Virginia Enacts Paid Sick Leave Law

Virginia enacted legislation (House Bill 5/Senate Bill 199) that will require nearly all private employers, as well as state and local governments, to provide paid sick leave to their employees. The timing of when this law goes into effect depends on employer size: 

• Employers with at least 50 employees are required to comply beginning July 1, 2027; 
• Employers with at least 25 employees are required to comply beginning January 1, 2028; and 
• Employers with at least one employee are required to comply beginning January 1, 2029. 

Accrual of Paid Sick Leave

Paid sick leave begins to accrue at the commencement of employment. All covered employees will accrue one hour of paid sick leave for every 30 hours worked. Paid sick leave carries over to the following year but an employee cannot accrue or use more than 40 hours of paid sick leave in a single year, unless the employer selects a higher limit. Employees who are exempt from the overtime requirements of the Fair Labor Standards Act are assumed to work 40 hours per workweek for purposes of accruing paid sick leave, unless their normal workweek is less than 40 hours. Employees who are compensated on a fee-for-service basis will accrue paid sick leave in accordance with regulations that the commissioner of the Virginia Department of Labor and Industry has been directed to promulgate by July 1, 2027. 

Employers can satisfy the accrual requirements of the law by electing to provide all paid sick leave that an employee is expected to accrue in a year at the beginning of the year. If an employer grants 40 hours of paid sick leave to an employee at the beginning of a year, they avoid having to carry over unused paid sick leave from one year to the next.

An employer with a paid leave policy, such as a paid time off policy, that provides an employee an amount of paid leave sufficient to meet the requirements of the law and that can be used for the same purposes and under the same conditions as the law, is not required to provide additional paid sick leave to any employee who is eligible for paid leave under the employer’s policy.

Under the law, employees transferred to other divisions, entities, or locations with the same employer, are entitled to maintain their paid sick leave accrual. An employee who separates from an employer and is rehired within 12 months by the same employer shall have all previously accrued, unused paid sick leave reinstated and can use it and any additional accrued paid sick leave at the recommencement of their employment. Successor employers are required to maintain the paid sick leave accruals of any employee who remains employed by them. 

The new law does not require employers to reimburse employees for any accrued but unused leave at the end of employment. 

The law does not apply or has limited application to:

• Employees and employers covered by Virginia Code § 40.1-33.3 (home health workers);
• Any employee licensed, registered, or certified by a health regulatory board within the Department of Health Professions or employed by a facility licensed by the Department of Health, University of Virginia Medical Center, or Virginia Commonwealth University Health System Authority and who works less than 30 hours per week or on an as-needed basis regardless of the number of hours worked per month; and
• Employers with employees covered by or receiving benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, that are party to an existing, bona fide collective bargaining agreement in effect on July 1, 2027 with respect to employees in the bargaining unit until the expiration of the collective bargaining agreement or December 31, 2030, whichever is earlier.

Use of and Rate of Pay for Paid Sick Leave

The paid sick leave law requires employees to be compensated while on leave at their regular rate of pay as defined by Virginia Code. § 40.1-29.3(B). The rate of pay for paid sick leave cannot be less than the Virginia minimum wage without reduction for any tip credit the employer could otherwise claim.

Employees are permitted to use paid sick leave for the following reasons:

• An employee’s own or their family member’s need for medical diagnosis, care, or treatment for mental or physical illness, injury, or health condition;
• An employee’s or family member’s need for preventative medical care;
• Absence due to domestic violence, sexual assault, or stalking provided it is for the employee to seek or obtain medical care, mental health care, counseling, legal services, relocation or securing of an existing home, or other victim services for the employee or a family member.

A “family member” includes:

• Regardless of age, a biological child, adopted or foster child, stepchild, legal ward, child to whom the employee stands in loco parentis, or an individual to whom the 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 married or domestically partnered;
• A grandparent, grandchild, or sibling, whether of a biological, foster, adoptive, or step relationship, of an employee or the employee’s spouse or domestic partner;[1]
• An individual for whom an employee is responsible for providing or arranging health or safety-related care, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment or ensuring the person is safe following domestic violence, sexual assault, or stalking; or
• Any other individual related by blood or affinity whose close association with an employee is equivalent of a family relationship. 

