Virginia Poised to Expand Provisions for Paid Sick Leave and Paid Family Medical Leave

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Quick Hits

• Virginia Governor Spanberger is expected to sign legislation that would expand paid sick leave to all public and private employees.
• The paid sick leave legislation would mandate one hour of paid sick leave for every thirty hours worked, with an annual accrual cap of forty hours, and includes provisions that could create challenges for employers, such as limited notice requirements and transfer of accrued leave.
• The paid family and medical leave bills would establish 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 (House Bill (HB) 5 & Senate Bill (SB) 199)

HB5 and SB199 would amend Virginia’s narrow paid sick leave law—currently limited to home-health workers—into a broad mandate, expanding coverage to all public and private employees in the Commonwealth. The bills would require 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. Importantly, the companion bills apply to all employers, regardless of size.

The two bills contain numerous provisions that could create headaches for employers, including:

1. Notice requirements would be significantly limited. Employees would be able to make requests in nearly any form, including verbally, and would need only include anticipated duration “when possible.” The legislation would allow 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.
   1. Correspondingly, employees would be required to “make a good faith effort” to provide notice and minimize disruptions where the need for leave is foreseeable.

• The bills would prohibit 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 would trigger a loosening of these restrictions, and permit an employer to require so-called reasonable documentation, including a note from a treating medical provider.
  • Read together, these provisions strongly suggest that sick leave of fewer than three days in duration would not be subject to verification.

• The legislation would also require transfer of accrued leave when employees are transferred within divisions or locations, or during transfers between an employer’s divisions or locations, and even require 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 bills provide 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” would be excused from providing additional leave.

Beyond standard medical needs, the bills would allow 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.

The bills bring new potential liability risks. The law that the bills would amend already has an anti-retaliation provision prohibiting employers from discharging, disciplining, or discriminating against any employee for exercising their rights to paid sick leave under this section. However, the bills would increase risk for employers in two notable ways:

• First, the bills would expressly permit a private civil right of action, and require a court to award a successful employee with twice the amount of any uncompensated leave, among other remedies. Also, because the bills would significantly expand the scope of the law to apply to all employees (rather than only home health workers), employers could face the risk of civil liability where it did not previously exist.
• Second, an aggrieved employee would have the option to file a charge with the Virginia commissioner of labor and industry, and the commissioner would have the power to investigate and issue up to $500 in fines for each violation.

If signed into the law, the bills will take effect on July 1, 2027.

Paid Family and Medical Leave (HB1207 & SB2)

HB1207 and SB2 both recently passed the Virginia House of Delegates and Senate, respectively, with minor differences. A collective Paid Family Medical Leave bill is expected to be signed by Governor Spanberger in the short term. The bills would establish a payroll-funded insurance program, with contributions split between employers and employees, to be administered by the Virginia Employment Commission. Under the proposed funding structure, employers with more than ten employees would be permitted to deduct up to 50 percent of the required contribution directly from an employee’s wages. Meanwhile, employers with ten or fewer employees would be required to deduct 50 percent of the contribution required for employers with eleven or more employees, and would then not be required to submit any additional contribution. The program would provide 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.

The bills further specify that leave may be taken intermittently and would be job-protected, ensuring employees can return to their same or an equivalent position and that the employees would retain pay, seniority, and benefits, including fringe benefits. This paid leave would run 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 bill provides a provision for private plan “opt-outs,” which would allow 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 bills also specify that this paid leave cannot be waived by agreement, including by collective bargaining agreement. Furthermore, they specify that no collective bargaining agreement entered into or renewed after January 1, 2027, may “diminish” any employee’s right to paid leave.

Both chambers agree that the program would officially begin collecting contributions on April 1, 2028, and begin benefit payouts on December 1, 2028.

If signed into law, these paid sick leave and paid family and medical leave bills will likely present new challenges for employers.

Ogletree Deakins’ Richmond office will continue to monitor the progress of these bills, as well as implementation concerns, and will post updates on the Leaves of Absence and Virginia blogs, in the high likelihood that they are signed by Governor Spanberger.

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.

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.

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