Virginia Joins the Club: Paid Family and Medical Leave Coming Soon

Governor Abigail Spanberger recently signed HB 1207 (the “Act”), establishing a new paid family and medical leave (PFML) insurance program in the Commonwealth of Virginia. As a result, Virginia will become the 16th state to provide PFML for private-sector employees.[1]

Eligibility

All Virginia employees of private employers whose earnings for at least two fiscal quarters equal or exceed those required for Virginia unemployment insurance benefits (at least $3,000 in six months) are entitled to PFML benefits. These benefits are portable within Virginia, meaning that employees do not have a service requirement tied to a specific employer, such that new hires could be eligible for PFML immediately if they had sufficient prior earnings from another Virginia employer. Individuals who are self-employed may also participate in the program, subject to certain conditions.

Permitted Uses of Virginia PFML

Beginning on December 1, 2028, eligible Virginia employees will be able to take up to 12 weeks of paid leave per year, for any of the following reasons:

1. To care for a new child within the first year of the birth, adoption, or placement of that child;
2. To care for a family member with a serious health condition;
3. Because of an employee’s own serious health condition that renders the employee “unable to perform the functions” of their employment;
4. To care for the individual’s next of kin or other family member who is a member of the Armed Forces of the United States (which includes the Army Reserve and the Virginia National Guard) and is undergoing medical treatment, therapy, or treatment for injuries sustained or aggravated by active-duty military service, including as an outpatient;
5. To obtain exigency leave arising out of the fact that a family member of the covered individual is on active duty or has been notified of an impending call or order to active duty, in the Armed Forces; and
6. To seek, for themselves or for a family member, “safety services”—i.e., legal or law-enforcement assistance to secure health and safety, as well as medical treatment, recovery services, victim services, relocation services, or counseling arising from an instance of domestic violence, harassment, sexual assault, or stalking. Under the Act, only a maximum of four weeks may be used for this purpose.

The four weeks of “safety services” leave count towards, and are not in addition to, the 12 weeks of PFML benefits.

For the purposes of PFML, a covered “family member” is defined as an employee’s child (any age), grandchild, grandparent, parent, sibling, spouse, or domestic partner (as legally defined by the Act), including step, foster, or adopted relationships. It also includes any individual who depends on the employee for care and regularly resides in the employee’s home or whose relationship with the employee creates an expectation of care, but not someone who simply resides in the employee’s home with no expectation of care, such as a roommate or boarder.

Eligible employees may use PFML on an intermittent or reduced schedule basis, so long as they claim at least eight hours of leave benefits in a single workweek. PFML benefits for an intermittent or reduced leave schedule must be prorated and coordinated between the employee and employer.

Requesting and Documenting Leave

Employees must provide their employer with prior notice of scheduled leave to the extent practicable. When taking intermittent leave, employees must make a reasonable effort to schedule their time off so as not to unduly disrupt their employer’s operations.

Employees applying for PFML benefits will need to provide certain certified supporting documents. The statutory requirements vary depending on the reason an employee is seeking leave, but they generally require a signed certification from a physician or health care provider or other authority. The Virginia Employment Commission (VEC), which will administer the program, may issue further guidance.

It is unclear at this time whether employers will need to collect this documentation or if employees will be responsible for submitting their claims directly to the VEC. In either case, employers are required to keep any employee medical and health-related information confidential.

Payment During Leave

While employees are on leave, they are entitled to payment equal to 80 percent of their average weekly wages, capped at an amount equal to average weekly net earnings determined annually by the VEC. The weekly benefit amount must exceed $100 per week unless the employee’s average weekly wage is less than $100, in which case the employee will be entitled to a benefit amount equal to their full wages.

Job Protection

Under the Act, any employee who worked for the employer for at least 120 days before taking PFML leave will be entitled to return to the same or equivalent position as they held before taking leave. The Act also requires employers to maintain an employee’s health care benefits during PFML leave, with the employee obligated to continue paying any portion of premiums as required.

Coordinating FMLA and Other Benefits

The Act acknowledges that PFML leave may also qualify under the federal FMLA and specifies that such leave must run concurrently (taken at the same time). Employers may also require that PFML benefits be coordinated with other available benefits if this requirement is disclosed in a written notice given to employees.

