?

A non-compete agreement is merely a written agreement where an employee agrees not to leave an employer and then compete for the same business when they leave that employment. Typically, non-compete clauses are inserted in employment agreements by an employer during the hiring process and have become somewhat commonplace. Common characteristics of non-compete agreements include duration of the non-competition period, limits as to competition for certain customers and the geographic boundaries of the non-competition area. If you work in Virginia and have signed a non-compete agreement with your employer, former employees can face legal issues if they violate them. That is why it is important to get legal help in negotiating these agreements and attempting to resolve issues that later arise from alleged violations by an employer.

Types of Issues That Arise in Virginia Non-Compete Agreements

There are any number of issues that can arise because of a non-compete agreement or clause in Virginia. An employer may accuse a former employee of violating the prior agreement. In such cases, hiring a Virginia employment attorney is critical to resolve the issues before they get into court. Non-compete agreements in the Commonwealth of Virginia tend to be viewed as somewhat disfavored and have been viewed somewhat negatively as a type of restraint on business. As a result, in Virginia, non-compete agreements have a better chance of success, if enforcement is attempted, the more narrowly tailored they are. Courts in Virginia will enforce reasonable non-compete agreements. Non-compete agreements, in this narrow sense, must be prepared to: (1) protect a bona fide employer’s interest; (2) must be reasonable; and (3) must not be against public policy. There are a number of specific features that come into play in Virginia with respect to these 3 variables. Typically, a valid business interest is considered the extent to which a non-compete agreement protects the employer from poaching existing customers, trade secrets, or other confidential information.

Non-Compete Agreements Should be Narrow

Keeping in mind that these types of non-compete agreements must be drafted narrowly, courts in Virginia will not enforce agreements that are overbroad or unreasonable. Some pitfalls in non-compete agreements include the following: (1) agreements that impose overbroad geographical limitations (i.e. a prohibition on competing in the United States where the service area is only a portion of Virginia); (2) unreasonable time constraints (i.e. a 20-year restriction; although each determination is based on the individual facts of a case); (3) agreements prohibiting an employee from working in any capacity for a competitor; (4) agreements whose terms and not clear or discernible; (5) agreements for licensed professionals (physicians, lawyers, etc.) which may be barred on public policy grounds; and (6) agreements that unfairly burden an employee’s ability to obtain alternative employment. The bottom line is that employers should be reasonable in drafting non-compete agreements for employees.

Other potential issues with non-compete agreements exist and it is important for an employer to structure a clear and fair non-compete agreement in order for it to be upheld by the Virginia courts. It is important for an employee to understand their obligations as well. Since July 1, 2020, with a change in law, Virginia has prohibited employers from entering into, enforcing or threatening to enforce non-compete agreements with low wage employees. The definition of low-wage employee changes based on the Commonwealth’s average weekly wage. A good case to review by the Virginia Supreme Court on these issues can be found at this link. Additionally, the federal government may or may not be successful in attempting to further reduce the ability of some employers to use non-compete agreements for employees in the future. As mentioned above, this area of law is in the process of evolving.

Obtain Legal Advice from Virginia Non-Compete Lawyers About Non-Compete Agreements

When negotiating a non-compete agreement or clause or when questions arise as a result of a non-compete agreement it is very important to seek an experienced Virginia employment lawyer. This is best accomplished prior to signing an agreement or when potential violations arise.  Our law firm represents employees and businesses with respect to non-compete agreements. We can be contacted at www.berrylegal.com for legal advice and consultation in such matters.

When an employee has been accused of engaging in workplace misconduct, an employer will sometimes conduct an administrative or internal investigation. Some reasons why employers investigate employees include discrimination complaints, threats against others, safety problems, whistleblower allegations and workplace theft. This article focuses on workplace investigations for Virginia employees. We represent Virginia employees in all types of workplace investigations and employment law matters.

