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 West 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 West Virginia does not have its own family and medical leave law, it does require employers to give employees time off for military service, voting, and jury duty.
This article provides an overview of your right to time off from work in West 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 broader 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 wider 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, West Virginia 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.)
Many states, including West Virginia, 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. Employees who are members of the state’s organized militia in active state service are entitled to the same leave and reinstatement rights guaranteed by USERRA.
West Virginia law gives employees the right to take time off work, without fear of retaliation, for the civic responsibility of voting. Employers must let employees take up to three hours off work, with pay, to vote. However, employees who already have at least three hours off duty when the polls are open are not entitled to voting leave. Employers in certain industries, including transportation and communication, may alter employee schedules so their time off doesn’t impair essential operations, but they must still give employees sufficient and convenient time off to vote. Employees must give at least three days' notice of the need for voting leave.
Employers must also allow employees to take time off to serve on a jury. Employers may not threaten or discriminate against employees for serving on a jury, nor may they cut an employee’s regular rate of pay due to jury service. Employers may not require an employee to work before or after jury service, if these extra hours would require the employee to work overtime or past the usual quitting time.
Time off to serve on a jury 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.