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2020 Virginia Legislative Update

May 20, 2020  |  Brian J. McNamara, Of Counsel

Last year was an election year for all seats in the General Assembly, and it resulted in a significant power shift. Republicans had controlled both houses of the General Assembly since 2015, and at least one house of the legislature or the Governorship every year since 1994. The 2019 elections saw Democrats gain control of the General Assembly, and the party already held all of the statewide elected offices (Governor, Lt. Governor and Attorney General). As anticipated, this resulted in an active legislative session in which the vast majority of workers’ compensation bills that passed substantially favor the interests of injured workers over those of employers and insurers.

In addition, the Joint Legislative Audit and Review Commission (JLARC) released a voluminous report on its study of three issues:

  1. whether workers’ compensation claims are processed promptly and fairly;
  2. whether measures in place to minimize fraud and abuse in the system were working; and
  3. whether the disease presumption statutes are appropriate, including a review of the level of evidence required to prove or rebut a “presumption” claim.

JLARC’s report also made several “general” findings, some of which appeared to be outside the scope of the committee’s directive, and sympathetic to the viewpoint of claimants. The Committee’s general findings were:

  • Claims are processed promptly and fairly at the VWC.
  • One major challenge identified to prompt and fair claims processing was delay by employers in making compensability determinations
  • Virginia was in the minority of states that did not have a statutory time limit for employers to make such determinations.
  • Workers in Virginia were considered not to be well informed about their rights under the Workers’ Compensation Act.
  • Virginia is the only state without a remedy for cumulative trauma injuries. The report dismissed “stakeholder” concerns about costs by noting that cumulative trauma injuries are “not a major cost driver of workers’ compensation premiums in other states.”
  • Recommended that the General Assembly fund a study to consider adding cumulative trauma injuries to the Act.

Regarding the cancer and heart/lung presumptions that were the central topic of JLARC’s review, the Committee made the following findings:

  • Found that the cancer presumption was supported by the best available scientific evidence.
  • Found the requirements that one prove specific exposure to a carcinogen, and that the carcinogen to which one was exposed was one known or suspected to cause the type of cancer claimed to be unfairly burdensome to claimants.
  • Found the requirement that one prove the condition caused disability was not relevant to whether the employment caused the disease.
  • The “time of service” requirement of 12 years was viewed as too long.
  • Brain, colon, and testicular cancers were also considered as options that could be included in the cancer presumption statute.
  • The Heart/Lung presumption statute was found to be difficult, but not impossible to rebut by employers.
  • It was noted that employers successfully rebutted 23 percent of claims between 2009 and 2018, a rebuttal rate the Committee deemed to be appropriate.
  • The Committee did mention the option of adding a “service time” requirement to the Heart/Lung presumption, but left it as a policy option rather than a legislative recommendation.

I. PASSED LEGISLATION – effective July 1, 2020

A. HB 46 – Workers’ Compensation; employer to notify employee of intent – this bill creates a new required report to which employers must respond within 30 days of the filing of a new original claim for benefits. It seems likely that for new claims, this report will take the place of the Commission’s 20-day order. As it is a “required report” under the Act, failure to make a response in a timely fashion can be punished with a fine, rather than undergoing the more cumbersome Show Cause process. Fines are up to $500.00 unless the failure to make a timely report is deemed willful, in which case the maximum fine is $5,000.00.

  • Requires employers to respond to the filing of all claims for benefits within 30 days with notice of its intention to accept or deny a claim, or to state that it is unable to make a determination because it lacks sufficient information.
  • If additional information is needed, the information sought must be identified in the notice.

B. HB 169/SB 345 – Workers’ Compensation; occupational disease presumption; correctional officers/DMV enforcement officers.

  • Adds correctional officers and full-time sworn members of the enforcement division of DMV to the list of occupations covered by the infectious disease presumption statute §65.2-402.1.

C. HB 438/SB 561 – Workers’ Compensation; post-traumatic stress disorder, law enforcement officers and firefighters.

  • Creates Va. Code §65.2-107 (new section).
  • Creates a new presumption for PTSD as a compensable occupational disease without accompanying physical injury, upon the occurrence of certain “qualifying events” such as:
      • Witnessing serious injury or death of any person;
      • Witnessing injury, death, abuse or exploitation of a minor;
      • Situations involving the immediate threat to the claimant’s life or the life of another; mass casualty events; or
      • “Responding to crime scenes for investigation.”
  • Requires diagnosis by mental health professional.
  • Event must have occurred in the line of duty.
  • If a firefighter claimant, must have complied with OSHA standards.
  • Qualifying event must be a “substantial factor” in causing the PTSD.
  • The event (rather than another source of stress) must be the primary cause of the PTSD.
  • PTSD not compensable if it results from:
      • Disciplinary action,
      • Negative evaluation,
      • Demotion,
      • Transfer,
      • Layoff,
      • Promotion,
      • Termination,
      • Retirement, or similar actions.
  • 52-week maximum aggregate recovery of TTD and TPD from this statute, and a claimant can only collect TTD or TPD within 4 years of the date of diagnosis.
  • Several specific provisions imposed on employers of law enforcement officers and firefighters including policies to be adopted on mental health access, peer-support, and training for resilience and self-care.
  • This bill was sent back by the Governor with proposed amendments, adding language to require the state Department of Criminal Justice Services and Department of Fire Programs to incorporate the training requirements into their regulations. The General Assembly adopted these amendments during the veto session.

