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September 22, 2025
The General Assembly of Virginia amended its employment liability law to expand vicarious liability for employers. The Sexual Assault Employer Accountability Act (“Act”), Virginia House Bill 1730, took effect on July 1, 2025. The bill introduced a new term – “vulnerable victim” – to Virginia’s employer liability laws. Now, an employer can be held vicariously liable for personal injury or wrongful death of a “vulnerable victim.”
What Is Vicarious Liability?
Vicarious liability is a legal principle holding a party responsible for the actions of another party, even without direct involvement in those actions.
Prior Virginia Law and the Act’s Change to It
Previously, Virginia law stated that an employer could be held liable for an employee’s negligent or intentional torts only if the employee was acting within the scope of employment. “Within the scope of employment” describes a scenario where an employee’s action is reasonably related to his/her job duties and is done to serve the employer’s interests.
The Act amends the law to protect vulnerable victims from the wrongful or intentional acts of an employee, even if the employee was not acting within the scope of his/her employment.
Who Is a “Vulnerable Victim” Under the Act?
A “vulnerable victim” is defined as “any person who is at a substantial disadvantage relative to an employee due to circumstances, including such person’s physical or mental condition or characteristics…” The definition includes (1) patients of a health care provider; (2) residents of an assisted living facility; (3) passengers of a common carrier (e.g., bus, taxi, airline); (4) passengers of a non-emergency medical transportation carrier; (5) clients of an esthetics spa or business offering massage therapy; (6) the personal representative of a deceased “vulnerable victim” listed above; or (7) a “person under a disability,” as defined in Virginia Code § 8.01-2, which includes (a) incarcerated felons; (b) infants; (c) incapacitated or mentally incompetent persons; (d) incapacitated ex-servicepersons or disabled veterans; or (e) other persons who are unable to manage their estate properly, defend their legal or property rights, or those with disabling substance abuse issues.
When Does Vicarious Liability Attach?
To establish vicarious liability under the Act, the vulnerable victim must establish that (1) the employee’s conduct occurred while the employee was reasonably likely to be in contact with the vulnerable victim and the employee’s conduct directly caused personal injury or death by some wrongful act; (2) the employer failed to exercise reasonable care to either (a) prevent the employee from intentionally harming the vulnerable victim or (b) control the employee, resulting in an unreasonable risk of a vulnerable victim suffering personal injury or death by wrongful act; (3) the employer knew or should have known of the ability to control the employee; and (4) the employer knew or should have known of the necessity and opportunity for exercising such control over the employee.
Employer Takeaways
If your business involves vulnerable victims, there are steps that you can take to mitigate risk at every stage of the employment lifecycle. Review your insurance policies and update them, as necessary, to ensure coverage for vicarious liability and actions involving vulnerable victims. Conduct criminal, reference, and other background checks before hiring personnel. Ensure that workplace policies are clear and strong as to anti-harassment, workplace violence, and the like – and make sure that all employees are aware of those policies. Ensure effective oversight of positions dealing with vulnerable victims. Outline complaint and reporting procedures – and make sure that all employees are aware of them. Ensure prompt, thoughtful, and thorough investigations of alleged misconduct. Document disciplinary action and termination decisions. Seek legal counsel with questions.
*Special thanks to Lydia Deardoff, our pre-law intern, for her contributions to this article.
The author of this article, Christopher S. Koller, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Virginia, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
