Family and Medical Leave in Virginia

Like employers in all other states, employers in Virginia are subject to the federal Family and Medical Leave Act (FMLA), which allows eligible employees to take unpaid leave, with the right to reinstatement, for certain reasons.

In addition, many states have their own laws that require employers to provide time off for family and medical reasons. In Virginia, employees have only the rights guaranteed by the FMLA, with one exception for pregnancy-related conditions discussed below.

Federal FMLA Rights

Who Is Covered?

Virginia employers must comply with the FMLA if they have at least 50 employees for at least 20 weeks in the current or previous year.

Employees may take FMLA leave if:

• they have worked for the company for at least a year
• they worked at least 1,250 hours during the previous year, and
• they work at a location with at least 50 employees within a 75-mile radius.

Reasons for Leave

FMLA leave is available if an employee needs time off to:

• recuperate from a serious health condition
• care for a family member with a serious health condition
• bond with a new child
• handle qualifying exigencies arising out of a family member's military service, or
• care for a family member who suffered a serious injury during active duty in the military. (You can find out more about these last two types of leave for family members of those serving in the military in Nolo's article Military Family Leave for Employees.)

How Much Leave Is Available?

Virginia employees may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies. This leave renews every 12 months, as long as the employee continues to meet the eligibility requirements set out above.

Employees may take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.

However, this leave is a per-injury, per-service member entitlement. Unless the same family member is injured again, or another family member suffers an injury while on active duty, an employee may not take an additional leave for this purpose.

Leave and Reinstatement Rights

Employees are entitled to continue their health insurance while on leave, at the same cost they must pay while working. Although FMLA leave is unpaid, employees may be allowed (or required) to use their accrued paid leave during FMLA leave.

When an employee's FMLA leave ends, the employee is entitled to be reinstated to the same or an equivalent position, with a few exceptions.

Pregnancy Leave Rights Under the Virginia Human Rights Act

A state law known as the Virginia Human Rights Act (VHRA) requires employers with five or more employees to provide reasonable accommodation to employees for pregnancy, childbirth, or a related medical condition. "Leave to recover from childbirth" is one example listed in the law. (Va. Code Ann. § 2.2-3909(A)-(B)(1).)

That means if your employer isn't covered by the FMLA because it has fewer than 50 employees, you might still have leave rights under the VHRA. Of course, your employer will also likely offer some amount of leave (paid or unpaid) for pregnancy-related conditions.

If You Need Help

If you think you might need FMLA leave, you should inform your manager and/or HR department right away. Get a copy of the company's FMLA policy and find out what forms you'll need to complete.

The FMLA imposes notice and paperwork requirements on both employees and employers, so it's important to act quickly.

You can find out more about the FMLA in Nolo's article Taking Family and Medical Leave and Nolo's book, The Essential Guide to Family and Medical Leave, by Lisa Guerin and Deborah C. England.