Are Non-Competes Enforceable for Therapists and Behavioral Health Staff in Virginia?

Virginia Code § 40.1-28.7:8(B) reads: "No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee or health care professional."

That is three prohibitions in one sentence.

A Virginia employer cannot require a covered hire to sign a non-compete, cannot enforce one after a departure, and cannot even threaten to.

A leftover covenant in your Virginia offer packet is therefore not just unenforceable paper — having a covered employee sign one is itself entering into it, which the statute bars.

"Health care professional" is defined by credential: anyone licensed, registered or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology or Social Work.

Written that way, the definition covers most of the clinical staff a behavioral health practice hires, not only prescribers — the board-by-board detail is the next section but one.

The other half of the ban, low-wage employee, has two triggers: average weekly earnings over the prior 52 weeks below the Commonwealth's average weekly wage, or entitlement to FLSA overtime regardless of earnings.

Interns, students, apprentices and trainees count as low-wage too; employees paid mainly by commissions, incentives or bonuses do not.

The statute itself prints no dollar figure — it defines the low-wage line by the Commonwealth's average weekly wage (Virginia Code § 65.2-500(B)).

The practical figure for that line is the Virginia Workers' Compensation Commission's maximum weekly compensation rate, which by statute equals 100% of the Commonwealth's average weekly wage: $1,507.01 for injuries on or after July 1, 2026 ($1,463.10 for July 1, 2025).

How Virginia compares with other states is covered in our guide to non-competes nationally.

The rule is a statute, not a judge-made test.

Virginia added health care professionals to its existing non-compete ban in 2026 (Acts of Assembly chapters 883, 1113 and 1114), and regular-session laws take effect on the first day of July following the session unless the bill says otherwise — so the health care professional ban has applied since July 1, 2026.

The same 2026 session added the severance rule: no covenant not to compete between an employer and an employee is enforceable if the employer discharges the employee without cause and without providing severance benefits or another monetary payment, and those terms must be disclosed when the covenant is signed.

That rule reaches every Virginia non-compete, including the narrow ones you can still lawfully sign.

Enforcement has teeth.

An employer that violates the statute faces a $10,000 civil penalty for each violation, owes a prevailing employee's attorney fees and costs, and must post a copy or approved summary of § 40.1-28.7:8 with its other required notices.

One court decision and one open question finish the picture.

In Sentry Force Security v. Barrera (Virginia Court of Appeals, January 27, 2026, unpublished), the court held that § 40.1-28.7:8 lets an employer bar a low-wage former employee from soliciting its customers, but does not let it enforce a clause barring that employee from soliciting its other employees; law-firm reports say the case has been appealed to the Supreme Court of Virginia.

And whether the 2026 changes reach covenants signed before July 1, 2026 is not settled in the sources reviewed for this page — law-firm analyses report the amendments apply only to covenants entered into, amended, extended or renewed on or after July 1, 2026, but the enacted chapter texts have not been confirmed here.

Treat both as questions for your employment counsel rather than settled answers.

The definition does the heavy lifting: "Health care professional" means any person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work.

Because the trigger is the credential rather than the job title, a Virginia behavioral health practice cannot file this under "physician law" — in Virginia the ban reaches the counseling, psychology and social work credentials your practice is built on.

Two mappings matter most for behavioral health.

First, the Board of Counseling: Virginia's Board of Counseling licenses professional counselors, marriage and family therapists and substance abuse treatment practitioners, certifies substance abuse counselors and counseling assistants, and registers qualified mental health professionals (QMHPs and QMHP-trainees), behavioral health technicians and assistants, and peer recovery specialists — and each of those credentials falls inside the statutory wording.

Second, licensed behavior analysts and licensed assistant behavior analysts are licensed by the Board of Medicine (Virginia Code § 54.1-2957.16), so the analysts on an ABA clinic's org chart are covered too.

Psychologists (Board of Psychology) and social workers (Board of Social Work) are named boards in their own right, as are physicians — your psychiatrists — and nurses, including nurse practitioners, under the Boards of Medicine and Nursing.

One gap to flag: whether an RBT who holds no Virginia registration counts as a health care professional is not settled in the sources reviewed.

