Family and Medical Leave Act in Virginia: Eligibility and Protections

If you work in Virginia and need time off for your own serious illness, a new child, or a family member’s medical crisis, your main protection comes from the federal Family and Medical Leave Act, which gives eligible employees up to 12 weeks of unpaid, job-protected leave each year.¹ Virginia adds its own protections on top: unpaid leave for organ and bone marrow donors, pregnancy accommodations at employers as small as five people, and a state paid leave program scheduled to begin paying benefits on December 1, 2028.²

Who Is Eligible

Three conditions decide whether you can use FMLA. All three have to be met.³

Your employer has to have 50 or more employees on the payroll for 20 or more workweeks in the current or prior calendar year. Private businesses, nonprofits, and public agencies all count.
You need at least 12 months with that employer (not necessarily consecutive) and at least 1,250 hours of actual work during the 12 months right before leave starts.
Your employer must have at least 50 employees working within 75 miles of your worksite. A national company with thousands of workers still won’t trigger FMLA if your location and the ones near it add up to fewer than 50.

One narrow exception touches high earners. If you’re salaried and in the top 10 percent of pay within 75 miles of your worksite, your employer can label you a “key employee” and decline to restore your job if bringing you back would cause substantial and grievous economic injury to the business.⁴ The employer has to tell you in writing about that status when you request leave or when leave begins, whichever comes first. You still get the leave and continued health coverage; only the guaranteed job restoration is at risk.

What You Can Take Leave For

FMLA covers five situations:¹

The birth of your child, or placement of a child with you through adoption or foster care. Bonding leave has to be used within 12 months of birth or placement.⁵
Caring for your spouse, child, or parent with a serious health condition.
Your own serious health condition when it makes you unable to do your job.
Qualifying exigencies tied to a family member’s active-duty military deployment, like arranging childcare or attending military briefings.
Caring for a covered servicemember who is a spouse, child, parent, or next of kin, with a serious injury or illness. This one runs up to 26 workweeks in a single 12-month period rather than 12.⁶

The definition of “child” is broader than it looks. A biological or legal relationship isn’t required. If you’ve taken on day-to-day parenting responsibilities for a child, that counts as an “in loco parentis” relationship, and you can use FMLA for that child’s birth, placement, or serious health condition. If your employer asks for proof, a written statement explaining the relationship is enough.⁷

Serious Health Condition

Not every illness qualifies. A cold or a 24-hour stomach bug doesn’t. A serious health condition generally means inpatient care at a hospital or continuing treatment by a healthcare provider. Continuing treatment includes:

More than three consecutive calendar days of incapacity plus at least two in-person provider visits, or one visit followed by a prescribed regimen like antibiotics or physical therapy.
Pregnancy or prenatal care.
A chronic condition such as asthma, diabetes, or epilepsy that requires periodic visits, continues over time, and may cause episodes when you cannot work.
A permanent or long-term condition like Alzheimer’s or a terminal illness, as long as you’re under a provider’s supervision.
Multiple treatments, such as chemotherapy or dialysis, or restorative surgery after an injury.

Over-the-counter medicine and self-care without a provider visit don’t meet the standard.⁶

Taking Leave in Blocks or Reduced Hours

You don’t have to take all 12 weeks at once. When it’s medically necessary, you can take FMLA in separate blocks or reduce your weekly hours. Chemotherapy, weekly physical therapy, and flare-ups of a chronic condition are typical examples.⁸

Your employer can track intermittent leave in the smallest time increment it uses for other leave, as long as that increment never exceeds one hour.⁹ For planned treatment, make a reasonable effort to schedule around your employer’s operations. The employer can also temporarily reassign you to a different role with equivalent pay and benefits that better fits the recurring absences.

Bonding leave for a new child is different. You can take it intermittently only if your employer agrees. If the child has a serious health condition, though, intermittent leave is your right because the medical need drives it.⁸

Pay, Vacation, and Health Insurance

FMLA leave is unpaid, but you can use accrued paid vacation, personal leave, or sick leave at the same time, and your employer can require you to.¹ That paid time runs concurrently with FMLA, so two weeks of vacation doesn’t buy you two extra weeks of protected leave. Many Virginia employers specify which paid leave gets drawn down first, so check your handbook.

Your group health insurance has to continue on the same terms as if you were still working. You keep paying your share of the premium. If your payment is more than 30 days late, the employer can drop coverage after mailing you a written warning at least 15 days before the termination date.¹⁰ Even if coverage lapses for non-payment, your employer must restore you to equivalent coverage when you return, with no new waiting periods or pre-existing condition exclusions.

Notice and Medical Certification

For foreseeable leave like planned surgery, a due date, or a scheduled treatment series, give your employer at least 30 days’ advance notice. If 30 days isn’t possible, give notice as soon as you can. For sudden events, notify your employer as soon as practicable using whatever call-in procedures the workplace normally requires.¹¹ In an emergency, notice can wait until the situation stabilizes, and a spouse or family member can call on your behalf.

Expect to complete a medical certification form. Form WH-380-E covers your own condition; Form WH-380-F is for a family member’s.¹² A healthcare provider fills in the medical details, including the nature of the condition and the expected duration. For ongoing conditions, your employer can request recertification no more than once every 30 days, and only in connection with an actual absence, though a changed medical picture or a suspicious absence pattern can shorten that interval.

