Virginia Senate Bill 128 Adds Health Care Professionals to Virginia’s Noncompete Restrictions

As we previously reported, Virginia recently enacted Senate Bill 170 (“the Act”), which takes effect July 1, 2026, and expands the Commonwealth’s existing restrictions on noncompete agreements by rendering such agreements void and unenforceable when an employer terminates an employee without cause.

On May 14, 2026, by way of Senate Bill 128 (“SB 128” or the “Amendment”), Virginia broadened the Act to prohibit noncompetes for “health care professionals, ” effective July 1, 2026.

Overview of the Amendment

SB 128 amends the Act to prohibit employers from entering, enforcing, or threatening to enforce a covenant not to compete with a “health care professional”, defined as “any person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work.”  Case law in Virginia suggests that restrictions on noncompetes apply to employee non-solicitation clauses.  Therefore, it is possible that employee non-solicitation clauses are also unenforceable against health care professionals, but this remains an open issue.

Importantly, Section 2 of the Amendment makes clear that the Amendment does not apply retroactively.  Therefore, the Amendment does not invalidate or affect any contract or covenant entered into or renewed prior to July 1, 2026. 

A health care professional may bring a civil action to challenge a noncompete within two years of the latest of: the date the noncompete was signed, the date the health care professional learns of the noncompete, the date employment is terminated, or the date the employer takes any step to enforce the noncompete. Courts may void the noncompete, enjoin prohibited conduct, and award liquidated damages, lost compensation, and reasonable attorney’s fees and costs. SB 128 also bars retaliation against low-wage employees or health care professionals for bringing an action under the Amendment, and employers who violate the noncompete prohibition may face a civil penalty of $10,000 per violation.

What Health Care Employers Can Still Do

SB 128 is not a total prohibition on the use of post-employment restrictions for health care workers.  First, employers may utilize noncompete agreements for health care workers who are not “health care professionals” under the Amendment. For health care professionals who are covered by the Amendment, employers retain the ability to enter into and enforce the following covenants:

Repayment Provisions

Employers may require health care professionals who leave within five years to repay recruitment-related costs, including relocation expenses, signing bonuses, and training costs.

Non-Solicitation Clauses

Employers may restrict a departing health care professional from directly soliciting “customers” or “prospective customers” (e., patients) with whom the health care professional had material contact during employment, for the purpose of providing services that are the same or substantially similar to what the employer provides. However, a non-solicitation covenant cannot prevent a health care professional from informing patients where the health care professional intends to go practice, how to reach that health care professional, and that the patient has the right to choose their own provider.

Confidentiality Agreements

Employers may continue to use and enforce nondisclosure or confidentiality agreements with health care professionals to protect legitimate confidential and proprietary information.

Business Sale Exception

SB 128 carves out an exception to the noncompete restriction for health care professionals involved in a sale of a business. When a transaction involves the sale of all or substantially all of a practice’s operating assets, a division, or an ownership interest, the buyer and seller may negotiate a noncompete for the health care professional, so long as it is reasonable in scope, duration, and geographic area.

Employer Takeaways

With July 1, 2026 quickly approaching, employers who employ health care professionals in Virginia should take proactive steps to ensure compliance.  While existing noncompetes with health care professionals entered into or renewed prior to July 1, 2026 remain enforceable, employers should be prepared to revise future employment agreements with health care professionals to ensure compliance with the Amendment.  

The Amendment reflects Virginia’s continued movement toward limiting noncompete agreements, particularly in the health care sector. Virginia employers should act now to ensure their employment agreements reflect these evolving requirements before the July 1, 2026 effective date.

Catherine White, a Summer Associate in Epstein Becker Green’s New York office (not admitted to practice) contributed to the preparation of this piece.