The Act also prohibits employers from using a collective bargaining agreement or employer policy to reduce PFML benefits beginning January 1, 2027. Any agreement that purports to waive an individual’s rights under the Virginia PFML program will be void as against public policy.

Employers’ Administrative Obligations

Funding

The PFML program will be funded through equal contributions[2] from employers and employees beginning on April 1, 2028, at rates that will be published by October 1, 2027, by the VEC Commissioner and adjusted annually. Notably, employers with 10 or fewer employees are not required to pay the employer portion of the contribution.

Employers will need to deduct the employee’s share of the contribution from each paycheck. The Act does not specify when employers should begin implementing payroll deductions, stating only that employers must start remitting contributions on April 1, 2028.

Notice and Posting

Starting January 1, 2028, employers must provide each employee with written notice of their rights under the Act, including information about available benefits and the procedures for requesting leave. The notice must be provided to each employee upon hire and annually thereafter, upon request, or when an employer becomes aware of an employee’s intent to take covered leave.

Employers must also display a workplace poster in multiple languages (English, Spanish, and other languages spoken by more than five percent of Virginia’s population) to inform employees of their right to take leave.

Private Plans

Employers may meet their obligations under the Act through private plans if they provide the same rights, benefits, and employer obligations as those conferred by the Act. The Act provides that the VEC must approve the private plan but does not address when employers are permitted to begin submitting their private plans for approval.

Retaliation and Other Prohibitions

The Act prohibits interference with the exercise of an employee’s rights and also prohibits any form of retaliation against an employee who takes family or medical leave or against those who allege, in good faith, that an employer has violated any provision of the Act. Further, an employer’s absence control policy may not adversely count absences due to family or medical leave.

Enforcement Provisions

Although several provisions in the Act indicate that employees will have “a right to file a complaint” for PFML violations, it is unclear whether they can bring those claims directly in court. Otherwise, the Act authorizes the Virginia Commissioner of Labor and Industry to investigate suspected violations on their own initiative or with the consent of an employee or interested third party, and to pursue administrative action directly or refer matters to the Virginia Attorney General for court proceedings.

Employers that violate the job restoration or benefits continuation requirements may be liable for actual damages (lost wages, salary, or benefits, or an affected employee’s out-of-pocket costs up to 12 weeks of wages if no direct compensation was lost), plus interest. On top of that, courts add an equal amount in liquidated damages, effectively doubling the total award. Courts can waive the liquidated damages only if the employer proves it acted in good faith and had a reasonable basis for believing its actions were lawful. In addition to awarding damages, courts may also order equitable relief, such as reinstatement or promotion.

Employees have one year from the date of the last violation to file a complaint, but the deadline extends to three years for allegations that a violation was willful.

Employers that fail to make timely contribution payments into the Family and Medical Leave Insurance Trust Fund will incur a penalty at a rate of 1.5 percent. If an employer defaults on its contribution obligations, the VEC Commissioner may bring a lawsuit to recover the funds, and if the employer continues to be in default, that employer may be barred from doing business in the state.

What Virginia Employers Should Do Now

• Review any current family or medical leave policies to ensure the policies are compliant under the Act before obligations begin in 2027.
• Ensure employee absence policies do not penalize an employee for taking leave permitted under the PFML program.
• Prepare payroll systems to make appropriate deductions and contribution payments under the Act once the VEC Commissioner determines the contribution rate.
• Monitor the VEC website for guidance and any program details, including contribution rates and schedule, acceptable forms of documentation, and the required workplace poster.

* * * *

For additional information about the issues discussed in this Insight, please contact the attorney(s) listed on this page or the Epstein Becker Green Employment, Labor & Workforce Management attorney who regularly handles your legal matters.

Staff Attorney Elizabeth A. Ledkovsky assisted with the preparation of this Insight.

ENDNOTES

[1] The final version of the law incorporates Governor Spanberger’s recommendations, modifying a bill initially approved by the legislature on March 31, 2026.

[2] The employee portion of the contribution rate is assumed to be 50 percent but may be adjusted downward through an agreement between the employee and the employer.