Virginia FMLA rules come from federal law, not state law: the Commonwealth has no broad paid leave mandate for private employers, so eligible Virginia workers currently rely on the federal Family and Medical Leave Act for up to 12 weeks of unpaid, job-protected leave each year. That will change on December 1, 2028, when Virginia’s new paid family and medical leave program begins paying benefits.1Virginia Employment Commission. First in the South – Virginia Enacts Paid Family and Medical Leave Virginia also has standalone leave laws for organ and bone marrow donors, and state government employees get additional paid parental leave and a disability income program on top of FMLA.
Who Qualifies for FMLA Leave in Virginia
Three requirements decide whether you are covered. Your employer must have at least 50 employees within 75 miles of your worksite. You must have worked for that employer for at least 12 months. And you need at least 1,250 hours of service in the 12 months before your leave starts.2U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
The 12 months of employment do not have to be consecutive. Seasonal workers, rehires, and people who left and came back can still qualify if the total time with the employer adds up.3U.S. Department of Labor. Fact Sheet 28H – 12-Month Period Under the Family and Medical Leave Act
If your employer has fewer than 50 employees within a 75-mile radius, federal FMLA does not apply to you, and Virginia has no equivalent private-sector law filling that gap until the 2028 paid program starts. Employer-provided policies may still offer leave.
Reasons You Can Take FMLA Leave
Federal law covers four categories:
- Birth of your child, or placement of a child with you through adoption or foster care. This leave must be used within 12 months of the birth or placement.4eCFR. 29 CFR 825.121 – Leave for Adoption or Foster Care
- Caring for a spouse, child, or parent with a serious health condition.
- Your own serious health condition that keeps you from doing your job.
- Military family needs, which come in two forms described below.
How Much Leave You Get and Whether It’s Paid
The standard entitlement is 12 workweeks of unpaid, job-protected leave in a 12-month period. FMLA itself does not pay you. You can choose to use accrued vacation or sick time during the leave, and your employer can require you to use paid leave before going unpaid. Either way, the time counts against your 12 weeks.5U.S. Department of Labor. FMLA Frequently Asked Questions
Military family leave has its own math. If your spouse, child, or parent is on covered active duty or has been called to it, you can use up to 12 weeks for qualifying needs tied to the deployment, such as short-notice deployment issues, arranging childcare, handling financial and legal matters, attending military events or counseling, spending up to 15 calendar days with a servicemember on rest and recuperation leave, and post-deployment reintegration.6U.S. Department of Labor. Fact Sheet 28M(c) – Qualifying Exigency Leave Under the Family and Medical Leave Act
If you are the spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness, you can take up to 26 workweeks in a single 12-month period to care for them. That is the largest allotment FMLA provides for any purpose. The servicemember can be currently serving or a veteran discharged within the previous five years.7U.S. Department of Labor. Fact Sheet 28M – Using FMLA Leave Because of a Family Member’s Military Service
Intermittent Leave
You do not have to take FMLA leave in one continuous block. When medically necessary, you can take it in smaller increments for chronic conditions, recurring treatments, or flare-ups. Your employer tracks the time in the same increments it uses for other leave types, and never in increments larger than one hour.8eCFR. 29 CFR 825.205 – Increments of FMLA Leave for Intermittent or Reduced Schedule Leave
Bonding leave for a new child works differently. You can take that intermittently only if your employer agrees. If your newborn or newly placed child has a serious health condition, though, intermittent leave to care for the child is a medical matter and does not require employer approval.5U.S. Department of Labor. FMLA Frequently Asked Questions
For foreseeable medical treatments, you and your employer should schedule the absences to minimize disruption. The employer may temporarily transfer you to an equivalent position that better accommodates the recurring absences, so long as pay and benefits stay the same.
How to Request FMLA Leave
For foreseeable events like a scheduled surgery, planned treatment, or an expected birth, give your employer at least 30 days’ advance notice.9eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave If the need is sudden, notify your employer as soon as you reasonably can.
Expect a request for medical certification. The Department of Labor publishes optional forms: WH-380-E for your own serious health condition and WH-380-F when you are caring for a family member.10U.S. Department of Labor. FMLA Forms Your healthcare provider completes the medical details, including the nature of the condition, expected duration, and why you cannot work or need to provide care.
