Health Care Employers Get Ready: Virginia Mandates New Workplace Violence Incidents Reporting System Obligations

What Employers Are Covered?

Although Virginia Code § 32.1-127 refers to the term "hospital," the definition of "hospital" in Virginia Code § 32.1-123 includes all entities licensed as hospitals under Virginia law, not only acute care hospitals. Indeed, the new law applies to:

[A]ny facility licensed pursuant to this article in which the primary function is the provision of diagnosis, of treatment, and of medical and nursing services, surgical or nonsurgical, for two or more nonrelated individuals, including hospitals known by varying nomenclature or designation such as children's hospitals, sanatoriums, sanitariums, and general, acute, rehabilitation, chronic disease, short-term, long-term, outpatient surgical, and inpatient or outpatient maternity hospitals.

Thus, the new requirements apply to all facilities licensed as hospitals in Virginia.

What Individuals Are Covered?

The new reporting requirements apply to "acts of violence or threat of violence [] that occurs against an employee of the hospital while on the premises of such hospital and engaged in the performance of his duties."

"Employee of the hospital" means any employee of the hospital or "any health care provider credentialed by the hospital or engaged by the hospital to perform health care services on the premises of the hospital."

Therefore, any incidents against employees, contractors, and individuals who are "credentialed or engaged" to perform health care services must be reported.

What Incidents Must Be Reported?

All incidents of "workplace violence" must be reported. "Workplace violence" includes both physical and verbal actions and is defined as "any act of violence or threat of violence, without regard to the intent of the perpetrator, that occurs against an employee of the hospital while on the premises of such hospital and engaged in the performance of his duties." Medicare-certified hospitals have a regulatory obligation to care for patients in a safe environment under the Medicare Hospital Conditions of Participation. CMS believes that health care workers have a right to provide care in a safe setting and issued a program memorandum in 2022 providing guidance to state survey agencies regarding hospital workplace violence. The amended Virginia law further reinforces these principles and aims to further promote awareness, identification of workplace violence, and ongoing training to prevent workplace violence in hospitals.

"Workplace violence" includes the threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether physical injury is sustained, and any incident involving the threat of using dangerous weapons or using common objects as weapons or to cause physical harm, regardless of whether physical injury is sustained.

All reported incidents must be recorded as voluntarily reported by an employee, without any requirement to investigate the report for accuracy before recording it.

What Information Must Be Retained?

Covered employers must maintain records of the reported incident for two years. Virginia Code § 32.1-127 requires that a covered employer report and retain a broad range of information related to workplace violence incidents. Thus, covered employers should review and implement investigative processes to obtain and document all required information. The records must include:

1. The date and time of the incident;
2. A description of the incident, including the job title(s) of the affected employee;
3. Whether the perpetrator was a patient, visitor, employee, or other person;
4. A description of where the incident occurred;
5. Information relating to the incident, including whether it involved a physical attack with or without a weapon or object, a threat of physical force or use of a weapon or other object with the intent to cause bodily harm, sexual assault or threat of sexual assault, or "anything else" not specifically enumerated;
6. The response to and any consequences of the incident, including whether security or law enforcement was contacted and, if so, their response and whether the incident resulted in any change to hospital policy; and
7. Information about the individual who completed the report, including name, job title, and the date of completion.

How is the Information Reported?

Virginia Code § 32.1-127 requires that the above information be reported in two ways:

(1) Via a report to the hospital's chief medical officer and chief nursing officer, at minimum, on a quarterly basis.

(2) Via an annual aggregated report to the Department of Health that includes, at a minimum, the number of incidents of workplace violence voluntarily reported by an employee pursuant to subsection.

Policy and Employee Notice Requirements

Covered employers must notify all employees about the workplace violence incident reporting system, including all new employees during orientation. Employers also must provide training on workplace violence reporting procedures.

Covered employers must adopt a policy that prohibits any person from discriminating or retaliating against any employee for "reporting to, or seeking assistance or intervention from, the employer, security agencies, law-enforcement authorities, local emergency services organizations, government agencies, or others participating in any incident investigation."

Employers must also analyze the workplace violence data to make improvements in preventing workplace violence. The law expressly identifies how such improvements can be made, including by providing continuing education in targeted areas, such as de-escalation training, risk identification, and violence prevention planning.

What Steps Should My Organization Take to Comply with These New Requirements?

Covered health care employers must take immediate steps to create and implement a workplace violence incident reporting system prior to the July 1, 2025, deadline, including the following steps:

1. Review, revise, and implement workplace violence and safety policies to articulate clear procedures for reporting any instances of workplace violence.
2. Review and revise employee handbooks to incorporate applicable reporting procedures and anti-retaliation policies for reporting suspected workplace violence incidents.
3. Ensure that contractors who perform health care-related services on premises are aware of applicable reporting procedures.
4. Ensure that investigatory processes and record-keeping policies sufficiently gather and retain the required information.
5. Review and provide training and continuing education to sufficiently address de-escalation, risk identification, and violence prevention planning.
6. Designate employees and develop processes to review workplace violence data and make necessary decisions to prevent workplace violence.

Notably, these new requirements may face changes in the coming years as the new law directs the Virginia Secretary of Health and Human Resources to "convene a stakeholder work group" that includes various state agencies and trade groups "for the purpose of making recommendations on the workplace violence reporting system and policies." Additional statutes, regulations, and administrative guidance are expected.

Please contact Alissa D. Fleming, Donna M. Glover, Alexander V. Cranford, or your Baker Donelson attorney for additional insight and compliance assistance.