Importance of Workplace Investigations

When serious allegations arise in the Virginia workplace, it is very important for an employer to retain a neutral and knowledgable investigator. This is especially so with respect to sexual harassment allegations, where such employer action can be required. Employers are faced with numerous legal risks if they do not conduct an investigation or otherwise fail to adequately investigate the behavior of their employees. For instance, in addition to sexual harassment and discrimination claims, other claims for negligent hiring and retention are being brought in larger numbers. Additionally, a workplace investigation may involve a whistleblower complaint and must be addressed. As a result, employers conduct investigations far more regularly in Virginia than they have in the past.

Purpose of Workplace Investigations

The purpose of workplace investigations is for an employer to gather relevant evidence. The do so to determine the validity of the complaint. If it is based on an employee’s alleged misconduct, the purpose is to determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination or significant suspension) within the requirements established by law, policy, or regulation or with respect to the employer’s own liability. Occasionally, these types of investigations can lead to a potential criminal investigation. Depending on whether the employer is federal, public sector or a private employer, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue.

Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct. Additionally, an investigation can result in various consequences, such as termination, suspension or loss of a security clearance, where applicable. The purpose in an employment discrimination investigation is to determine whether or not the allegations are credible.

Hiring an Investigator

Once a workplace investigation is required, the next step is for the employer to identify who will conduct the investigation as the investigator. Government employers generally have their own investigators (e.g. Office of Inspector General) and merely assign one or two investigators to a case to evaluate the conduct of employees. However, in the private sector (which covers the vast majority of employees) an investigator must be hired to conduct the investigation. This task is often completed by hiring a law firm and designating an attorney to conduct the administrative investigation. Many law firms conduct these types of investigations. Our firm typically only represents employees in investigations where the employer seeks to question them. There are numerous other law firms that represent employers in these matters. When being interviewed by an employer’s lawyer it is critical to have your own attorney.

Employee Duty to Cooperate

During an investigation, an investigator (i.e. the law firm) will be hired to conduct a workplace investigation. They will review documents (e.g. complaints, emails, documents) related to the investigation and interview witnesses. Depending on the breadth of the investigation, it can involve interviews of numerous employees. Employees, depending on their particular employer, may have a duty to fully cooperate with an assigned investigator. They may also be able to decline to participate in the investigation unless they are ordered to participate. For example, some Virginia employees may decline to participate in an administrative investigation if it is voluntary. The investigator may also order a complete search of the employee’s computer and work emails.

Refusing to cooperate with an investigation or providing false statements or answers during an investigation can be grounds for disciplinary action. Providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties. For private sector employees in Virginia, not cooperating in an employment investigation can lead to disciplinary action or termination in some cases.

Employer Risks in Not Conducting Investigations

Internal or administrative investigations can also involve risks for the employer. If claims are made by employees, inadequate workplace investigations may raise questions regarding the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety. Additionally, as mentioned above, if an investigation is not undertaken an employer can be potentially liable for their negligence of complicity in not addressing the workplace issues.

Consider Legal Advice and Representation

Prior to providing information to an employer, depending on the severity of the issues under investigation, it can be important for an employee to discuss with an attorney the issues involved. It is important to determine the scope of the investigation and what legal issues may come into play for the employee. Keep in mind that an investigation being conducted by a private employer’s lawyer is likely looking for misconduct. The employer generally is not looking for reasons to exonerate the employee. An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney, in many circumstances, can often accompany the employee during any investigative interviews.

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We are often asked about reasonable accommodations by employees in Virginia when they develop a medical condition that requires a change in
their duties or other adjustments. We advise private, federal, state and county sector employees in Virginia this regard. The reasonable accommodation process applies to both employees and job applicants in all states including the Commonwealth of Virginia.

What is a Reasonable Accommodation?

The usual first question that comes up is what is a reasonable accommodation?  A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite a disability. Most employees are covered under the Americans with Disabilities Act (ADA) which covers reasonable accommodations. Federal employees are covered under the Rehabilitation Act which is very similar to the ADA. According to these laws, employers are required to engage in the reasonable accommodation process to qualified employees unless it would create an undue hardship for them. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce reasonable accommodation matters.

In the Commonwealth of Virginia, employees are also covered under the Virginians with Disabilities Act which applies to all employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable a qualified employee with a disability the opportunity to enjoy an equal opportunity in employment.

