Virginia employers face two new paid leave laws

Virginia recently enacted two new paid leave laws – one requires covered employers to provide paid sick leave, and the other creates paid family and medical leave. Although these laws do not go into effect until 2027 and 2028, respectively, employers should begin preparing now.

Paid sick leave

On May 20, Virginia passed a law mandating paid sick and safe leave to employees in Virginia. The Virginia Commissioner of Labor and Industry must issue regulations by July 1, 2027.

Staggered coverage

The timeline for coverage depends on an organization’s size:

• Employers with 50 or more employees are covered on July 1, 2027.
• Employers with 25-49 employees are covered on January 1, 2028.
• Employers with 1-24 employees are covered on January 1, 2029.

The statute does not address whether employee counts are based on an organization’s total employees or only those employees in Virginia, but this may be resolved by future regulations.

Sick leave and “safe leave” for employees and family members

In addition to providing paid leave for illness and medical needs of the employee or family members, the law also covers certain domestic abuse and criminal conduct, such as sexual assault and stalking. Such “safe leave” is available when an employee or an employee’s family member requires time off to access victim’s aid, relocate, obtain medical care or counseling, or seek legal advice relating to the abuse or criminal conduct.

“Family member” is defined broadly as “any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.”

Accrual, use, and carryover  

Employees accrue one hour of paid sick and safe leave for every 30 hours worked, with a cap on accrual and use of 40 hours per year. Up to 40 hours of accrued leave may be carried over to the following year.

Paid sick and safe leave may be used in hourly increments unless the employer allows the leave to be taken in smaller increments, and an employer may lend paid leave to an employee before it is accrued. 

Upon termination of employment, employers are not required to “cash out” the balance.

Taking leave: Employees have significant leeway

Employees may request leave by virtually any means, including orally, and are only required to provide the anticipated duration of the leave when possible. Employees must “make a good faith effort” to give advance notice to minimize disruptions to the employer when the need for the leave is foreseeable.

An employer can require advance notice of the need for sick leave, but only if it maintains a written policy distributed to employees. Employers cannot require “disclosure of details of health information about an employee or an employee’s family member or details of domestic violence, sexual assault, or stalking as a condition of providing paid sick leave.”

If the leave is for three or more days, an employer can require “reasonable documentation.” This documentation can include a note from a treating medical provider, or certain types of documentation regarding the circumstances related to a “safe” leave request.

Coordination with employer policies and collective bargaining agreements

An employer with a policy or collective bargaining agreement that provides “an employee an amount of paid leave sufficient to meet the requirements of [the law] and that may be used for the same purposes and under the same conditions” satisfies the requirements of the new law.

Remedies and enforcement

The new law protects employees from interference with their rights under the law. It also protects employees from retaliation for taking leave, and for making good-faith allegations of violations of the law.

Employees have two paths for enforcement of rights under the law:

• Private right of action. The statute creates a private right of action for employees and provides “double damages,” reasonable attorneys’ fees, costs, and prejudgment interest. The limitations period for a private right of action is two years from the violation or from date that the employee knew or should have known of the violation.
• Administrative charge. An employee can also file an administrative charge with the Virginia Commissioner of Labor and Industry, which can investigate the alleged violation and recover the relief available in a private civil action plus civil penalties of up to $500 for each violation. An administrative action is subject to a one-year limitations period.

In some circumstances, employers have a window period during which they can correct violations. A provision of the law states, “No civil monetary penalty shall be assessed and no action shall be brought if the person or employer alleged to have violated this article corrects the alleged violation within a reasonable time to be established by regulation.” This provision is included in the subsection of the statute regarding Commissioner proceedings. Thus, it appears that this “correction window” is available only in Commissioner proceedings and not after a private civil action is filed.

New paid family and medical leave

On April 22, Virginia enacted a paid family and medical leave statute, which becomes effective in 2028. This new law creates a program similar to unemployment insurance, with employees and employers paying into a state-controlled fund.

The program will provide eligible employees with up to 12 weeks of paid leave per year from the insurance fund at 80 percent of the employee’s average weekly wage, subject to a weekly cap of 100 percent of the Commonwealth’s average weekly wage, which will be set annually.

Administration and funding of the program

The Viriginia Employment Commission is charged with setting up the program’s administration before January 1, 2028. The VEC administers Virginia’s unemployment insurance program and will have comparable responsibility for the paid family and medical leave program.  

The program will be funded by payroll contributions from employers. The VEC must set “contribution amounts” by October 1, 2027, and before October 1 in each year that follows.

