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In addition to the federal FMLA, Virginia employers need to be aware of state provisions. Virginia has leave provisions for employees who are crime victims, organ/bone marrow donation, paid sick leave for home health care workers, and voluntary paid leave insurance.
No eligibility criteria is noted in the law. The employee simply needs to be a victim of a crime.
Employees may take time off to be present at all criminal proceedings related to a crime against the employee. The law does not provide a quantity of time, but indicates that employers may limit the leave provided if it creates an undue hardship to the employer's business. An undue hardship is a significant difficulty and expense to a business and includes the consideration of the size of the business and the employer's critical need of the employee.
The law indicates that you are not required to compensate an employee while he or she is taking leave under this law.
Employees are to provide you with a copy of the form given to the employee by the law enforcement agency and, if applicable, a copy of the notice of each scheduled criminal proceeding.
You cannot refuse to hire or employ, to bar or discharge from employment, or to discriminate against an individual in terms, conditions, or privileges of employment because an employee exercises his or her right to leave.
Employers are covered by this law if they operate in Virginia and have 50 or more employees.
Employee eligibility
Employees are eligible to take the leave if they have, as of the date the leave begins:
Leave entitlement/qualifying reasons
Eligible employees may take:
The leave may not run concurrently with federal FMLA leave.
Benefit continuation/pay
Employers must maintain health benefit plan coverage for the duration of the organ donation leave in the same manner that coverage would have been provided if the eligible employee had continued in employment continuously for the duration of the organ donation leave.
If an eligible employee works on a commission basis, employers must pay the employee during any period of organ donation leave any commission that becomes due because of work the eligible employee performed before taking organ donation leave.
Job restoration
Employers must restore the employee's position or an equivalent one following the leave.
Notice
Employees must provide written physician verification to the employer that:
Effective July 1, 2021, employers with employees who provide personal care, respite, or companion services to an individual who receives consumer-directed services under the state plan for medical assistance services (Medicaid) will need to provide paid sick leave to those employees.
All employers with home health care workers.
Home health workers who work on average at least 20 hours per week or 90 hours per month. This excludes those who:
Employees begin accruing paid sick leave when employment begins. They accrue one hour of paid sick leave for every 30 hours worked. Employees who are exempt from the FLSA overtime requirements will be assumed to work 40 hours in each workweek for purposes of paid sick leave accrual unless their normal workweek is less than 40 hours, in which case paid sick leave accrues on the basis of that normal workweek.
Any unused paid sick leave must be carried over to the year following the year in which it was accrued, but employees may not accrue more than 40 hours of paid sick leave in a year, unless the employer allows for a higher limit.
Employers may front-load the paid sick leave, but it is unclear whether this means that employers would not be required to allow year-end carry-over, or simply allows employers to advance an amount of leave before the leave is accrued.
Employers may not require employees to find a replacement worker to cover the hours during leave.
Employers may not require employees to work an alternate shift to make up for the use of sick leave.
Eligible employees may take the paid leave for the following reasons:
Family members includes the following:
For paid sick leave of three or more consecutive work days, employers may require reasonable documentation that the paid sick leave has been used for a qualifying reason.
Employees on leave are compensated at the same hourly rate and with the same benefits, including health care benefits, as they normally earn during hours worked.
While the law does not specifically indicate job protection, employers are prohibited from taking a negative employment action, including termination, because an employee requested or took the leave. Other negative employment actions include discipline, threats, discriminate against, retaliation regarding an employee's compensation, terms, conditions, location, or privileges of employment.
Employees may request the paid sick leave orally, in writing, by electronic means, or by any other means acceptable to the employer. When possible, the request shall include the expected duration of the absence.
When the need for leave is foreseeable, employees must make a good faith effort to provide notice of the need for leave in advance and must make a reasonable effort to schedule the leave in a manner that does not unduly disrupt the employer’s operations.
Employers that require notice of the need to use paid sick leave, must provide a written policy that contains procedures for employees to provide notice. Employers that have not provided a copy of the written policy may not deny the leave based on noncompliance with the policy.
As of 7/1/22, employers may voluntarily establish a paid leave insurance benefit policy issued to employees to pay for the employees’ income loss due to the following reasons:
Under the law, family leave insurance may be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate group insurance policy purchased by an employer.
Individual certificates and enrollment forms may not be used in connection with a group family leave insurance policy unless they have been filed with the Insurance Commission.
Virginia Department of Labor and Industry
http://www.doli.virginia.gov/
Code of Virginia, §40.1-28.7:2 Victim leave
http://law.lis.virginia.gov/vacode/title40.1/chapter3/section40.1-28.7:2/
Code of Virginia, Title 40.1, Chapter 3, 40.1-337 through 40.1-33.12, Organ/bone marrow donation leave
Code of Virginia, §40.1-33.3 through 40.1-33.6 Paid sick leave
https://law.lis.virginia.gov/vacodefull/title40.1/chapter3/article2.1/
Related to family leave insurance:
Code of Virginia, §38.2-107.2 Private family leave insurance
https://law.lis.virginia.gov/vacode/title38.2/chapter1/section38.2-107.2/
Code of Virginia, §38.2-135 Classes of insurance companies may be licensed to write
https://law.lis.virginia.gov/vacode/title38.2/chapter1/section38.2-135/
Code of Virginia, §38.2-316 Policy forms to be filed with Commission; notice of approval or disapproval; exceptions.
https://law.lis.virginia.gov/vacode/title38.2/chapter3/section38.2-316/
Code of Virginia, §38.2-1800 Definitions
https://law.lis.virginia.gov/vacode/title38.2/chapter18/section38.2-1800/
Contacts
US Dept. of Labor, Wage & Hour Division
Regulations
29 CFR Part 825, “The Family and Medical Leave Act of 1993”