How Does an Individual Request a Reasonable Accommodation?

A request for reasonable accommodation can be formal or informal. Some employers have created specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and their immediate supervisor. The most typical reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or Human Resources department, depending on the employer and asking for one. Once requested, there is usually a discussion about the reasonable accommodation requested.

The Interactive Process

The reasonable accommodation discussion between an employer and employee is often called the “interactive process” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. The interactive process does not mean that an employer has to grant every accommodation sought, or even the specific one requested. The employer is required to give a reasonable effort at resolving the reasonable accommodation at issue.

Examples of Reasonable Accommodations

The following are some examples of reasonable accommodation requests. There are far too many to list, but the following are examples.

Example A: An employee develops carpal tunnel syndrome and needs a new keyboard because their current keyboard is aggravating their condition. A request for a new keyboard is a request for a reasonable accommodation.

Example B: An employee is undergoing medical treatment in the morning for epilepsy. He informs his supervisor that he needs an adjustment in his starting time so that he can take his medication in the morning before starting work. This is a request for a reasonable accommodation.

Example C: An employee develops a heart condition and needs to take daily breaks at a certain time in order to take their medication. A request to take breaks in order to take medication is a reasonable accommodation.

Example D: An employee develops a disability that causes them to be unable to perform the duties of their position. An employee’s request for reassignment is a request for reasonable accommodation.

There are far too many examples of reasonable accommodations to list here, as they vary based on an employee’s specific medical condition and needs.  Additional examples of reasonable accommodations for specific conditions can be found here.

Conclusion

When a Virginia employee is in need of a reasonable accommodation, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Thoughts on Wrongful Termination

We represent employees in Virginia and the greater Washington, D.C. area when they are wrongfully terminated from their employment. We represent individuals in wrongful termination cases when an employer terminates a person for some illegal or inappropriate reason. Many issues come into play when an employee is terminated. These types of employment issues are compounded by anxiety, fears, financial concerns and other strong emotions. It is very important for an employee to attempt to handle being terminated the right way because of issues that may arise later.

Five Tips in Wrongful Termination Cases

Here are five tips for Virginia employees to consider should they face termination.

1. Handle Termination Professionally

As difficult as this can be, an employee should handle their termination without drama. This is usually one of the most difficult things for an employee to do. However, if an individual handles this poorly, it can cause major issues for them later on. Individuals who cannot hold their emotions in check often end up much worse than those that quietly gather their belongings. In the worst case, if an individual makes a scene when they are fired, the employer may exaggerate the issue and call the police. Furthermore, leaving in a pleasant manner makes it much easier to settle a wrongful termination case later should the individual consider taking that step. Doing so also reduces the possibility that an employer will challenge a former employee’s attempt to obtain unemployment compensation or cause a problem if the individual later applies for a security clearance or another position.

2. Don’t Take Employer Materials or Property

Individuals should be very careful when leaving employment not to take proprietary employer materials, physical items, data or other employer documents without permission. We commonly see this issue arise when an individual is wrongly terminated, but the employer later claims as a defense that the employee “took” or “stole” materials or proprietary data from an employer. Most of these type of allegations relate to an attempt by the employee to take digital materials with them on their last day, but there are many different types of potential scenarios that can arise.

3. Try to Maintain a Reference for Future Employment

When an employee is fired, the usual next step is for them to find new employment. Even if a prior supervisor will not serve as a reference due to the termination, an individual should see if former supervisors (perhaps those no longer employed by the former employer) or others still employed at the employer will serve as a reference. Having a reference for the period of time worked at the former employment will vastly improve one’s chances of obtaining a new position. Even if an individual has been fired, having someone available who can speak to the former employee’s work/performance ability can go a long way towards mitigating the damage of the termination.

4. Don’t Sign an Agreement While Being Terminated

In many cases, employers will try to limit their liability for wrongful termination by presenting potential agreements to employees they are firing on the day of termination. Such agreements might offer a short amount of pay (1-2 weeks) in exchange for extinguishing all of the employee’s rights. Before signing such an agreement it is important to have an attorney review it. Many former employees come to us after they have signed such agreements which makes it very difficult to take any action on their behalf later.