D. HB 617 – Workers’ Compensation; repetitive motion injuries.

  • Directs the Commission to engage an independent and reputable national search organization to examine the implications of covering workers injuries caused by repetitive motion under the Act.
  • Directly in line with JLARC recommendations – expect to see a bill proposing that repetitive motion injuries become compensable as soon as next year.

E. HB 783/SB 9 – Presumption as to death or disability from respiratory disease, hypertension or heart disease, cancer.

  • Added colon, brain, and testicular cancer to diseases that are covered by the presumption found in §65.2-402.
  • Removed the requirement that the claimant show contact with a “toxic substance” in the line of duty.
  • Reduced the “service time” requirements from 12 years to 5 years for the cancer presumption.
  • Added a 5 year “service time” requirement for Heart/Lung presumption claims.

F. HB 1558 – Workers’ Compensation – Ombudsman program created.

  • Authorizes the Commission to create an ombudsman program and appoint an ombudsman to administer such a program.
  • The program’s purpose will be to provide neutral educational information and assistance to unrepresented claimants and employers.

G. HR 38/SB 14 – Workers’ Compensation – nominating a person to be elected to the Virginia Workers’ Compensation Commission.

  • Commissioner Rapaport was elected to a six-year term beginning February 1, 2020.

H. SB 804 – Employees providing domestic service; definitions, report.

  • Removes domestic employees from a category of employees who were exempt from the Virginia Minimum Wage Act.
  • Requires the Secretary of Commerce and Trade to convene a work group including representatives from the Department of Labor and Industry; the Virginia Employment Commission, and the Virginia Workers’ Compensation Commission, to make recommendations including legislative or regulatory changes to protect domestic employees from abuse and harassment, and providing remedies for the nonpayment of wages, unemployment benefits, and benefits for work-related injuries.
  • This seems to forecast domestic servants being classified as employees, which would only be relevant for households that maintain three or more employees “regularly” in service. However, since “regularly” does not mean “full time,” a household that regularly engaged a gardener, a nanny and a cleaning person could become an “employer” if legislation is not carefully crafted.

II. NOTABLE FAILED BILLS

It is informative to examine relevant failed legislation because bills that fail in one session often return the following year. Further, political parties emboldened by their successes in recent elections often seek to maximize the opportunity to increase their reach. As such, bills that might have been viewed as a step too far this year may indeed become “mainstream” legislation in 2021.

A. HB 45 – Workers’ Compensation – retaliatory discharge of employee.

  • Would have expanded the “retaliatory discharge” provision in §65.2-308 from punishing discharge based solely on the fact that an employee has or intends to file a claim under the Workers’ Compensation Act, to punishing discharge “motivated to any extent by knowledge or belief that an employee has or intends to file a claim.”
  • This bill was defeated in Committee in a very close vote: Expect this bill to return next year. It has been proposed yearly for at least five years, but never before gained significant traction.

B. HB 47 – Foreign Injuries.

  • This bill would have provided coverage in Virginia for injuries that occurred outside of Virginia where:
      • the employment contract is not for services to be performed exclusively outside of Virginia; and either
      • the employer’s primary place of business is in Virginia; or
      • the employee regularly performs work on the employer’s behalf in Virginia and resides in Virginia.
  • Left in committee for the second straight year.

C. HB 53/649/1542 – presumption of coverage for certain diseases.

  • HB 53 would have added emergency medical technicians to the list of employees eligible to claim the Heart/Lung presumptions, but only those employed by the City of Virginia Beach.
  • HB 649 would have added police dispatchers as eligible employees for the Heart/Lung presumption.
  • HB 1542 would have added DMV officers as eligible employees for the Heart/Lung presumption.

D. HB 1543 – Workers’ Compensation – inmates as employees.

  • Would have required that inmates working prison jobs be paid at the state Minimum Wage.
  • Would have afforded them coverage under the Virginia Workers’ Compensation Act as employees.
  • The bill was held over until 2021 in Committee.

III. NOTABLE NON-WORKERS’ COMPENSATION LEGISLATION PASSED IN 2020

A. HB 984 – Misclassification of workers.

  • Created §40.1-28.7:7 which provides that employers who fail to properly certify workers as employees are subject to civil suit for damages, including any wages, salary, or costs incurred for expenses that would otherwise have been covered by insurance had the worker been properly classified. In that suit, anyone who works for pay is presumed to be an employee unless it is established that the individual is an independent contractor as defined under IRS guidelines.
  • This statute seems very likely to have impact in the law of workers’ compensation, making it much more difficult to prove an independent contractor relationship, rather than an employer-employee relationship.

B. HJ 130/SJ 67 – Cannabis and Medical Cannabis; JLARC to study options for the regulation of adult use.

  • Directed JLARC to study options for regulations and legislation for either legal use of marijuana or medical-only legal use of marijuana.
  • Taken together, these last two bills suggest a likely future in which marijuana is freely prescribed for medical conditions under state law, while still illegal under federal law. This could present a significant dilemma for carriers who could face criminal charges for issuing electronic payment across state lines to purchase substances considered controlled substances by the federal government.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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