The statute's low-wage prong can still bar a covenant with that employee depending on how the role is paid, so have counsel check the classification before relying on any covenant with an RBT.

For the employees this page is about, there is no time-and-area analysis to run.

A court weighs how long a covenant lasts and how wide it reaches only where the law permits the covenant at all; Virginia's statute removes that step for health care professionals and low-wage employees by prohibiting entry into the agreement, so a shorter duration or a narrower radius does not rescue one.

The statute does still draw one scope line worth knowing: a covenant not to compete under § 40.1-28.7:8 cannot restrict an employee from providing a service to a customer or client of the employer if the employee did not initiate contact with or solicit that customer or client.

Clients who come find the clinician on their own are outside any covenant's reach — and, as the next section covers, that principle carries into what you can still ask a departing clinician to sign.

Where a covenant does survive, reasonableness is the standard the statute itself keeps: Virginia allows reasonable non-competes with a health care professional or their business entity as part of a sale of all or substantially all of the practice's operating assets with goodwill, or of the ownership interest.

And for employees outside the ban — an unlicensed practice administrator, say, who is neither a health care professional nor low-wage — enforceability rests on Virginia's general restrictive-covenant law, which is beyond this page's sources.

Have employment counsel review any covenant in either category before a hire signs.

Non-solicits are what you keep.

Virginia employers of health care professionals may still require them, for a stated period after leaving, not to solicit customers — including actively sought prospects — that they had material contact with, for the same or substantially similar services.

The same provision protects the clinician's side: the professional may still tell patients they treated about the new practice, the new contact information and the patient's right to choose a provider.

Draft around that line — material-contact clients only, a stated period, the same services — and leave the patient-notice allowance intact rather than drafting against it.

The statute also fixes the floor: unsolicited clients are outside any restriction, because a covenant not to compete under § 40.1-28.7:8 cannot restrict an employee from serving a customer or client the employee did not initiate contact with or solicit.

Employee non-solicits are different, and the case law is thin.

In Sentry Force Security v. Barrera, the Court of Appeals held that the statute lets an employer stop a low-wage former employee from soliciting its customers but does not let it enforce a covenant barring that employee from soliciting its other employees.

The case involved a low-wage employee, the opinion is unpublished, and no court has applied it to health care professionals — flag it to counsel rather than assuming it settles a clause in your agreements.

Sizing these clauses, and the professional ethics standards that shape a client handoff when a clinician leaves, are covered in our guide to non-solicitation clauses.

The protection you keep is real; aim it deliberately:

• Take non-competes out of your Virginia templates. The ban covers entering into the agreement, so a leftover clause in an offer packet is a violation risk with a $10,000-per-violation price tag, attorney fees on top, and a posting obligation to fix.
• Keep a narrow client non-solicit. Material-contact clients, a stated period, the same or substantially similar services — and keep the patient-notice allowance intact.
• Shift the money to recruitment-cost repayment. Virginia lets you require a health care professional employed fewer than five years to repay all or a prorated share of recruitment-related costs: relocation, signing or retention bonuses, and recruiting, education or training expenses. How to structure those clauses safely is its own topic — our guide to training repayment agreements covers it.
• Reserve restrictive covenants for ownership and sales. A reasonable covenant still works with a health care professional or their business entity as part of a sale of all or substantially all of the operating assets with goodwill, or of the ownership interest — counsel should draft it.
• Respect the severance interaction. Any Virginia non-compete is unenforceable against an employee you discharge without cause and without severance or another monetary payment, and those terms must be disclosed at signing — put the disclosure in the agreement itself.
• Post the statute. A copy or approved summary of § 40.1-28.7:8 goes up with your other required notices.
• Run the low-wage test on unlicensed roles. Average weekly earnings over the prior 52 weeks below the Commonwealth's average weekly wage, or FLSA overtime entitlement, means the ban applies regardless of licensure.

Two habits cover the rest.

Have Virginia employment counsel review every restrictive covenant before a hire signs, and run the low-wage classification for any unlicensed role you still want to bind.

The statute rewards practices that put their protection in the tools it permits.