Effective July 1, 2019, employers in Virginia will be subject to a new requirement to provide employees with copies of certain documents in their personnel file. Until now, Virginia has left it to the discretion of employers to decide what level of access to provide to employees.
Under revised Virginia Code § 8.01-413.1, if a written request is made from a current or former employee or their attorney, “every” employer must, within 30 days, provide a copy 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.
The law contemplates an additional 30-day extension may be allowed if the employer cannot meet the initial 30-day deadline. It also allows a reasonable fee for copying hardcopy files or transmitting electronic files to be charged to the requester. If an employer “willfully” refuses to comply (as determined by a court), the requester may be awarded damages, costs, and attorney fees. There is only one narrow exception to this new disclosure requirement in the event the employee’s treating physician or clinical psychologist opines that the employee’s review of the records or papers would be reasonably likely to endanger the life or physical safety of the employee or another person or cause substantial harm to a person referenced in the file. In such cases, the disclosure can be limited to the employee’s attorney or authorized insurer, rather than to the employee.
Virginia employers should take note (and update their policies and procedures) to comply with this new legal requirement. For assistance with this and other employment matters, contact OFP Shareholder Marina Burton Blickley, an attorney in the OFP Labor and Employment group, or the professional who typically handles your matters at 703-218-2100.