2021 Legislative Update Related to Workers’ Compensation

Due to the power shift from the 2019 elections when the Democrats gained control over the General Assembly, the 2020 legislative session resulted in workers’ compensation bills that largely favored the interests of injured workers over those of employers and insurers. Although the 2020 Special Legislative Session resulted in the temporary defeat of COVID-19 presumption legislation, largely due to the expense to localities and to the Commonwealth, the 2021 Session of the Virginia General Assembly is slated to similarly favor injured workers. Based on the content of the bills introduced thus far, the proposed legislation expands the rights of injured workers in Virginia. Several of these bills were previously introduced in 2020 and failed at that time, although they may have some modifications in content.

The following is a summary of those bills that are proposed during this Session. For the bills to become law, the House of Delegates and the Senate must pass each bill, and the Governor must either take no action on the bill or sign it into law.

1. COVID-19 Presumption Bills (click Bill number to view corresponding sources)

Notably, three bills related to a COVID-19 presumption have been introduced this Session. These bills are less expansive from the COVID-19 presumption legislation that was defeated in the 2020 Special Legislative Session. Specifically, the proposed legislation excludes a presumption for school board employees.

• • • • HB 1985 proposes a presumption to health care providers who are “directly involved in diagnosing and treating persons known or suspected to have COVID-19.” The bill specifies that it can be retroactively applied to January 1, 2020.
      • HB 2207 and a duplicate measure, SB 1342, would provide a presumption to firefighters, law enforcement, EMS personnel, and correctional officers, for a compensable occupational disease under the Act if a claimant receives a positive diagnostic test for COVID-19 after March 12, 2020 but prior to December 31, 2021.
      • SB 1375 provides that COVID-19, causing the death or disability of firefighters and emergency services medical personnel is an occupational disease compensable under the Workers’ Compensation Act. The bill is retroactive to March 1, 2020.

2. HB 2242 / SB 1449 – Prohibition on COVID-19 Immunization Requirement

• • • • Prohibits the State Health Commissioner, the Board of Health, the Board of Behavioral Health and Developmental Services, the Department of Health Professions, and the Department of Social Services from requiring any person to undergo the COVID-19 vaccine and prohibits discrimination based on a person’s vaccine status as to education, employment, insurance, issuance of a driver’s license, and numerous other contexts.

3. HB 2228 – Repetitive Stress Bill

• • • • Proposes that for purposes of the Act, the term, “occupational disease” shall include injuries resulting from repetitive and sustained physical stressors, including repetitive and sustained motions, exertions, posture stress, contact stresses, vibrations, or noise.
      • The claimant must show that the employment primarily caused the injury, considering all causes.
      • The bill does not require that the repetitive motions occur over a particular period; rather, the time period merely must be reasonably identified and documented.
      • This is a continuation of HB 617 from 2020, which directed the Virginia Workers’ Compensation Commission to engage an independent and reputable national research organization to examine the implications of making repetitive stress injuries compensable.
        • • The November 2020 study concluded that although adding repetitive stress injuries would result in a cost increase to the system, repetitive stress injuries would only account for 2.5% of total claim costs.
      • This largely expands current law, which prohibits cumulative and repetitive trauma, except for carpal tunnel and hearing loss under Code § 65.2-40. Presently, the claimant must show that the injury occurred at a reasonably definite time.

4. HB 1754 – Retaliatory Discharge of Employee

• • • • Prohibits an employer or other person from taking retaliatory actions against an employee, “if such action is motivated by the knowledge or belief that the employee has filed a claim or intends to take certain actions under” the Act.
      • Under the current law, a discharge is retaliatory if the employer discharges the employee solely because the employee has taken or intends to take certain actions under the Act.
      • This bill was defeated last year and expectedly has returned this year. The bill has been proposed yearly for almost five years.

5. HB 2032 / SB 1310 – Extension of Coverage to Domestic Service Employees

• • • • Provides that individuals who are engaged in providing domestic service are included in employee protection laws and the Virginia Workers’ Compensation Act.
      • Extends the Virginia Human Rights Act prohibitions on nondiscrimination in employment to employers that employ one or more domestic workers.

6. HB 2134 / SB 1323 – Employee Misclassification

• • • • Provides that in proceedings involving allegations of worker misclassification, an individual is not considered an employee if the person qualifies as an independent contractor relative to the hiring party under the common law right-of-control test as established by the IRS.
      • The bill also provides that a party alleging a frivolous or improper worker misclassification claim may file a motion to dismiss the claim. A contract or written agreement expressly stating the claimant is not an employee is prima facie evidence of a frivolous pleading.
      • Although Code § 40.1-28.7:7, which was passed in the 2020 Session likely increased the difficulty of proving an independent contractor relationship, these bills appear to lessen the impact on employers, particularly with the addition of an employer’s ability to contract for classification of an employee.

7. SB 1351 – Res Judicata

• • • • Provides that an order issued by the Workers’ Compensation Commission awarding or denying benefits shall not bar by res judicata any claim by an employee, or cause a waiver, abandonment, or dismissal of any claim by an employee if the order does not expressly adjudicate the claim.
      • This bill only increases the importance for employers of entering Joint Stipulated Orders with specific language, rather than broad Award Agreement Forms that do not address all pending claims before the Commission.

8. HB 1818 / SB 1275 & HB 2080 – Hypertension or Heart Disease Presumption

• • • • HB 1818 / SB 1275 – Adds salaried or volunteer emergency medical services personnel to the list of persons to whom, after five years of service, the occupational disease presumption for death caused by hypertension or heart disease applies.
      • HB 2080 – Adds full-time, salaried emergency services personnel employed by any locality that has authorized such presumption by ordinance to the list of persons to whom, after five years, the occupational disease presumption applies for death caused by hypertension or heart disease.
      • These bills are also a continuation from several failed bills from the 2020 Session.

Ford Richardson will continue to monitor pending legislation to determine any potential impact for our clients.

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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