By VRSA Managing Director Steve Craig
The 2020 General Assembly session resulted in a number of changes to Virginia law of interest to local political subdivisions from a risk management standpoint. The changes are effective July 1 unless otherwise noted. From a cost standpoint, the most significant change may be the expanded cancer presumption, which will now be virtually unrebuttable, and expanded post-traumatic stress disorder (PTSD) benefits for public safety.
While workers’ compensation costs will increase as a result, the bigger potential issue is the impact on resulting Line of Duty Act (LODA) costs. For all employers, several employee protection laws were effective on July 1, and you should carefully review your policies and procedures to ensure your organization complies.
A second session is planned for later this summer where other legislation of risk management interest will likely be considered. These include:
- A workers’ compensation pandemic presumption for certain employees (public safety, teachers, others?);
- The elimination of qualified immunity for law enforcement personnel; and
- Granting school divisions immunity protection for claims arising out of COVID-19.
HB 783/SB 9 expands the public safety cancer presumption by adding colon, brain and testes cancers, removes exposure proof requirement and reduces the employment eligibility requirement from 12 to 5 years.
HB 438/SB 561 provides that post-traumatic stress disorder incurred by a law-enforcement officer or firefighter is compensable under the Virginia Workers’ Compensation Act if a mental health professional examines a law-enforcement officer or firefighter and diagnoses the individual as suffering from post-traumatic stress disorder as a result of the individual’s undergoing a qualifying event, defined as an incident or exposure occurring in the line of duty on or after July 1, 2020, (i) resulting in serious bodily injury or death to any person or persons; (ii) involving a minor who has been injured, killed, abused, or exploited; (iii) involving an immediate threat to life of the claimant or another individual; (iv) involving mass casualties; or (v) responding to crime scenes for investigation.
Other conditions for compensability include (a) if the post-traumatic stress disorder resulted from the law-enforcement officer or firefighter acting in the line of duty and, in the case of a firefighter, such firefighter complied with certain federal Occupational Safety and Health Act standards; (b) if the law-enforcement officer’s or firefighter’s undergoing of a qualifying event was a substantial factor in causing his post-traumatic stress disorder; (c) if such qualifying event, and not another event or source of stress, was the primary cause of the post-traumatic stress disorder; and (d) if the post-traumatic stress disorder did not result from any disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action of the officer or firefighter. The measure also establishes requirements for resilience and self-care technique training.
SB 868 prohibits discrimination in public and private employment, credit and housing on the basis of sexual orientation or gender identity. The bill also codifies for state and local government employment the current prohibitions on discrimination in employment on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, or status as a veteran.
HB 145/SB 161 requires the Department of Education to develop and make available to each school board, no later than December 31, 2020, model policies concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures, and standards relating to (i) compliance with applicable nondiscrimination laws; (ii) maintenance of a safe and supportive learning environment free from discrimination and harassment for all students; (iii) prevention of and response to bullying and harassment; (iv) maintenance of student records; (v) identification of students; (vi) protection of student privacy and the confidentiality of sensitive information; (vii) enforcement of sex-based dress codes; and (viii) student participation in sex-specific school activities and events, excluding athletics, and use of school facilities. The bill requires each school board to adopt, no later than the beginning of the 2021-2022 school year, policies that are consistent with but may be more comprehensive than such model policies developed by the Department of Education.
HB 827/SB 712 requires employers with five or more employees to “make reasonable accommodation to the known limitations of a person related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.” The law further prohibits employers from retaliating against employees for requesting or using a reasonable accommodation for pregnancy or related conditions. Employers must post information about “(i) the prohibition against unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions and (ii) an employee’s rights to reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions.” This information must be included in any employee handbook and directly provided to new employees upon the commencement of their employment and to any employee within 20 days of the employee providing notice to her employer that she is pregnant. Employees aggrieved under the law may bring an action within two years of the alleged violation and may be awarded compensatory damages, back pay, reasonable attorney fees and costs, and other injunctive relief.
Employee/Independent Contractor Misclassification
HB 984/SB 894 creates a private right of action for workers who claim to have been misclassified as an independent contractor. The new law creates a presumption that “an individual who performs services for a person for remuneration” is that person’s employee. The presumption may be rebutted if the putative employer shows that the individual is an independent contractor under the guidelines of the Internal Revenue Service (“IRS”). An employee who has been misclassified may be awarded “damages in the amount of any wages, salary, employment benefits, including expenses incurred by the employee that would otherwise have been covered by insurance, or other compensation lost to the individual, a reasonable attorney fee, and the costs incurred by the individual in bringing the action.”
HB 1407/SB 744 prohibits an employer from classifying an individual as an independent contractor if he is an employee. An individual shall be considered an employee of the party that pays the remuneration for purposes of Titles 40.1 (Labor and Employment), 58.1 (Taxation), 60.2 (Unemployment Compensation), and 65.2 (Workers’ Compensation) unless it is demonstrated that such individual is an independent contractor. The Department of Taxation shall determine whether an individual is an independent contractor by applying Internal Revenue Service guidelines. Violators are subject to civil penalties and debarment from public contracts. The bill has a delayed effective date of January 1, 2021.
HB 1199/SB 662 prohibits an employer from discharging, disciplining, threatening, discriminating against, or penalizing an employee or independent contractor because the employee or independent contractor reported or plans to report that an employer or any officer or agent has failed to properly classify an individual as an employee and failed to pay required benefits or other contributions. The measure also prohibits such actions against an employee or independent contractor who is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry by an appropriate authority or in a court action. These prohibitions apply only if an employee or independent contractor acts in good faith and upon a reasonable belief that the information is accurate. The measure authorizes the Commissioner of Labor and Industry to institute proceedings against an employer who has taken such prohibited retaliatory action. Available remedies include reinstatement of the employee and recovery of lost wages. An employer that violates these provisions is subject to a civil penalty equal to the employee’s lost wages.
HB 622 prohibits an employer from discharging or taking other retaliatory action against an employee because the employee inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation. Violations are subject to a civil penalty of $100.
HB 798 prohibits an employer from discharging, disciplining, threatening, discriminating against, penalizing, or taking other retaliatory action against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee (i) reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official; (ii) is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry; (iii) refuses to engage in a criminal act that would subject the employee to criminal liability; (iv) refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or (v) provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation. A person who alleges a violation of this chapter may bring a civil action seeking injunctive relief, reinstatement, and compensation for lost wages, benefits, and other remuneration.
Sexual Abuse & Molestation
HB 870 provides that for a cause of action accruing on or after July 1, 2020, every action for injury to the person resulting from sexual abuse shall be brought within 10 years after the cause of action accrues. This bill does not change the current 20-year statute of limitations for actions for injury to the person resulting from sexual abuse that occurred during the infancy or incapacity of such person.
HB 421/SB 35 authorizes any locality by ordinance to prohibit the possession or carrying of firearms, ammunition, or components or any combination thereof in (i) any building, or part thereof, owned or used by such locality for governmental purposes; (ii) in any public park owned by the locality; or (iii) in any public street, road, alley, sidewalk or public right-of-way or any other place of whatever nature that is open to the public and is being used by or is adjacent to a permitted event or an event that would otherwise require a permit.