FMLA - Virginia

Employee eligibility

No eligibility criteria is noted in the law. The employee simply needs to be a victim of a crime.

Leave entitlement

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.

Pay while on leave

The law indicates that you are not required to compensate an employee while he or she is taking leave under this law.

Notice

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.

Job restoration

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.

Employer coverage

All employers with home health care workers.

Employee eligibility

Home health workers who work on average at least 20 hours per week or 90 hours per month. This excludes those who:

• Are licensed, registered, or certified by a health regulatory board within the Department of Health Professions;
• Are employed by a hospital licensed by the Department of Health; and
• Work, on average, no more than 30 hours per month.

Leave entitlement

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.

Reasons for leave

Eligible employees may take the paid leave for the following reasons:

• Mental or physical illness, injury or health condition of an employee or family member;
• Need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of an employee or family member; or
• Preventive medical care for an employee or family member.

Family members includes the following:

• Regardless of age, a biological child, adopted or foster child, stepchild, legal ward, child to whom the employee stands in loco parentis, or individual to whom an employee stood in loco parentis when the individual was a minor;
• A biological parent, foster parent, stepparent, adoptive parent, legal guardian of an employee or an employee’s spouse, or individual who stood in loco parentis to an employee when the employee or employee’s spouse was a minor child;
• An individual to whom an employee is legally married under the laws of any state;
• A grandparent, grandchild, or sibling, whether of a biological, foster, adoptive, or step relationship, of an employee or the employee’s spouse;
• An individual for whom an employee is responsible for providing or arranging care, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment; or
• Any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.

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.

Benefits continuation/pay

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.

Job restoration

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.

Notice

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.