Family and Medical Leave Act in Virginia: Eligibility and Job Return

The Family and Medical Leave Act in Virginia gives eligible workers up to 12 weeks of unpaid, job-protected time off each year for a serious health condition, a new child, or a family member’s medical crisis.¹ Because Virginia has no state FMLA of its own, federal law does the heavy lifting. State law then adds several protections the federal statute doesn’t reach: organ and bone marrow donation leave, pregnancy accommodations at much smaller employers, and a paid family and medical leave program scheduled to begin paying benefits in late 2028.²

Who Is Eligible

Three requirements decide whether you qualify for FMLA leave, and you have to meet all of them.³ First, your employer must have had at least 50 employees on the payroll for 20 or more workweeks in the current or prior calendar year. This applies to private businesses, nonprofits, and public agencies. Second, you need at least 12 months of employment with that employer (they don’t have to be consecutive) and at least 1,250 hours of actual work in the 12 months right before your leave starts. Third, your employer must have at least 50 employees within a 75-mile radius of your worksite. A company can employ thousands nationally, but if only 30 people work at or near your location, you won’t qualify.

One narrow exception applies to highly paid workers. If you’re salaried and among the top 10 percent of earners within 75 miles of your worksite, your employer can classify you as a “key employee” and refuse to reinstate you if bringing you back would cause substantial and grievous economic injury to the business.⁴ The employer must give you written notice of that status when you request leave or when leave begins. You still get the leave and your health insurance stays in force; only the guaranteed job restoration is at risk.

Reasons You Can Take Leave

FMLA covers five categories of life events:¹

The birth of your child or the placement of a child with you through adoption or foster care. Bonding leave must be used within 12 months of the 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 arising from a family member’s active-duty deployment, such as arranging childcare, attending military briefings, or handling financial matters.
Caring for a spouse, child, parent, or next of kin who is a covered servicemember with a serious injury or illness. This category allows up to 26 weeks in a single 12-month period rather than the standard 12.⁶

The word “child” is broader than many people expect. If you’ve taken on day-to-day parenting responsibilities for a child without a biological or legal tie, that counts as an “in loco parentis” relationship, and you can take leave for that child. A simple written statement explaining the relationship satisfies any documentation request.⁷

What Counts as a Serious Health Condition

A common cold or a stomach bug isn’t a serious health condition. The illness or injury generally has to involve either inpatient care or continuing treatment by a healthcare provider. Continuing treatment means at least one of the following:

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

Over-the-counter medication and self-care that never involves a provider visit don’t meet the standard.⁶

Taking Leave in Blocks or Reduced Hours

You don’t have to use all 12 weeks at once. When medically necessary, you can take FMLA leave in separate blocks or by reducing your weekly hours. Recurring 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 kinds of leave, but never more than one hour at a time.⁹ For planned treatment, make a reasonable effort to schedule it so it doesn’t unnecessarily disrupt work. Your employer can also move you temporarily to a different role with equivalent pay and benefits if that role better accommodates recurring absences.

Bonding leave works differently. You can take it intermittently only if your employer agrees. If your newborn or newly placed child has a serious health condition, though, you have the right to intermittent leave without approval because it’s medically necessary.⁸

Paid Time Off and Health Insurance During Leave

FMLA leave is unpaid. You can choose to use accrued vacation, personal, or sick leave at the same time, and your employer can require you to do so.¹ The paid time runs concurrently with your 12 weeks; using two weeks of vacation doesn’t add two extra weeks of protection. Employer policies often dictate which type of paid leave gets used first, so check yours.

Your group health insurance stays in place on the same terms as if you were still working. You still owe your share of the premium. If your payment runs more than 30 days late, the employer can drop your coverage, but only after mailing 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 such as a planned surgery, an expected due date, or a scheduled series of treatments, give your employer at least 30 days’ advance notice. When 30 days isn’t possible, give notice as soon as you can. For unforeseeable events, notify your employer as soon as practicable, following the call-in procedures the workplace normally uses.¹¹ In a genuine emergency, notice can wait until the situation stabilizes, and a spouse or family member can call on your behalf.

Expect a request for medical certification. Form WH-380-E covers your own serious health condition, and Form WH-380-F is for a family member’s condition. Both are on the Department of Labor’s website.¹² Your healthcare provider fills in the medical details, including the nature of the condition and the expected duration of leave. Completing these accurately the first time avoids back-and-forth that stalls approvals. For ongoing conditions, the employer can request updated certification no more than once every 30 days, and only tied to an actual absence.¹³

Employer Deadlines and Getting Your Job Back

Once you provide notice, your employer has five business days to send you a written Notice of Eligibility and Rights and Responsibilities. This document tells you whether you meet the hours and tenure requirements and explains what’s expected of you during leave. After you turn in your medical certification, the employer has another five business days to issue a Designation Notice confirming whether the leave counts against your FMLA entitlement.¹⁴ Missed deadlines can amount to interference with your rights.