After you submit the request, your employer has five business days to send an eligibility notice telling you whether you qualify, followed by a designation notice that formally approves or denies the leave and states how much time will count against your annual entitlement.11U.S. Department of Labor. Fact Sheet 28D – Employer Notification Requirements Under the Family and Medical Leave Act
If Your Employer Disputes the Medical Certification
An employer that doubts your certification can require a second opinion from a different provider at the employer’s expense. The employer picks the doctor, but that doctor cannot be someone the employer regularly uses. If the second opinion disagrees with your original one, the employer can require a third opinion, also at its expense, from a provider you and the employer choose jointly. The third opinion is final and binding.12U.S. Department of Labor. Family and Medical Leave Act Advisor
The employer must reimburse reasonable travel expenses for these appointments and generally cannot send you outside your normal commuting area. If either side refuses to negotiate in good faith over the third provider, the other side’s preferred certification controls.
Health Insurance and Job Restoration
Your employer must keep your group health coverage in place during FMLA leave on the same terms as if you were still working, with the same employer contribution.13Office of the Law Revision Counsel. 29 USC 2614 – Employment and Benefits Protection You still owe your share of the premium, so work out the payment method with your employer before your leave starts to avoid a coverage lapse.
When you return, you are entitled to your original job or one that is virtually identical in pay, benefits, schedule, and working conditions.2U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
There is a narrow exception for “key employees.” If you are salaried and among the highest-paid 10 percent of your employer’s workforce within 75 miles, your employer can deny reinstatement only if restoring you would cause substantial and grievous economic injury to the business. Even then, you keep the right to take leave and to maintain health insurance; only reinstatement can be denied, and the employer must notify you of your key-employee status and the potential denial when your leave begins.
Virginia Organ and Bone Marrow Donor Leave
Separate from FMLA, Virginia Code § 40.1-33.8 requires employers with 50 or more employees to provide unpaid leave for organ and bone marrow donation. Eligibility mirrors FMLA: at least 12 months of employment and 1,250 hours worked in the previous 12 months.14Virginia Code Commission. Virginia Code 40.1-33.8 – Organ Donation Leave
- Up to 60 business days of unpaid leave in any 12-month period for organ donation.
- Up to 30 business days of unpaid leave in any 12-month period for bone marrow donation.
Your employer cannot treat donor leave as a break in continuous service for purposes of salary adjustments, seniority, vacation accrual, or other benefits. When you return, you are entitled to your former position or an equivalent one with the same pay and benefits, and reinstatement can be denied only for reasons entirely unrelated to your having taken the leave. Health insurance must be maintained during organ donation leave.15Virginia Code Commission. Virginia Code 40.1-33.9 – Employee’s Right to Benefits; Restoration of Position
Extra Benefits for Virginia State Employees
If you work for the Commonwealth, you get benefits most private-sector Virginia workers do not. Under Virginia Code § 2.2-1210, classified and at-will state employees who have worked for the Commonwealth for at least 12 consecutive months receive eight weeks of paid parental leave at 100 percent of salary after the birth, adoption, or foster placement of a child under 18.16Virginia Code Commission. Virginia Code 2.2-1210 – Parental Leave
You must use the leave within six months of the birth or placement, and only once per child and once in any 12-month period. If both parents are eligible state employees, each gets the full eight weeks. This paid leave runs concurrently with FMLA, so it does count against your 12-week federal entitlement, but it does not draw from sick leave, annual leave, or VSDP. State holidays that fall during the eight weeks are not deducted.
State employees also participate in the Virginia Sickness and Disability Program, administered by the Virginia Retirement System, which provides income replacement when illness, injury, or pregnancy keeps you from working. Short-term disability benefits begin after a seven-calendar-day elimination period (waivable for catastrophic or major chronic conditions) and last up to 125 workdays, with the salary replacement percentage depending on your length of service and hire date. Long-term disability then provides 60 percent of pre-disability income until you can return to work, are no longer medically eligible, or reach your normal VRS retirement age.17Virginia Retirement System. Virginia Sickness and Disability Program Handbook
What Changes in 2028
Virginia has enacted a paid family and medical leave program that will apply to private-sector workers for the first time. The Virginia Employment Commission will run it, funded by payroll contributions shared between employers and employees. Contributions begin April 1, 2028, and benefit payments start December 1, 2028.1Virginia Employment Commission. First in the South – Virginia Enacts Paid Family and Medical Leave
Once benefits start, eligible workers will be able to receive up to 12 weeks of paid leave to:
- Care for a new child after birth, adoption, or foster placement.
- Recover from a serious health condition.
- Care for a family member with a serious health condition.
- Address military family needs.
- Handle needs related to domestic violence, sexual assault, or stalking.
Until then, private-sector workers in Virginia rely on federal FMLA unpaid leave, any employer-provided paid leave, and the standalone donor leave law.