Virginia Workers’ Compensation Legislative Alert: Proposed Legislation 2022

Twenty proposed bills related to workers’ compensation are currently pending before the Virginia General Assembly. Read further for summaries of important proposed legislation targeting:

• COLA
• cancer
• anxiety & depression
• testing for controlled substances
• medical mandates
• presumption for healthcare workers
• COVID-19 and presumption
• repetitive injuries
• failure to market
• vaccination
• and more

PROPOSED BILL: SB 181 - COVID-19 Presumption Does not Apply to Anyone Who Fails to or Refuses to Receive Vaccination

This bill amends and expands one of the vaccine defenses to the COVID-19 presumption. Currently, the defense in Va. Code §65.2-402.1(E)(2) applies only to health care provider COVID-19 presumption claims in which the employer offered the vaccine. The proposed legislation removes the requirement that the employer offer the vaccine, and expands the defense to apply to both health care providers and first responders who fail or refuse to receive a COVID-19 vaccine. The bill does not alter the exception for persons who are immunized or whose physician determined in writing that the immunization would pose a significant risk to the person’s health.

PROPOSED BILL: SB 226 – Notice to Employees

This bill requires the employer or insurer to include specific language in a denial letter about the employee’s right to dispute the claim denial.

PROPOSED BILL: SB 289 – Anxiety and Depression Incurred by Law Enforcement Officers and Firefighters

This bill amends Va. Code §65.2-107 to make anxiety and depression compensable for law enforcement officers and firefighters, after a qualifying event has occurred and after diagnosis by a mental health professional. The current statute is limited to PTSD.

See also: HB 742 – Anxiety and Depression Incurred by Law Enforcement Officers and Firefighters

PROPOSED BILL: SB 562 - Statute of Limitations for Cancer Claims

This bill bars claims for occupational cancer diseases under Va. Code §65.2-402 unless a claim is filed within two years of when the diagnosis of the disease is first communicated to the employee or within 10 years from the date of the last injurious exposure in employment, whichever first occurs.

The proposed amendments to this bill bar a claim for cancer under Va. Code §65.2-402 if the employee is 65 years of age or older, regardless of the date of diagnosis, communication, or last injurious exposure in employment.

PROPOSED BILL: SB 677 – Amending the Cost of Living (COLA) Statute

This bill clarifies that claimants who are receiving workers’ compensation benefits but not benefits under the federal Old-Age, Survivors and Disability Insurance program are entitled to COLA benefits.

PROPOSED BILL: HJ 11 – Study on Prohibition on Charging Premiums for Bonus Pay, Vacation and Holidays

This bill requests that the VWC study a prohibition on charging workers’ compensation premiums on bonus pay, vacation time, and holiday time and to consider the economic effect that the prohibition has on the state. The VWC is requested to submit its findings before the 2023 Regular Session.

PROPOSED BILL: HB 22 – Right to be Free from Medical Mandates 

This bill declares that each adult has a right to be free from medical mandates by the Commonwealth, localities, private employers, health care entities or providers, or providers of public accommodations. The bill defines “medical mandates” to include health-related tests, procedures, and bodily injections. The bill would prohibit the conditioning of an individual’s receipt of benefits or services on participating in medical mandates. There are exceptions, such as protocols in health care and food handling facilities.

If passed, this bill may prohibit the use of vaccine defenses to overcome presumption cases for infectious diseases under Va. Code §65.2-402.1. Employers and carriers may also lose their right to an Independent Medical Examination or a Commission-ordered medical examination and may no longer be able to assert a refusal of medical treatment defense. The bill could also limit employers from performing post-accident drug testing, which could affect the employer’s use of a willful misconduct defense.

PROPOSED BILL: HB 153 – Unemployment & Workers’ Compensation – Testing for Use of Nonprescribed Controlled Substances

This bill requires drug testing for some unemployment applicants. It also mandates that employers perform post-accident drug testing for the use of nonprescribed controlled substances on any employee whose conduct could have contributed to the accident. It also prohibits insurers from providing premium discounts to employers who do not have this post-accident testing in place.