When leave ends, you’re entitled to your old job or one that is virtually identical in pay, benefits, schedule, and working conditions.¹⁵ Equivalent isn’t a loose word. Same duties, same shift or an equivalent schedule, same worksite or one close enough that your commute doesn’t meaningfully change, and the same opportunity for bonuses and raises.¹⁶ Any unconditional pay increase that occurred while you were out, such as a cost-of-living adjustment, applies to your returning salary. Your existing benefits carry over, though you don’t accrue new seniority or benefits during unpaid leave. Your employer may require a fitness-for-duty certification before letting you return, but only if that requirement appeared in the Designation Notice and is applied consistently to similar employees.

If Your Employer Interferes or Retaliates

Federal law bars your employer from interfering with your right to take FMLA leave, denying a valid request, or retaliating against you for using leave or filing a complaint.¹⁷ Retaliation covers firings, demotions, cut hours, discipline tied to leave, and conditions designed to push you out after you return. Quieter versions can also count: exclusion from meetings, a promotion you were on track for suddenly going to someone else, a stack of write-ups appearing after a clean record.

You have two enforcement paths. You can file a confidential complaint with the Department of Labor’s Wage and Hour Division by calling 1-866-487-9243, and the agency will decide whether to investigate and can pursue action against your employer.¹⁸ You can also file a private lawsuit. The deadline is two years from the last violation, or three years if the violation was willful.¹⁹ A successful case can recover lost wages and benefits, interest, an equal amount in liquidated damages that effectively doubles the recovery, and reasonable attorney’s fees and costs.²⁰ Liquidated damages can be reduced if the employer proves good faith, which is difficult when the record shows clear interference or retaliation.

Virginia Protections Beyond FMLA

State law adds coverage in places federal FMLA doesn’t reach.

Organ and Bone Marrow Donation Leave

Virginia employers with 50 or more employees must give unpaid leave for organ and bone marrow donation.²¹ Organ donors get up to 60 business days of unpaid leave in a 12-month period, and bone marrow donors get up to 30 business days.²² Eligibility mirrors FMLA: 12 months of employment and 1,250 hours in the prior year. You’ll need a written physician’s note confirming that you’re a donor and that the donation is medically necessary.

Pregnancy Accommodations at Smaller Employers

Virginia requires reasonable accommodations for pregnancy, childbirth, and related conditions from employers with as few as five employees, well below FMLA’s 50-employee threshold.²³ Accommodations can include modified schedules, more frequent breaks, temporary reassignment to lighter duties, telework, and leave to recover from childbirth, unless providing them would cause undue hardship. The federal Pregnant Workers Fairness Act offers similar protections at employers with 15 or more employees.²⁴ The lower state threshold means many Virginia workers at small businesses are still covered.

Jury Duty and Court Appearances

Virginia prohibits firing or otherwise penalizing an employee who misses work for jury duty or a court subpoena. The protection covers anyone summoned to appear in court, except a criminal defendant in their own case. Your employer cannot force you to use sick leave or vacation time for the absence.²⁵ You just need to give reasonable advance notice.

Paid Leave Coming in 2028

Virginia became the first southern state to enact a paid family and medical leave program. The Virginia Employment Commission will administer it, funded by a payroll contribution shared between employers and employees. Contributions begin April 1, 2028, and benefits start December 1, 2028.² Once benefits begin, 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, care for a family member with a serious health condition, military family needs, and situations involving domestic violence, sexual assault, or stalking. Watch for VEC guidance as contribution rates and implementation details are finalized.

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
U.S. Department of Labor. Fact Sheet 28G: Medical Certification under the Family and Medical Leave Act
14
eCFR. 29 CFR 825.300 – Employer Notice Requirements
15
Office of the Law Revision Counsel. 29 USC 2614 – Employment and Benefits Protection
16
eCFR. 29 CFR 825.215 – Equivalent Position
17
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts
18
U.S. Department of Labor. How to File a Complaint
19
U.S. Department of Labor. Family and Medical Leave Act Advisor – Filing a Complaint or Lawsuit
20
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
21
Virginia Code Commission. Virginia Code 40.1-33.7 – Definitions
22
Virginia Code Commission. Virginia Code 40.1-33.8 – Organ Donation Leave
23
Virginia Code Commission. Virginia Code 2.2-3909 – Causes of Action for Failure to Provide Reasonable Accommodation
24
U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act
25
Virginia Code Commission. Virginia Code 18.2-465.1 – Penalizing Employee for Court Appearance or Service on Jury Panel