Virginia Legislature Enacts COVID-19 Presumptions for Health Care Providers and Emergency Personnel

Virginia has passed COVID-19 presumption legislation that affects health care providers and emergency personnel. Under this new legislation, there are different requirements and exceptions based on the category the employee falls into.

Health Care Providers

Pursuant to Va. Code 65.2-402(B), (E)(2), and (F)(2), the Virginia Workers’ Compensation Act creates a presumption for health care providers who treat COVID-19 patients and subsequently contract the virus. The presumption applies to any health care provider directly involved in diagnosing or treating individuals known or suspected to have COVID-19. A list of applicable “health care providers” can be found in Va. Code 8.01-581.1.

To trigger the presumption, the employee must have had a disability or death from COVID-19 between March 12, 2020, and December 31, 2021. Further, the employee must prove one of the following:

1. Prior to July 1, 2020, the employee received a positive diagnosis of COVID-19 from a licensed physician, nurse practitioner, or physician assistant after either (i) a presumptive positive test or a laboratory-confirmed test for COVID-19 and presenting with signs and symptoms of COVID-19 that required medical treatment, or (ii) presenting with signs and symptoms of COVID-19 that required medical treatment absent a presumptive positive test or a laboratory-confirmed test for COVID-19; or

2. On or after July 1, 2020, and prior to December 31, 2021, the claimant received a positive diagnosis of COVID-19 from a licensed physician, nurse practitioner, or physician assistant after a presumptive positive test or a laboratory-confirmed test for COVID-19 and presented with signs and symptoms of COVID-19 that required medical treatment.

Health Care Provider Exception:

If the employee is offered a COVID-19 vaccine by his or her employer and refuses it, the employee cannot receive the presumption if the employee contracts COVID-19 after this. This exception does not apply, however, if the employee refuses the vaccine because the employee “is immunized” or the employee’s “physician determines in writing that the immunization would pose a significant risk to the person’s health.”

Emergency Personnel

Presumptions for Emergency Personnel (Firefighters/Police/Law Enforcement)

The new emergency personnel presumption applies to employees who contracted COVID-19 between July 1, 2020, and December 31, 2021.

The Act now creates a presumption for firefighters, law-enforcement officers, correctional officers, and regional jail officers who test positive for COVID-19.

To be entitled to the presumption, the employee must prove two things:

1. First, the employee must have died or suffered disability between July 1, 2020, and December 31, 2021; and

2. The employee must prove that they received a COVID-19 diagnosis from a licensed physician after either a “presumptive positive test” for COVID-19 or a “laboratory confirmed test for COVID-19” and presented with signs and symptoms of COVID-19 that required medical treatment.

Unlike the presumption for health care providers, the presumption for emergency personnel requires a positive COVID-19 test regardless of the date that the employee was diagnosed with COVID-19. Additionally, emergency personnel must be diagnosed with COVID-19 from a licensed physician only.

Unlike the health care provider presumption, there is no exception for emergency personnel who refuse a COVID-19 vaccine offered by the employer.

These presumptions took effect on July 1, 2021, and apply retroactively to employees who contracted COVID-19 between March 12, 2020, and December 31, 2021. Once the presumption is triggered, the employer bears the burden of overcoming the presumption by a preponderance of the evidence.

Sarah Burton