Employer Deadlines and Returning to Your Job

Once you give notice, your employer has five business days to send a written Notice of Eligibility and Rights and Responsibilities telling you whether you meet the hours and tenure tests and what’s expected during leave. After you submit your medical certification, the employer has another five business days to issue a Designation Notice confirming whether the time counts against your FMLA.¹³ Missing those deadlines can itself be interference with your rights.

When you come back, you’re entitled to your old job or one that is virtually identical in pay, benefits, schedule, and conditions.¹⁴ “Equivalent” is a strict standard: same duties and responsibilities, same shift or an equivalent schedule, same worksite or one close enough that your commute doesn’t meaningfully increase, and the same shot at bonuses and raises.¹⁵ Any unconditional pay increases that took effect while you were out, like a cost-of-living bump, apply to your returning salary. You keep every benefit you had accrued before leave, though you don’t accrue new seniority or benefits during unpaid time.

Your employer can require a fitness-for-duty certification before letting you return, but only if that requirement was spelled out in the Designation Notice and applied consistently to other employees in similar situations.

If Your Employer Interferes or Retaliates

It is illegal under federal law for your employer to interfere with your right to take FMLA leave, deny a valid request, or retaliate against you for using leave or filing a complaint.¹⁶ Retaliation includes firing, demotion, cutting your hours, discipline tied to the leave, or conditions designed to push you out after you return. Subtler patterns count too, like coming back to find yourself quietly excluded from meetings or passed over for a promotion you had been in line for.

You have two routes. You can file a confidential complaint with the U.S. Department of Labor’s Wage and Hour Division by calling 1-866-487-9243.¹⁷ Or you can file a private lawsuit. The deadline is two years from the last violation, or three years if the violation was willful.¹⁸

If you win, you can recover lost wages and benefits, interest, and an equal amount in liquidated damages, which effectively doubles the recovery. A court that finds a violation must also order the employer to pay your reasonable attorney’s fees and costs.¹⁹ Liquidated damages can be reduced if the employer convinces the court it acted in good faith, which is a hard argument when the facts show clear interference or retaliation.

Virginia Protections Beyond FMLA

Several Virginia laws fill gaps the federal rules leave open.

Organ and Bone Marrow Donation Leave

Virginia employers with 50 or more employees must provide unpaid leave for organ and bone marrow donation.²⁰ Organ donors get up to 60 business days in a 12-month period; bone marrow donors get up to 30.²¹ Eligibility mirrors FMLA: 12 months of employment and 1,250 hours in the prior year, with a physician’s note confirming you’re a donor and the donation is medically needed.

Pregnancy Accommodations at Smaller Employers

Virginia requires reasonable accommodations for pregnancy, childbirth, and related conditions at employers with as few as five employees, far below FMLA’s 50-employee floor.²² Accommodations can include modified schedules, more frequent breaks, temporary light duty, telework, and leave to recover from childbirth, unless the employer can show undue hardship. The federal Pregnant Workers Fairness Act offers similar protections starting at 15 employees.²³ For pregnant workers in Virginia, the lower state threshold matters most at the smallest workplaces.

Paid Family and Medical Leave Starting in 2028

Virginia became the first southern state to enact a paid family and medical leave program. The Virginia Employment Commission will run it, funded by payroll contributions shared between employers and employees. Contributions begin on April 1, 2028, and benefits become available on December 1, 2028.²

Once benefits launch, eligible workers will be able to receive up to 12 weeks of paid time off for the birth or placement of a child, recovery from a serious health condition, caring for a family member with a serious health condition, military family needs, and situations involving domestic violence, sexual assault, or stalking. Until then, FMLA leave in Virginia remains unpaid, and watching for VEC guidance on contribution rates and eligibility details is worth doing as implementation approaches.

1
Office of the Law Revision Counsel. 29 USC 2612 – Leave Requirement
2
Virginia Employment Commission. First in the South: Virginia Enacts Paid Family and Medical Leave
3
Office of the Law Revision Counsel. 29 USC 2611 – Definitions
4
U.S. Department of Labor. Family and Medical Leave Act Advisor – Key Employee
5
U.S. Department of Labor. Fact Sheet 28Q: Taking Leave from Work for the Birth, Placement, and Bonding with a Child under the FMLA
6
U.S. Department of Labor. Family and Medical Leave Act
7
U.S. Department of Labor. Fact Sheet 28B: Using FMLA Leave When You Are in the Role of a Parent to a Child
8
U.S. Department of Labor. FMLA Frequently Asked Questions
9
U.S. Department of Labor. Fact Sheet 28I: Counting Leave Use under the Family and Medical Leave Act
10
U.S. Department of Labor. Family and Medical Leave Act Advisor – Employee Failure to Pay
11
eCFR. 29 CFR 825.303 – Employee Notice Requirements for Unforeseeable FMLA Leave
12
U.S. Department of Labor. FMLA Forms
13
eCFR. 29 CFR 825.300 – Employer Notice Requirements
14
Office of the Law Revision Counsel. 29 USC 2614 – Employment and Benefits Protection
15
eCFR. 29 CFR 825.215 – Equivalent Position
16
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts
17
U.S. Department of Labor. How to File a Complaint
18
U.S. Department of Labor. Family and Medical Leave Act Advisor – Filing a Complaint or Lawsuit
19
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
20
Virginia Code Commission. Virginia Code 40.1-33.7 – Definitions
21
Virginia Code Commission. Virginia Code 40.1-33.8 – Organ Donation Leave
22
Virginia Code Commission. Virginia Code 2.2-3909 – Causes of Action for Failure to Provide Reasonable Accommodation
23
U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act