Workforce Alert: New Statute Grants Virginia Employees Access to Certain Employment Records

July 02, 2019

As of July 1, 2019,  Virginia Code §8.01-413.1 becomes effective, requiring employers to provide both employees and former employees (or their attorney) copies of all records or papers retained by the employer in any format reflecting:

(i) the employee’s dates of employment with the employer;

(ii) the employee’s wages or salary during the employment;

(iii) the employee’s job description and job title during the employment; and

(iv) any injuries sustained by the employee during the course of the employment with the employer.

Employers have 30 days to comply with a written request for such records, which can be extended by up to an additional 30 days with notice and a good reason for a delay.  If the records or papers are kept in paper or hard copy format, the employer may charge a reasonable fee per page for copying. If the records or papers are kept in electronic format, the employer may charge a reasonable fee for the electronic records.

Notable exception:  The statute does not require providing copies of records to an employee when the employee’s treating physician or clinical psychologist, in the exercise of his professional judgment, has made a part of the employee’s records or papers a written statement that in his opinion the furnishing to or review by the employee of such records or papers would be reasonably likely to endanger the life or physical safety of the employee or another person, or that such records or papers make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person. In any such case, if requested by the employee or his attorney or authorized insurer, such records or papers shall be furnished within 30 days of the date of such request to the employee’s attorney or authorized insurer, rather than to the employee.

Willful violations of this statute may result in an award of damages, court costs and attorneys fees.

For additional information, please contact Amie Flowers Carmack at 919-590-0397 or acarmack@morningstarlawgroup.com.

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