Virginia FMLA: Eligibility, Leave Rights, and State Add-Ons

If you work in Virginia, your family and medical leave rights come almost entirely from the federal Family and Medical Leave Act, which gives eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a serious health condition, a new child, or other qualifying family events.¹ Virginia has no broad state FMLA of its own yet, though a paid family and medical leave insurance program signed in 2026 will start paying benefits in 2029. Until then, a few Virginia statutes fill specific gaps for organ donors, crime victims, and state employees.

Who Qualifies

Three things have to line up before you can use FMLA leave: your employer must be covered, you must have enough time with them, and you must have enough coworkers nearby.

Private employers are covered when they had 50 or more employees for at least 20 workweeks in the current or previous calendar year. Public agencies and public or private elementary and secondary schools are covered no matter how many people they employ.²

You personally must have worked for the employer for at least 12 months and logged at least 1,250 hours of actual work in the 12 months before your leave begins.³ The 12 months do not have to be consecutive, but a break of more than seven years generally will not count unless it was for military service under USERRA or covered by a written rehire agreement.⁴

Finally, your employer must have at least 50 employees within 75 miles of your worksite. Work at a small satellite office 80 miles from the nearest company hub, and you can be shut out even if the company has thousands of employees elsewhere.²

Reasons You Can Take Leave

FMLA is not general-purpose time off. The statute lists the only qualifying reasons:⁵

The birth of your child, or placement of a child with you through adoption or foster care, and bonding within the first 12 months.
Caring for your spouse, child, or parent with a serious health condition.
Your own serious health condition that makes you unable to do your job.
A qualifying exigency when your spouse, child, or parent is on covered active duty or has been called up, such as arranging childcare, handling finances, or attending military briefings.

Military Caregiver Leave

A separate category runs longer. If you are the spouse, child, parent, or next of kin of a current servicemember or a veteran discharged within the previous five years who has a serious injury or illness, you can take up to 26 workweeks of leave in a single 12-month period to provide care. That 26-week entitlement is a ceiling that includes any other FMLA leave you took in the same period. If you already used 4 weeks for your own health condition, you have 22 weeks left for caregiver leave.⁶

How Much Leave and Taking It in Pieces

For most qualifying reasons, you get a total of 12 workweeks in a 12-month period.¹ The leave is unpaid unless your employer offers paid leave or you choose to substitute accrued vacation, sick, or personal time.

You do not have to take all 12 weeks at once. When a health condition or treatment schedule requires it, you can take leave in shorter blocks or work a reduced schedule. Intermittent leave for a serious health condition requires medical necessity.⁷ You should try to schedule appointments to minimize disruption. Your employer can temporarily move you to a different role with equivalent pay and benefits if that fits a recurring leave schedule better.⁸

Bonding leave for a newborn or newly placed child works differently. You can only take it intermittently if your employer agrees, and it expires 12 months after the birth or placement. If the child has a serious health condition, intermittent leave for that condition falls under the standard medical-necessity rules and does not need employer approval.⁸

Getting Your Job and Health Insurance Back

When you return from FMLA leave, your employer has to put you back in your original job or one that is virtually identical in pay, benefits, duties, shift, location, and working conditions.⁹ Your employer cannot demote you, cut your pay, or shift you to a less desirable position because you took leave.

While you are out, your employer must keep your group health insurance in place on the same terms as if you were still working. If premiums rise across the board during your absence, you pay the new rate too, but no more than what active employees pay. On unpaid leave, your employer must give you advance written notice about how and when to pay your share.¹⁰

The Key Employee Exception

There is one narrow carveout from job restoration. A key employee is a salaried worker in the highest-paid 10 percent of employees within 75 miles of the worksite. If restoring you would cause substantial and grievous economic injury to the employer’s operations, the employer can refuse reinstatement. But the employer must tell you in writing at the time you request leave that you qualify as a key employee and explain what that could mean; if it skips that notice, it loses the right to deny restoration.¹¹ Even when the exception applies, your health insurance continues during leave, and you can still request reinstatement at the end of your leave, forcing the employer to reassess whether the economic-injury standard is really met.

How to Request Leave

When you can see the need coming, such as a scheduled surgery, an expected birth, or a planned adoption, give your employer at least 30 days’ notice. When the need is unexpected, notify your employer as soon as practicable.¹²

Your employer can ask for medical certification to support the request. The Department of Labor publishes Form WH-380-E for your own serious health condition and Form WH-380-F for a family member’s condition. Both ask your provider to describe when the condition began, how long it is expected to last, and the relevant medical facts.¹³ Using those specific forms is optional, but they cover what most employers need. Within five business days of your notice, the employer must give you a Notice of Eligibility and Rights & Responsibilities telling you whether you qualify and what documentation you owe.¹⁴ After reviewing your certification, the employer issues a Designation Notice confirming whether the leave counts against your FMLA entitlement.¹⁵

If the employer has a good-faith reason to doubt your certification, it can require a second opinion from a different provider at its expense, and that provider cannot be someone who works for the employer regularly. If the first and second opinions conflict, a third opinion from a mutually agreed provider is final and binding.¹⁶

How Your Leave Year Is Measured

Your 12 weeks are counted against a 12-month period, but employers pick how to define that period. It can be the calendar year, a fixed period like a fiscal year or your anniversary date, a rolling year measured forward from your first day of leave, or a rolling year measured backward from each day you take leave. The rolling-backward method is the one most employers use because it prevents stacking leave at the end of one year and the start of the next. Whatever method your employer picks, it must apply consistently to all employees. If the employer never formally chose a method, it must use whichever one gives you the most leave.¹⁷

Virginia-Specific Leave on Top of FMLA

Federal FMLA is the foundation, and Virginia adds a few protections for situations it does not reach.

