2006 Code of Virginia § 65.2-402.1 - Presumption as to death or disability from infectious disease

65.2-402.1. Presumption as to death or disability from infectious disease.

A. Hepatitis, meningococcal meningitis, tuberculosis or HIV causing the deathof, or any health condition or impairment resulting in total or partialdisability of any (i) salaried or volunteer firefighter, paramedic oremergency medical technician, (ii) member of the State Police Officers'Retirement System, (iii) member of county, city or town police departments,(iv) sheriff or deputy sheriff, (v) Department of Emergency Managementhazardous materials officer, (vi) city sergeant or deputy city sergeant ofthe City of Richmond, (vii) Virginia Marine Police officer, (viii) gamewarden who is a full-time sworn member of the enforcement division of theDepartment of Game and Inland Fisheries, (ix) Capitol Police officer, or (x)special agent of the Department of Alcoholic Beverage Control appointed underthe provisions of Chapter 1 ( 4.1-100 et seq.) of Title 4.1 who has adocumented occupational exposure to blood or body fluids shall be presumed tobe occupational diseases, suffered in the line of government duty, that arecovered by this title unless such presumption is overcome by a preponderanceof competent evidence to the contrary. For purposes of this section, anoccupational exposure occurring on or after July 1, 2002, shall be deemed"documented" if the person covered under this section gave notice, writtenor otherwise, of the occupational exposure to his employer, and anoccupational exposure occurring prior to July 1, 2002, shall be deemed"documented" without regard to whether the person gave notice, written orotherwise, of the occupational exposure to his employer.

B. As used in this section:

"Blood or body fluids" means blood and body fluids containing visible bloodand other body fluids to which universal precautions for prevention ofoccupational transmission of blood-borne pathogens, as established by theCenters for Disease Control, apply. For purposes of potential transmission ofhepatitis, meningococcal meningitis, tuberculosis, or HIV the term "blood orbody fluids" includes respiratory, salivary, and sinus fluids, includingdroplets, sputum, saliva, mucous, and any other fluid through whichinfectious airborne or blood-borne organisms can be transmitted betweenpersons.

"Hepatitis" means hepatitis A, hepatitis B, hepatitis non-A, hepatitisnon-B, hepatitis C or any other strain of hepatitis generally recognized bythe medical community.

"HIV" means the medically recognized retrovirus known as humanimmunodeficiency virus, type I or type II, causing immunodeficiency syndrome.

"Occupational exposure," in the case of hepatitis, meningococcalmeningitis, tuberculosis or HIV, means an exposure that occurs during theperformance of job duties that places a covered employee at risk of infection.

C. Persons covered under this section who test positive for exposure to theenumerated occupational diseases, but have not yet incurred the requisitetotal or partial disability, shall otherwise be entitled to make a claim formedical benefits pursuant to 65.2-603, including entitlement to an annualmedical examination to measure the progress of the condition, if any, and anyother medical treatment, prophylactic or otherwise.

D. Whenever any standard, medically-recognized vaccine or other form ofimmunization or prophylaxis exists for the prevention of a communicabledisease for which a presumption is established under this section, ifmedically indicated by the given circumstances pursuant to immunizationpolicies established by the Advisory Committee on Immunization Practices ofthe United States Public Health Service, a person subject to the provisionsof this section may be required by such person's employer to undergo theimmunization or prophylaxis unless the person's physician determines inwriting that the immunization or prophylaxis would pose a significant risk tothe person's health. Absent such written declaration, failure or refusal by aperson subject to the provisions of this section to undergo such immunizationor prophylaxis shall disqualify the person from any presumption establishedby this section.

E. The presumptions described in subsection A of this section shall onlyapply if persons entitled to invoke them have, if requested by the appointingauthority or governing body employing them, undergone preemployment physicalexaminations that (i) were conducted prior to the making of any claims underthis title that rely on such presumptions, (ii) were performed by physicianswhose qualifications are as prescribed by the appointing authority orgoverning body employing such persons, (iii) included such appropriatelaboratory and other diagnostic studies as the appointing authorities orgoverning bodies may have prescribed, and (iv) found such persons free ofhepatitis, meningococcal meningitis, tuberculosis or HIV at the time of suchexaminations. The presumptions described in subsection A of this sectionshall not be effective until six months following such examinations, unlesssuch persons entitled to invoke such presumption can demonstrate a documentedexposure during the six-month period.

F. Persons making claims under this title who rely on such presumption shall,upon the request of appointing authorities or governing bodies employing suchpersons, submit to physical examinations (i) conducted by physicians selectedby such appointing authorities or governing bodies or their representativesand (ii) consisting of such tests and studies as may reasonably be requiredby such physicians. However, a qualified physician, selected and compensatedby the claimant, may, at the election of such claimant, be present at suchexamination.

(2002, c. 820; 2003, c. 842.)