Employees who wish to use paid sick leave must be permitted to do so upon request. Such requests may be made by any means acceptable to the employer and, “when possible,” must include the expected duration of the absence. When the use of leave is foreseeable, employees are required to make a good-faith effort to provide advance notice of the need for leave and to make a reasonable effort to schedule the use of paid sick leave in a manner that does not “unduly disrupt the operations of the employer.” An employer that requires notice of the need to use leave must provide its employees with a written policy explaining the procedures for its employees to provide the notice. An employer is prohibited from denying a paid sick leave request based on policy noncompliance if a copy of the written policy has not been provided to the employee.

Employees who request paid leave cannot be required as a condition of taking leave to search for or find a replacement worker to cover the hours during which they are using the leave. Nor can an employer require an employee to work an alternative shift to make up for the use of the leave.

Paid sick leave is used in hourly increments unless the employer allows it to be taken in smaller increments.

Documentation on Use of Paid Sick Leave

Employers are prohibited from requiring that an employee disclose details of their or their family member’s health information or details of domestic violence, sexual assault, or stalking as a condition of providing paid sick leave. Any such information that an employer does have about the employee or a family member’s health, domestic violence, sexual assault, or stalking must be treated as confidential and cannot be disclosed except to the employee or with the employee’s consent. 

If an employee takes or requests paid sick leave for three or more consecutive workdays, the employer may require reasonable documentation that the paid sick leave has been used for a purpose authorized by the statute. If the leave is being taken for an employee’s own health or that of an employee’s family member, documentation signed by a health care professional indicating that the paid sick leave is necessary is deemed reasonable documentation. 

If the paid sick leave is being used due to domestic violence, sexual assault, or stalking, the following documents shall be considered reasonable documentation: a police report; a court document indicating the employee is involved in legal action relating to domestic violence, sexual assault, or stalking; documentation from a victim services advocate, the employee’s attorney, a member of the clergy, or a health care professional stating that the employee is or was receiving services related to domestic violence, sexual assault, or stalking; or the employee’s own written statement that the use of paid sick leave is for one of these purposes.

Notice to Employees and Recordkeeping Requirements

Employers will be required to notify employees of their rights under this new law in writing and through posting, including the right to file a complaint or bring a civil action for violations of the law. 

Employers will also be required to establish and maintain recordkeeping systems for the use and accrual of paid sick leave and must maintain these records for three years. Employers must ensure the confidentiality of any protected health information or information regarding domestic violence, sexual assault, or stalking regarding their employees or the family members of employees. 

The commissioner of Labor and Industry is tasked with promulgating regulations detailing these requirements.

Enforcement and Retaliation Prohibitions

Under the new law, employers are further prohibited from retaliating against an employee for requesting or using their paid sick leave benefits; for alleging a violation of the statute; for participating in an investigation, hearing, or proceeding or cooperating with or assisting the commissioner of Labor and Industry in an investigation of an alleged violation of the statute; or for informing any individual of their potential benefits under the statute. 

Employers are further prohibited from interfering with, restraining, denying the exercise of, or attempting to deny the exercise of paid sick leave and employers are prohibited from using an absence-control policy to count paid sick leave as an absence that may lead to any adverse action.

The commissioner of Labor and Industry will promulgate regulations related to the enforcement of the statute including the receipt of complaints for noncompliance and timely investigation of such complaints. Any person alleging a violation of the statute will have one year from the date they knew or should have known of the potential violation to make a complaint to the commissioner. The commissioner is required to determine a reasonable time for an employer to correct an alleged violation without civil monetary penalty or other action and give employers the opportunity to request an informal conference if the commissioner determines a violation has occurred. 

Employers that knowingly violate the statute are subject to a civil penalty of up to $150 for the first violation; $300 for subsequent violations within two years; and $500 for successive violations. The commissioner or the state attorney general may commence administrative proceedings or a civil action against the employer for legal or equitable relief.

Finally, the statute provides employees with a private right of action without requiring that they first file an administrative complaint or exhaust administrative remedies. An employee who brings a civil action may seek and be awarded damages including:

• Double the amount of any uncompensated sick leave;
• Double the amount of any actual damages suffered;
• Injunctive relief;
• Other legal or equitable relief including reinstatement;
• Compensation for lost wages, benefits, and other remuneration with interest; and
• Reasonable attorneys’ fees and costs

Employees have two years to bring a civil action from the date the alleged violation occurred or the date they should have known of a violation.

What Can Employers Do Now?

Employers can update their leave policies and begin preparing notices to comply with this new Virginia law. Employers that already maintain paid leave policies should consider whether those policies meet the requirements of the new law, and if not, consider revision of those policies.