Beginning April 21, 2028, employers with more than 10 employees must pay at least 50 percent of the required contribution amount and withhold up to 50 percent of the required contribution amount from each employee’s pay. These withheld funds must be remitted to the program.

Initially, employers with 10 or fewer employees will not be required to pay any portion of the contribution amount, but they must withhold the contribution amount from employees’ pay and remit it to the fund.

Insurance payments will become available to employees on December 1, 2028.

Qualifying uses 

The paid leave can be used for family and medical reasons, including the following:

• Caring for a new child (birth, adoption, or foster placement).
• Caring for a family member with a serious health condition.
• The employee’s serious health condition.
• Caring for a military service member who is the employee’s next of kin or other family member.
• Attending to qualifying family needs when a family member has military duty or has been notified of an impending call or order for military duty.
• Seeking safety services for the employee or family member related to domestic violence, sexual assault, or stalking (capped at four weeks of paid leave).

Use of paid leave, scheduling, and notices

The leave can be taken intermittently. No minimum increment of time for taking leave is specified in the statute, but this could be addressed by future regulations, which the VEC must issue by April 1, 2028. 

An employee must make a “reasonable effort” to schedule leave so as not to “unduly disrupt the operations of the employer” and to give “prior notice” of the need for leave “to the extent practicable” and “as soon as practicable.”

Employers must give written notice of the paid family and medical leave that is available to employees

• Upon hire.
• When an employee requests or indicates intent to take leave.

There is also a poster requirement, and the VEC has authority to issue regulations regarding employer notice requirements.               

Coordination with other leave, employer policies, and collective bargaining agreements         

Virginia’s paid family and medical leave applies concurrently with unpaid leave under the federal Family and Medical Leave Act. It may also apply concurrently with other types of unpaid or paid leaves, such as short-term disability. However, the employer must provide written notice to the employee of that application.

It is not clear how the leave requirements apply to federal contractors who are required to provide paid sick leave to covered employees. Contractors are often prohibited from taking credits for required benefits under state laws in meeting federal prevailing wage and fringe benefits obligations.   

The law allows for employer plan “opt-outs” where the VEC approves a private plan that provides benefits satisfying the levels of the VEC program at no greater cost to the employees.

With respect to collective bargaining agreements, the law provides that no collective bargaining agreement entered into or renewed after January 1, 2027, can “diminish” any employee’s right to paid leave. This gives some flexibility for employers with collective bargaining agreements to adjust collectively bargained wage and benefits packages to take the new paid leave requirements into account.

Enforcement and non-retaliation  

Employees have protection from retaliation and a right to the same or equivalent position upon return from leave, with no loss of seniority or benefits. Protected activity includes mistaken good-faith assertions of rights protected under the law. In addition, employers cannot count paid leave as an absence that can result in adverse employment action.

Employees can institute private civil actions, which can result in double damages, attorneys’ fees, and costs. A one-year limitations period applies unless the violation is willful, in which case a three-year limitations period applies.

The VEC can also institute civil actions for failure to make contributions. The entities and individuals who willfully cause the failure of the employer to pay may be liable. There is no limitations period on actions to recover contributions.

The Virginia Commissioner of Labor is authorized to investigate and pursue administrative or civil remedies for denial of leave, retaliation, or other substantive violations of the law.

Virginia employers should prepare now

Employers should not delay in preparing for these two new paid leave laws and should monitor the Virginia Department of Labor and Industry and VEC websites for updates on the new laws and anticipated regulations.

Likewise, employers should look at their current paid and unpaid leave policies for potential adjustment in light of the practical and economic implications of these new laws. Payroll departments and processors will benefit from lead time.

A review of attendance policies might also be helpful to ensure compliance with the new laws.

Compensation for absence from work may provide encouragement to some employees to miss work

• In “grey areas” where the employee may or may not truly need the leave coverage.
• At the end of the year, when employees have paid leave time to use or lose.

The balancing of incentives and new disincentives affecting the workforce may be a relevant consideration in hiring and staffing plans for coming years.    

Finally, employers operating with union-represented employees should review current collective bargaining agreements, upcoming bargaining plans, and potential obligations under the National Labor Relations Act. Integrating these new mandatory benefits, as well as the increased costs, will affect the employees. These benefits and costs also can affect employees outside union-represented operations because employees are often very aware of what their cohorts are getting and expect the same.

For assistance with Virginia’s new paid leave laws, please contact an attorney in our Washington, D.C. - Northern Virginia office.