Organ and Bone Marrow Donation

Virginia employers with 50 or more employees must provide unpaid leave for workers who donate an organ or bone marrow. To qualify, you must have worked for the employer for at least 12 months and logged at least 1,250 hours in that time, matching FMLA’s own thresholds.¹⁸ Organ donors get up to 60 business days of unpaid leave in a 12-month period; bone marrow donors get up to 30 business days.¹⁹

Crime Victim Leave

Every Virginia employer, regardless of size, must let employees who are crime victims take unpaid time off to attend related criminal proceedings, from the suspect’s initial appearance through sentencing and post-conviction hearings. You have to give your employer the victim-notification form from law enforcement and copies of the hearing notices. An employer can limit the leave only when your absence would create an undue hardship, judged by the employer’s size and need. Firing, refusing to hire, or otherwise punishing you for using this leave is prohibited.²⁰

State Employees and the VSDP

State employees in the Virginia Retirement System have access to the Virginia Sickness and Disability Program, which replaces income for workers who cannot work because of illness, injury, surgery, pregnancy, or a chronic condition.²¹ It covers sick leave, short-term disability, and long-term disability, and it runs alongside any federal FMLA leave the employee also qualifies for.²²

Paid Family and Medical Leave Is Coming

In April 2026, Governor Spanberger signed legislation creating a statewide paid family and medical leave insurance program administered by the Virginia Employment Commission. Payroll premium contributions, split between employers and employees, begin in April 2028, and benefit payments start in January 2029.

Once benefits begin, covered workers can receive up to 12 weeks of paid leave per benefit year. The weekly benefit equals 80 percent of the employee’s average weekly wage, capped at 100 percent of the statewide average weekly wage, with the cap adjusted annually.²³

Qualifying reasons track federal FMLA and go further. The program covers your own serious health condition, care for a family member with a serious health condition, bonding with a new child, safety needs tied to domestic violence or stalking, and care for a covered servicemember. The definition of family is broader than the federal spouse-child-parent triad; it can include anyone whose close association with you is the equivalent of a family relationship. Self-employed workers can opt in.²⁴

If Your Employer Violates Your Rights

If your employer fires you for taking FMLA leave, denies leave you were entitled to, or retaliates against you for requesting it, you have two paths. You can file a complaint with the Department of Labor’s Wage and Hour Division, which investigates and may negotiate corrective action. Or you can sue directly in federal or state court. Filing a DOL complaint first is not required.

In a lawsuit, a court can award the wages and benefits you lost, plus interest. On top of that, the FMLA presumes you get an equal amount in liquidated damages, effectively doubling your recovery. The employer can avoid the doubling only by proving it acted in good faith and had reasonable grounds to believe it was following the law. The court also awards attorney fees and expert witness costs.²⁵

You generally have two years from the date of the violation to sue. If the violation was willful, the deadline extends to three years.²⁵

1
GovInfo. 29 U.S.C. 2612 – Leave Requirement
2
U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
3
Office of the Law Revision Counsel. 29 U.S. Code 2611 – Definitions
4
eCFR. 29 CFR 825.110 – Eligible Employee
5
U.S. Department of Labor. Family and Medical Leave Act
6
U.S. Department of Labor. Fact Sheet 28M – Using FMLA Leave Because of a Family Members Military Service
7
Office of the Law Revision Counsel. 29 U.S.C. 2612 – Leave Requirement
8
U.S. Department of Labor. FMLA Frequently Asked Questions
9
Office of the Law Revision Counsel. 29 U.S.C. 2614 – Employment and Benefits Protection
10
U.S. Department of Labor. Family and Medical Leave Act Advisor
11
eCFR. 29 CFR 825.219 – Rights of a Key Employee
12
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
13
U.S. Department of Labor. Certification of Health Care Provider for Employees Serious Health Condition Under the Family and Medical Leave Act
14
U.S. Department of Labor. Notice of Eligibility and Rights and Responsibilities
15
U.S. Department of Labor. FMLA Forms
16
U.S. Department of Labor. Fact Sheet 28G – Medical Certification Under the Family and Medical Leave Act
17
U.S. Department of Labor. 12-Month Period Under the Family and Medical Leave Act
18
Virginia Code Commission. Virginia Code 40.1-33.7 – Definitions
19
Virginia Code Commission. Virginia Code 40.1-33.8 – Organ Donation Leave
20
Virginia Code Commission. Virginia Code 40.1-28.7:2 – Employers to Allow Crime Victims Leave to Attend Criminal Proceedings
21
Virginia Retirement System. Virginia Sickness and Disability Program Handbook for State Employees
22
Virginia Code Commission. Virginia Code Title 51.1 Chapter 11 – Sickness and Disability Program
23
Virginia Legislative Information System. SB2 – 2026 Regular Session
24
HUB International. Virginia Passes Paid Family and Medical Leave and Paid Sick Leave – What Employers Need to Know
25
Office of the Law Revision Counsel. 29 U.S.C. 2617 – Enforcement