What the New Law Requires

Virginia has long been one of the states not requiring employers to provide employees access to their personnel records. That is about to change. Beginning July 1, 2019, employers in Virginia must, according to newly enacted legislation, within 30 days of receipt of a written request from a current or former employee or her attorney, furnish a copy of all records retained by the employer in any format, in each of the following categories:

• the employee’s dates of employment with the employer

• the employee’s wages or salary during the employment

• the employee’s job description and job title during employment

• any injuries sustained by the employee during the course of the employment with the employer

If the employer is unable to meet the 30 day deadline, the employer must notify the requester of the reason for the delay and then will have no more than 30 days after the date of that written notice to comply with the records request.

If the records are kept only in paper or hard copy format, the employer may charge a reasonable fee per page for copying. If the records are kept in electronic format, the employer may charge a reasonable fee for preparing and producing the electronic records.

Consequences for Failure to Comply

If the employer fails to comply with a written request, the requester may have a subpoena issued to secure compliance with the law.

Employers who willfully fail to comply may be liable for damages for all expenses incurred by the employee to obtain copies of the records, including a refund of any fees paid for such copies, as well as court costs and reasonable attorney’s fees.

Minor Exceptions

An employer is not required to produce copies of records to a requesting employee in either of the following two situations:

• if the employee’s treating physician or clinical psychologist, in the exercise of her professional judgment, has made a part of the employee’s records or papers a written statement that in her 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

• if the records 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.

However, even if not required to produce records to the employee in the above two situations, the employer must, if requested, produce copies of those records to the employee’s attorney or authorized insurer within 30 days of the receipt of the request.

Employer Next Steps

Employers should plan now to comply with this law by updating policies that govern access to employment records. Because of the brief 30-day window to reply to a request, employers should also consider designating someone in the company to be responsible for receiving and processing any requests from employees, their attorneys, or their insurers.