Virginia Expands Provisions for Paid Sick Leave and Paid Family and Medical Leave

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Quick Hits

• Virginia Governor Spanberger has signed legislation that expands paid sick leave to all public and private employees.
• The paid sick leave legislation mandates one hour of paid sick leave for every thirty hours worked, with an annual accrual and use cap of forty hours, and includes provisions that could create challenges for employers, including very loose requirements on the notice employees must give before taking leave.
• The paid family and medical leave law establishes a payroll-funded insurance program, providing qualifying employees with up to twelve weeks of paid leave at 80 percent of their average weekly wage, with contributions split between employers and employees.

Paid Sick Leave

After back-and-forth amendments between the legislature and Governor Spanberger, the Commonwealth of Virginia has enacted a paid sick leave law (House Bill (HB) 5/Senate Bill (SB) 199; Chapters 1128 and 1129) that provides coverage to all public and private employees in the Commonwealth—an entitlement that was previously limited only to home-health workers. The law requires employers to provide employees with one hour of paid sick leave for every thirty hours worked, with an annual accrual cap of forty hours, all of which can be used within the year or carried over to the next (though annual use of paid sick leave is capped at forty hours). The law applies to all employers, regardless of size, subject to a phased implementation schedule. Paid sick leave obligations under the law commence on July 1, 2027, for employers with fifty or more employees; on January 1, 2028, for employers with between twenty-five and forty-nine employees; and on January 1, 2029, for employers with between one and twenty-four employees.

Beyond standard medical needs for the employee or employee’s family member, the law allows victims of domestic abuse, sexual assault, or stalking to use paid sick leave to relocate, obtain medical care or counseling, seek legal advice, or utilize other victim aid services. Notably, this “safe leave” can also be used if the employee’s family member is a victim.

The law contains numerous provisions that could create headaches for employers, including:

• Notice requirements are significantly limited. Employees are able to make requests in nearly any form, including verbally, and need only include anticipated duration “when possible.” The legislation allows employers to require notice of the need for sick leave, but only pursuant to a written policy that had been previously distributed to the employee seeking leave. Correspondingly, employees are required to “make a good faith effort” to provide notice and minimize disruptions where the need for leave is foreseeable.
• The law prohibits employers from requiring “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 under this article.” (Emphasis added).
  • However, paid sick leave of three or more days triggers a loosening of these restrictions, and permits an employer to require “reasonable documentation,” including a note from a treating medical provider.
  • Read together, these provisions indicate that sick leave of fewer than three days in duration is not subject to verification.
• The legislation also requires transfer of accrued leave when employees are transferred within an employer’s divisions or locations, and requires that employees be allowed to retain accrued sick leave through a change in ownership if the employer’s business is acquired by a different employer.
• The law provides no blanket carveout for employers with existing paid leave policies or collective bargaining agreements. Rather, only employers with policies or collective bargaining agreements that provide “an employee an amount of paid leave sufficient to meet the requirements of this section and that may be used for the same purposes and under the same conditions” are excused from providing additional leave.
• The law also defines “family member” broadly, including “any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.”

The law also brings new potential liability risks. It expressly permits a private right of action and requires a court to award a successful employee with twice the amount of any uncompensated leave, among other remedies. An aggrieved employee also has the option to file a charge with the Virginia commissioner of labor and industry, and the commissioner has the power to investigate and issue up to $500 in fines for each violation.

Paid Family and Medical Leave

With her signature, Governor Spanberger has also enacted legislation (HB1207/SB2 and Chapters 1093 and 981) providing a statewide Paid Family and Medical Leave entitlement. The law establishes a payroll-funded insurance program that provides qualifying employees with up to twelve weeks of paid leave for family and medical reasons at 80 percent of the employee’s average weekly wage, subject to a maximum weekly benefit cap set at 100 percent of the statewide average weekly wage. Paid Family and Medical Leave may be used for various qualifying family- and medical-related reasons, including:

• Bonding with a new child during the first year after the child’s birth, adoption, or foster placement;
• Care of a family member with a serious health condition;
• The employee’s own serious health condition;
• Care for a covered service member who is the employee’s next of kin or other family member;
• Attending to a qualifying exigency when a family member is on active duty, or has been notified of an impending call or order to active duty, in the Armed Forces; and
• Seeking safety services for the employee or a family member (up to 4 weeks of PFML benefits available for this purpose)

The program will be administered by the Virginia Employment Commission (which principally administers unemployment benefits), and will be funded by payroll contributions split between employers and employees. Under the funding structure, employers with eleven or more employees must pay at least 50 percent of the total required contribution amount into the Fund, and may deduct 50 percent from employees’ paychecks. Meanwhile, employers with ten or fewer employees are not required to pay the employer portion of the premiums. The amount of these contributions will be determined by the Virginia Employment Commission on October 1, 2027, and annually thereafter by October 1. That said, the fiscal impact statement accompanying the bill suggested that contributions of approximately 0.75 percent of total wages would be necessary to sustain the program, with increases likely required over time.

The law further specifies that leave may be taken intermittently and is job-protected, ensuring employees can return to their same or an equivalent position and that the employees retain pay, seniority, and benefits, including fringe benefits. This paid leave runs concurrently with other leave entitlements, such as federal Family and Medical Leave Act (FMLA) leave, or leave under a collective bargaining agreement. For employers that prefer to manage their own benefits, the law provides a provision for private plan “opt-outs,” which allows businesses to utilize a commission-approved private insurance plan if it provides benefits equal to or greater than the state program and does not cost the employee more than it would under the state plan.

The law also specifies that this paid leave cannot be waived by agreement, including by collective bargaining agreement. Furthermore, it specifies that no collective bargaining agreement entered into or renewed after January 1, 2027, may “diminish” any employee’s right to paid leave.

The program will officially begin collecting contributions on April 1, 2028, and begin benefit payouts on December 1, 2028.

Staying Informed

Ogletree Deakins’ Richmond office will continue to monitor developments and will provide updates on the Healthcare, Leaves of Absence, Pay Equity, Unfair Competition and Trade Secrets, Virginia, and Wage and Hour blogs as additional information becomes available.

In addition, information on Paid Sick Leave and Paid Family and Medical Leave is available on the Ogletree Deakins Client Portal. If these proposals are enacted, they will be covered in the Virginia Paid Sick Leave and Virginia Paid Family and Medical Leave law summaries. Snapshots and updates are available for all registered client users. Detailed information and templates are available for Premium and Advanced subscribers. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

J. Clay Rollins is a shareholder in the Richmond office of Ogletree Deakins.

Sebastian L. Brana is an associate in the Richmond office of Ogletree Deakins.

Sam Sylvester, an administrative assistant in the Richmond office of Ogletree Deakins, contributed to this article.

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