5. Consult with an Attorney about the Termination

Not every firing involves a wrongful termination. However, if an employee believes that they were terminated wrongfully or illegally and are concerned with their rights they should seek legal advice and do so in a timely manner. Many employment rights are time sensitive so they should be evaluated immediately, if at all.

In the majority of employment termination cases that we see, individuals are able to move forward with their career after termination with good planning and preparation. The odds of doing so quickly increase when a termination is handled properly by the former employee.

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We advise and defend Virginia employees against wrongful termination. If you need legal assistance in an employment matter in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

Our law firm represents Virginia state employees in their employment grievances filed against their individual state agencies.  Virginia has adopted an employee grievance procedure for Virginia employees to resolve their employment issues.  The Virginia Grievance Procedure has a number of steps in this process. The grievance process is administered by the Virginia Department of Human Resource Management, Division of Employment Dispute Resolution (EDR).

Starting the Grievance Process

The first step in the grievance procedure for a Virginia state employee is to prepare a written grievance over the employment problem at issue.  The employee involved must usually file a written grievance within 30 days of the date that an employee knew or should have known about the issue being grieved. This is very important. If a grievance is not filed in a timely manner, the grievance will likely be dismissed. The grievance must be submitted on what is known as Grievance Form A. If there is not enough space on Grievance Form A, attachments may be used in filing the grievance.  The first step of the grievance process is generally filed with the employee’s immediate supervisor.

The Grievance Procedure Steps

The grievance process, once initiated, generally goes through 3 separate steps in Virginia.  First, there is a First Step grievance conducted by the employee’s immediate supervisor.  If the matter is unresolved, it may proceed to a Second Resolution Step Meeting.  As opposed to the First Step, a meeting is required during the Second Step.  The Second Step is usually considered a fact finding session.  If the Second Step does not resolve the grievance, the employee may then take their grievance to the Third Step.  If the Third Step does not resolve the grievance and an employee wishes to take their grievance forward, he or she must then ask that their grievance certified for a hearing by the agency head.

In some cases, where a grievance involves a demotion, suspension without pay or any other action that results in an actual loss of wages, the employee may be able to elect the Expedited Process for grievance review.  This Expedited Process generally starts at the Second Step procedures and is reduced to a single step.  Dismissals due to formal discipline or unsatisfactory job performance usually will not go through the grievance steps, but rather proceed to the Grievance Hearing Process.

The Grievance Hearing Process

Grievances not resolved in the grievance process may or may not next move to the Grievance Hearing Process.  Please note that not all grievances are eligible for a grievance hearing.  Cases involving formal disciplinary (a written notice) actions and dismissals for unsatisfactory performance usually qualify for the hearing stage.  Other types of grievances involving adverse employment actions may also qualify for a hearing.  These can include: (1) unfair application of state/agency policies; (2) discrimination; (3) arbitrary or capricious performance evaluation; (4) retaliation for participation in the grievance process; and (5) other types of informal discipline (i.e. transfers, assignments, demotions and suspensions that are not accompanied by a formal notice by taken for disciplinary reasons).  If a grievance is deemed by an agency head not
to be eligible for a hearing, the employee may appeal that decision to EDR.

The Grievance Hearing Process consists of the appointment of a Hearing Officer, a pre-hearing conference and the formal hearing, in addition to other procedures.  During the hearing, documents will be introduced as exhibits and witnesses will be examined and cross-examined. If the grievance involves a disciplinary matter, then a state agency must prove their case by a preponderance (51%) of the evidence presented.  Following the hearing, the Hearing Officer will provide a decision in writing.  The Hearing Officer may uphold or deny the grievance.

Court Review

If the Hearing Officer rules against a party, that party can then appeal the adverse decision to the EDR or to the Virginia Department of Human Resources Management (DHRM), depending on the issue to be appealed before it is considered final.  Once the hearing decision becomes final, a party can then appeal an adverse determination to Circuit Court and from there to the Court of Appeals.  A petition can also be filed requiring implementation of the final hearing decision.

