In addition to the leave provided by your employer’s discretionary policies on vacation time, sick leave, personal days, or paid time off (PTO), you may have a legal right to take time off work for specific reasons under federal and Virginia laws. For example, if you are caring for an ailing family member or recovering from childbirth, you may have a right to leave under the federal Family and Medical Leave Act (FMLA). Although Virginia does not have its own family and medical leave law, it does require employers to give employees time off for military service and jury duty.
This article provides an overview of your right to time off from work in Virginia. For more information, see our page on employee leave rights.
The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of unpaid leave per year to care for a seriously ill family member (spouse, parent, or child), recuperate from their own serious health conditions, bond with a new child, or handle certain practical matters arising from a family member’s military service. The FMLA also requires employers to give employees up to 26 weeks off to care for a family member who suffered or exacerbated a serious illness or injury while serving in the military. (For purposes of this military family leave provision only, employees may take leave to care for a wider set of family members, including siblings, grandparents, and cousins, if they are next of kin to an injured service member.)
The FMLA applies to employers in all states with at least 50 employees. Employees are eligible only if they have worked for the employer for at least 12 months and have worked 1,250 hours in the 12 months before taking leave. (Learn much more about your rights under the FMLA at our Taking Family and Medical Leave page.)
Some state laws provide additional family and medical leave rights. For example, some state laws apply to smaller employers, provide for more leave, or allow employees to take leave for a broader set of family members than the FMLA. Some states also give leave for other purposes, such as time off to handle the effects of domestic violence, to recover from pregnancy and childbirth, to attend parent-teacher conferences and other school events, and so on. However, Virginia is one of the states that does not offer any additional family or medical leave rights beyond what the federal FMLA allows.
Another federal law, the Unformed Services Employment and Reemployment Rights Act (USERRA) gives eligible employees the right to be reinstated to their jobs after taking up to five years off for service in the U.S. military. (Find out all about USERRA in Nolo's article, Taking Military Leave.) Employers may not discriminate against employees based on their military service. And, employees may be fired only for good cause for a period of up to one year after they return from service, even if they would otherwise work at will. (See Employment At Will: What Does It Mean? to learn more.)
The laws of many states extend similar rights to employees who serve in the state’s military, including the right to take time off from work and to be reinstated afterwards. In Virginia, members of the Virginia National Guard, naval militia, or state defense force may take unpaid leave when called to active duty by the governor. They may not be required to use vacation, PTO, or other paid leave for this time off. As long as the employee returns to work within five years, he or she is entitled to reinstatement to the same position or one with the same pay, status, and seniority. If the employee’s previous position doesn’t exist, the employer must provide a comparable position, unless the employer’s circumstances have changed in a way that makes reemployment unreasonable. Employers may not discriminate against employees based on their membership in the state’s military forces.
Although the laws of most states give employees the right to take time off to vote, Virginia does not have such a law.
Virginia law does, however, require employers to give employees time off to serve on a jury. Employees may not be subjected to any adverse personnel action because of their jury duty, nor may they be required to use their vacation or sick leave. Employees are required to give the employer reasonable notice of jury duty. Employees who have spent at least four hours on jury duty may not be required to start a shift after 5 p.m. that day or before 3 a.m. the following morning.
This time off is unpaid. However, special rules apply to exempt employees. Under federal law, employers typically cannot deduct an exempt, salaried employee’s pay for time spent serving on a jury, unless the employee did no work for the entire week. For more information, see our article on pay docking.