Virginia Paternity Leave: FMLA Rights and the 2028 Paid Program

If you are a new or expecting father in Virginia, paternity leave comes from three possible places: the federal Family and Medical Leave Act gives most workers up to 12 weeks of unpaid, job-protected time off; Virginia state government employees get eight weeks of paid parental leave through a separate policy; and a new statewide paid family and medical leave program, enacted in 2026, begins paying benefits on December 1, 2028. Until that program launches, private-sector fathers have no state-mandated right to paid time off — anything paid comes from what your employer voluntarily offers.

What FMLA Gives You

The FMLA is the baseline for most Virginia fathers. It lets you take up to 12 workweeks of leave in a 12-month period to bond with a newborn, a newly adopted child, or a child placed with you through foster care. That bonding leave has to be finished within 12 months of the birth or placement; any weeks you don’t use by then are gone.¹

To qualify, you must have worked for your employer for at least 12 months, logged at least 1,250 hours in the year before your leave starts, and work at a location where your employer has 50 or more employees within a 75-mile radius.²

What the FMLA protects is your job, not your paycheck. The leave is unpaid unless you use accrued vacation or sick time alongside it. When you come back, your employer must return you to the same position or one that is virtually identical in pay, benefits, duties, and working conditions,³ and your group health insurance stays active during leave on the same terms as if you were still working.⁴

FMLA Rules That Trip Up New Fathers

A few details in the FMLA regularly catch fathers off guard.

Both Spouses at the Same Employer

If you and your spouse both work for the same company, your employer can limit your combined bonding leave to 12 weeks total instead of 12 weeks each. If your spouse takes 10 weeks, you may be capped at two. The limit applies only to bonding leave and leave to care for a sick parent; it does not apply if either spouse needs leave for their own serious health condition.⁵

Intermittent Leave Requires Employer Agreement

You might want to spread bonding time out — a day at a time, a week here and there — rather than taking it in one block. For bonding leave, you can only do that if your employer agrees. This is different from FMLA leave for a serious medical condition, where the employer cannot refuse an intermittent schedule. If your employer does agree, they can temporarily reassign you to a role that fits the irregular schedule better.⁶

Remote Workers and the 50-Employee Threshold

Working from home does not make your house your worksite. Your worksite is the physical office you report to or receive assignments from, and your employer counts everyone assigned to that office — including other remote workers — toward the 50-within-75-miles threshold.⁷ A small satellite office with only 15 people on-site can still qualify if enough remote workers report to it.

How to Request FMLA Paternity Leave

Give your employer written notice at least 30 days before your leave starts. If circumstances change the timing, tell them as soon as you reasonably can.⁸ Send the notice to your supervisor, HR, or through whatever leave-request system your employer uses; check the employee handbook for the preferred method.

Within five business days, your employer must respond with an eligibility notice telling you whether you qualify.⁹ Many employers use Department of Labor Form WH-381 for this step.¹⁰ You will also get a designation notice — often Form WH-382 — confirming that your leave counts as FMLA leave, whether you have to substitute paid time off, and what return-to-work requirements apply.¹¹

For a birth, expect to provide proof from a healthcare provider. For adoption or foster placement, court documents or placement agreements work. FMLA leave for adoption can start before the child arrives — you can use it for court dates, attorney meetings, required counseling, or travel to complete the adoption.¹ Keep copies of every form and email. If a dispute comes up later about how your leave was designated, that record is what protects you.

Paid Parental Leave for Virginia State Employees

If you work for a Virginia executive branch agency, you may be entitled to eight weeks (320 hours) of paid parental leave after the birth, adoption, or foster placement of a child under 18. This benefit comes from Department of Human Resource Management Policy 4.21 and Executive Order 12.¹²

Eligibility mirrors FMLA in some ways: you must hold a full-time, quasi-full-time, or part-time salaried position, have at least 12 months of state employment within the past seven years, and have worked at least 1,250 hours in the previous 12 months. Part-time employees get prorated hours based on their normal schedule.¹³

You have to use the paid leave within six months of the birth or placement, and you can only use the 320 hours once per child and once within any 12-month period. It does not draw down your sick or annual leave, but unused hours are forfeited after the six-month window closes and have no cash value if you leave state employment.¹³ Policy 4.21 also requires you to submit your leave request at least 30 days before the anticipated start date and follow your agency’s procedures.

One boundary worth noting: this benefit covers only executive branch agencies. Legislative and judicial branch employees are not included unless their branches independently adopt similar policies.¹²

Virginia’s Paid Family and Medical Leave Program Starting in 2028

Virginia enacted a paid family and medical leave program in 2026 that will provide up to 12 weeks of paid time off for welcoming a new child, recovering from a serious health condition, caring for a seriously ill family member, or handling military family needs and domestic violence situations.¹⁴

The Virginia Employment Commission starts collecting payroll contributions on April 1, 2028, and benefit payments begin on December 1, 2028.¹⁴ The weekly benefit will equal 80 percent of your average weekly wage, capped at 100 percent of the statewide average weekly wage, with the cap adjusted annually.¹⁵

Funding comes from a payroll contribution shared between employers and employees. Employers with 11 or more workers pay a portion and can deduct up to half the total contribution from employee wages. Employers with 10 or fewer workers are exempt from the employer share but still have to remit the employee portion. Coverage extends to nearly all private-sector and local government workers regardless of employer size. The VEC has not yet published final contribution rates.¹⁴

Planning Paternity Leave Before 2028

Until state benefits begin, start with your employer’s policy rather than the law. Many Virginia employers, especially larger companies, hospitals, and universities, offer paid parental leave that goes beyond the federal minimum. Read your employee handbook or benefits portal before you assume you are limited to unpaid FMLA leave. If your employer does offer paid parental leave, ask whether it runs concurrently with FMLA — usually it does, so the 12-week clock ticks on both at once — or whether it stacks on top.

If FMLA is all you have, plan for the fact that it is unpaid. Some fathers combine accrued vacation, personal leave, and unpaid FMLA to build a stretch of leave that is paid up front and unpaid at the back end. Talk with HR at least two months before the expected arrival about how your paid leave balances interact with FMLA. And submit your written request at least 30 days out; it is legally required for foreseeable leave and it makes everything else easier.⁸

1
U.S. Department of Labor. Taking Leave from Work for Birth, Placement, and Bonding with a Child under the FMLA
2
U.S. Department of Labor. Family and Medical Leave Act
3
U.S. Department of Labor. Fact Sheet 28A – Employee Protections under the Family and Medical Leave Act
4
Office of the Law Revision Counsel. 29 USC 2614 – Employment and Benefits Protection
5
Office of the Law Revision Counsel. 29 USC 2612 – Leave Requirement
6
eCFR. 29 CFR 825.120 – Leave for Pregnancy or Birth
7
eCFR. 29 CFR 825.111 – Determining Whether 50 Employees Are Employed Within 75 Miles
8
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
9
eCFR. 29 CFR 825.300 – Employer Notice Requirements
10
U.S. Department of Labor. Notice of Eligibility and Rights and Responsibilities
11
U.S. Department of Labor. Designation Notice
12
Commonwealth of Virginia. Executive Order Twelve – Parental Leave for Commonwealth Employees
13
Virginia Department of Human Resource Management. Parental Leave Policy 4.21
14
Virginia Employment Commission. First in the South: Virginia Enacts Paid Family and Medical Leave
15
Virginia State Legislative Information System. SB2 – 2026 Regular Session