4.10 Employee Rights and Employer Responsibilities Under the Vda

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

4.10 EMPLOYEE RIGHTS AND EMPLOYER RESPONSIBILITIES UNDER THE VDA

4.1001 Conduct Prohibited. The VDA prohibits an employer from discriminating against an otherwise qualified person with a disability in employment or promotion practices solely because of the disability. ³⁰³ However, this prohibition does not prevent an employer from taking an adverse personnel action against a disabled applicant or employee if that person cannot adequately perform the duties of the job or cannot perform the duties in a way that does not endanger his or her health or safety or the health or safety of others. An employer cannot be held liable for refusing to hire a disabled person or for taking any adverse personnel action against a disabled person if the

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disability renders that person incapable of performing the tasks necessary for the particular position. ³⁰⁴

The VDA also specifically provides that "[n]o employer who has hired any person because of the requirements of this [law] shall be liable for any alleged negligence in such hiring." ³⁰⁵

4.1002 Definitions.

A. "Otherwise Qualified Person with a Disability." The term "otherwise qualified person with a disability" refers to a person with a disability who is qualified to perform the duties of a particular job and whose disability is unrelated to the person's ability to perform the job or to his or her qualification for employment or promotion. ³⁰⁶ The term "person with a disability" refers to a person who has a physical or mental impairment that substantially limits one or more major life activities or has a record of such impairment.

There is a significant difference between these definitions and the one adopted by Congress in the Americans with Disabilities Act (ADA). ³⁰⁷ Both statutes provide that a person is disabled if he or she has an impairment that substantially limits a major life activity, and both state that a person is disabled if he or she has a record of impairment. But the ADA goes on to say that a person is also disabled if he or she is perceived as having an impairment, while the Virginia statute does not.

B. "Physical Impairment" and "Mental Impairment." The term "physical impairment" refers to any physical condition, anatomic loss, or cosmetic disfigurement that is caused by bodily injury, birth defect, or illness. ³⁰⁸

The term "mental impairment" refers to

a disability attributable to intellectual disability, autism, or any other neurologically handicapping condition

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closely related to intellectual disability and requiring treatment similar to that required by individuals with intellectual disability; or . . . an organic or mental impairment that has substantial adverse effects on an individual's cognitive or volitional functions, including central nervous system disorders or significant discrepancies among mental functions of an individual. ³⁰⁹

Case law interpreting the substantive provisions of the VDA is scarce...