PROPOSED BILL: HB 689 – Workers’ Compensation – Raising Cap on Home/Automobile Modifications, Requiring Scooters

This bill increases the cap on home/automobile modifications from $42,000 to $75,000. However, this bill recently left committee with the cap altered to $55,000.  The bill also increases the cap each year by the same rate as the annual COLA increase. The bill further requires employers/carriers to be responsible for providing scooters in addition to the other enumerated medical appliances listed in Va. Code §65.2-603.

PROPOSED BILL: HB 730 – Failure to Market Residual Capacity

Under this legislation, an employee would not be barred from receiving benefits due to failure to market, if credible evidence supports that the employee is employable in some capacity and has registered with the VEC, or is reasonably unemployable based on age, education, work history, or medical conditions.

PROPOSED BILL: HB 742 – Anxiety and Depression Incurred by Law Enforcement Officers and Firefighters

This bill amends Va. Code §65.2-107 to make anxiety and depression compensable for law enforcement officers and firefighters, after a qualifying event has occurred and after diagnosis by a mental health professional.

See also: SB 289 – Anxiety and Depression Incurred by Law Enforcement Officers and Firefighters

PROPOSED HB 926 – Expands Heart Disease Presumption to DMV Law Enforcement Officers

This bill will expand the heart disease presumption in Va. Code §65.2-402 to DMV law enforcement officers with at least five years of service.

PROPOSED BILL: HB 932 – Extending the COVID-19 Presumption for Health Care Providers

Extends the period of the COVID-19 presumption for health care providers in Va. Code §65.2-402.1 from prior to December 31, 2021, to prior to December 31, 2022.

PROPOSED BILL: HB 995 – Extending the COVID-19 Presumption and Expanding the Heart Presumption

This bill extends the period of the COVID-19 presumption for all employees from prior to December 31, 2021, to prior to December 31, 2022. It also adds Department of Juvenile Justice and Department of Corrections employees as covered employees under the COVID-19 presumption. Additionally, the bill expands the heart presumption statute in Va. Code §65.2-402 to cover correctional officers.

PROPOSED BILL: HB 1002 – Injuries Caused by Repetitive and Sustained Physical Stressors

This bill amends Va. Code §65.2-400 to expand the definition of “occupational disease.” The proposed expansion includes injuries or diseases resulting from physical stressors, including repetitive and sustained motions, exertions, posture stresses, contact stresses, vibrations, and noises. These kinds of injuries do not have to occur over a particular period of time as long as the period can be reasonably identified.

PROPOSED BILL: HB 1042 - Statute of Limitations for Cancer Claims

This bill bars claims for occupational cancer diseases under Va. Code §65.2-402 unless a claim is filed within two years of when the diagnosis of the disease is first communicated to the employee.

Current House proposed amendments to this bill allow a claim for cancer if it is filed within two years of when the diagnosis of the disease is first communicated to the employee or within 10 years from the date of the last injurious exposure in employment, whichever occurs first.  If death results from cancer the right to compensation is barred if the employee is 65 years or older, regardless of the date of diagnosis, communication, or last injurious exposure in employment.

PROPOSED BILL: HB 1056 – Cancer Presumption Service Requirement

This bill reduces the years of service required for firefighters and other employees to qualify for the cancer presumption in Va. Code §65.2-402 from five years to three years.

PROPOSED BILL: HB 1196 – Including Domestic Employees Under the Workers’ Compensation Act

This bill expands the definition of “employee” under Va. Code §65.2-101 of the Workers’ Compensation Act to include individuals engaging in domestic service. Domestic service is defined as services related to the care of an individual in a private home or the maintenance of a private home or its premises, including services performed by companions, cooks, waiters, butlers, maids, valets, and chauffeurs. The definition excludes work that is irregular, uncertain or incidental in nature and duration.

*If you have not received the 2021 editions of the Virginia Workers’ Compensation Adjuster’s Handbook and Noteworthy Cases, please request free copies via email.

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