Conclusion

When a Virginia state employee files an employment grievance, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in in their state employment grievances. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Several Virginia employees have come to us to discuss the reasonable accommodation process when they develop a medical condition or disability that requires a change in their duties or other workplace adjustments in order for them to continue their employment. Our law firm represents private, federal, state, and county sector employees throughout the Commonwealth of Virginia in reasonable accommodation cases.

What are Reasonable Accommodations?

A reasonable accommodation is an employee’s request to change their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite having a disability or serious medical condition. Of note, the reasonable accommodation process applies to both employees and job applicants in all states, including the Commonwealth of Virginia.

Under federal law, the Americans with Disabilities Act (ADA), which applies to most employees, encompasses and outlines reasonable accommodations. Federal employees are also covered under the Rehabilitation Act, which incorporates similar protections as the ADA for these types of employees. According to these laws, employers are required to engage in the reasonable accommodation process for qualified employees unless it would create an undue hardship for them.

In Virginia, many employees are also covered under the Virginians with Disabilities Act, which applies to most employers. Under both federal and state laws, the ultimate goal of the reasonable accommodation process is to enable employees with disabilities the opportunity to enjoy an equal opportunity in employment. The Equal Employment Opportunity Commission (EEOC) provides guidelines for reasonable accommodation requests.

How to Request a Reasonable Accommodation

The most usual type of reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Typically, the employee will then ask for a reasonable accommodation by approaching their supervisor or HR department, depending on the employer, and asking for one. A request for reasonable accommodation can be either formal or informal. For instance, depending on the employer, some have created specific forms covering reasonable accommodation requests which must be completed; whereas, other employers simply allow informal verbal discussions between the employee and their immediate supervisor in an effort to resolve the issue.

Regardless of form, once requested, there is typically a discussion/meeting about the reasonable accommodation requested. The discussion between an employer and employee is referred to as the “interactive process,” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. This process does not mean that an employer has to grant every accommodation sought (or even the specific one requested by the employee); rather, the employer is only required to make a good faith effort to accommodate a disabled employee.

How to Find Examples of Reasonable Accommodations

There are far too many examples of reasonable accommodations to list here as they significantly vary based on an employee’s specific disability and their particular needs. However, the Job Accommodation Network (JAN) provides examples of reasonable accommodations regarding specific medical conditions. For example, JAN provides specific examples of potential accommodations for those facing back impairments which can be found here or for depression that can be found here.  In all, JAN provides reasonable accommodation ideas for approximately 96 types of disabilities and medical conditions.

Conclusion

When an employee in the Commonwealth of Virginia needs to request a reasonable accommodation due to a medical condition, it is important to obtain legal advice and/or legal representation. Our law firm is ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. Should you need assistance in this process, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.

The following is an article on leave laws and rules that cover Virginia employees. Leave issues generally tend to come up either during the course of an employee’s employment or immediately following the end of an individual’s employment. Leave laws and regulations also vary by the type of employer and jurisdiction of the employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave.

Virginia has not enacted laws regarding many areas of employee leave as of yet, but that may be changing as other states enact improvements. Virginia is a state where most forms of employee leave are not mandatory on employers, but can become so if policies and practices are adopted by employers.  I also suspect that there will be additional changes in the future as Northern Virginia grows larger and adds more employers. Some jurisdictions, like the District of Columbia have moved towards expanded paid leave. Fortunately, for most Virginia employees, many forms of leave, while not mandatory are typically provided by employers in order for them to stay competitive in keeping key employees.

I will go through the major types of employee leave in Virginia below:

Vacation Leave / Annual Leave

Except for those situations involving medical issues, the most important form of leave involves annual or vacation leave.  In Virginia, private sector employers are not required by law to provide employees with vacation / annual leave, either in a paid or unpaid status. This surprises many employees. Additionally, the rules regarding this type of leave are different for federal, state and county employees in Virginia.

For example, federal employees accrue a certain amount of annual or vacation leave each pay period and can then use this leave for vacation time or taking time off. When a federal employee leaves the federal government, they are then paid out for the remaining balance of annual leave that they have not used.

While providing or paying out accrued vacation or annual leave has not been mandated for private sector employers in this state, if it is pursuant to a consistent employer practice or policy, the employer in Virginia may be required to pay such leave out to departing employees.

Sick Leave

In the Commonwealth of Virginia, there is also no state requirement that employers provide employees with sick leave benefits. Virginia is different in this respect when compared to many other states. For example, 7 states (Arizona, Connecticut, California, Oregon, Massachusetts, Arizona and Washington) and the District of Columbia have enacted state laws to require some form of paid sick leave.  It is likely that such laws will eventually make it to Virginia.

That said, if an employer decides to provide sick leave to employees in Virginia, it must follow their established policy. There are some other important considerations on sick leave. First, federal, state and county employees are generally given sick leave in increments. Additionally, pursuant to federal law, private sector employees of larger Virginia companies (more than 50 employees) are entitled to sick leave when given under the Family Medical Leave Act (FMLA). Under the FMLA, private sector employees in Virginia may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies.

This type of FMLA leave renews every 12 months as long as the employee continues to meet the eligibility requirements set out above. Employees may also take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.

Administrative Leave

Administrative leave is a form of temporary leave from duties, with pay and employee benefits left intact. There is no entitlement to administrative leave for employees in Virginia, but it can and is often granted. Typically, this type of leave is granted for reasons related to misconduct, internal investigations, equal employment opportunity investigations or other miscellaneous issues that arise. Federal, state and county employees have their own unique policies for administrative leave, which vary.  In large part, administrative leave is used to pay an employee when they are being kept out of the workplace during the course of a disciplinary investigation.

Holiday Leave in Virginia

Additionally, the Commonwealth of Virginia does not require private employers to provide employees with either paid or unpaid holiday leave. A Virginia employer does not have to pay an employee premium or other enhanced pays for working on a holiday. Again, different standards apply for federal, county and state employees, depending on position (e.g. firefighter), who may receive holiday pay for their work and/or different types of premium pay. The good news is that most private sector employers voluntarily observe a paid holiday schedule.

Leave Without Pay in Virginia

Leave without pay is another type of leave available in Virginia, but not mandated by state law. LWOP, as it is called, takes the form of reduced hours or in taking an unpaid day off. LWOP could be used for intermittent FMLA, personal, sick or vacation time off. The employee receiving LWOP will not be compensated for this unpaid form of leave.

Military Leave in Virginia

Military leave is available to most Virginia employees.  Leave to participate in military service is not covered under Virginia law, but under federal law.  The Uniformed Services Employment and Reemployment Rights Act (USERRA).  USERRA requires that employers permit the return of an employee who is a uniformed service member to their position after they return from military service or training.

Voter Leave in Virginia

At present, an employer in Virginia is not required to give leave for an employee to vote. However, Virginia does require an employer to accommodate an employee who has been appointed as an election official in the Commonwealth of Virginia. Some federal and other public employees have policies of permitting leave for voting where necessary.

Jury Duty Leave In Virginia

An employer is not required to provide leave for jury duty in Virginia, but cannot discharge or retaliate against the employee if they have given reasonable notice to their employer of a jury obligation. Additionally, an employer may not charge a private sector employee vacation or annual leave for jury duty service. An employer that violates these provisions is guilty of a misdemeanor (VA Code. §18.2-465.1).

VA Code 18.2-464.1 provides, in part: “Any person who is summoned to serve on jury duty or any person, except a defendant in a criminal case, who is summoned or subpoenaed to appear in any court of law or equity when a case is to be heard or who, having appeared, is required in writing by the court to appear at any future hearing, shall neither be discharged from employment, nor have any adverse personnel action taken against him, nor shall he be required to use sick leave or vacation time, as a result of his absence from employment due to such jury duty or court appearance, upon giving reasonable notice to his employer of such court appearance or summons.”

Conclusion

If you need assistance with an employment issue or resolving a matter with an employer regarding leave issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook.