Legal Insider: Leave for Virginia Employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We thought it might be helpful to submit an article on leave laws and rules that cover Virginia employees. Leave issues always come up either during the course of an employee’s employment or immediately following the end of employment. Leave laws and regulations also vary by the type of employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave. Virginia has not codified many areas of employee leave as of yet, but that may be changing as other states enact improvements.

Virginia is one of those states where most forms of employee leave are not mandatory, but I suspect that may change in the future as Northern Virginia grows larger with more employers. Some jurisdictions, like the District of Columbia, have moved toward expanded paid leave. Fortunately for most Virginia employees, many forms of leave, while not mandatory, are typically provided by employers in order for them to remain competitive in retaining employees. I will go through each form of leave in Virginia below:

Vacation Leave / Annual Leave

In Virginia, private sector employers are not required by law to provide employees with vacation/annual leave, either in a paid or unpaid status. This is different for federal, state and county employees in Virginia. For instance, federal employees accrue a certain amount of annual or vacation leave each pay period and can then use this leave for vacation or taking days off. When a federal employee leaves the federal government, they are paid out for the remaining balance of annual leave. While payout of accrued vacation or annual leave has not been mandated for private sector employers, if it is pursuant to a consistent company practice or policy, the employer in Virginia may be required to pay such leave out to departing employees.

Sick Leave

In Virginia, there is also no state requirement that employers provide employees with sick leave benefits. Virginia is different in this respect when compared to many other states. However, if an employer chooses to provide sick leave to employees, it must follow the established policy. There are some other notes on sick leave. First, federal, state and county employees are generally given sick leave in increments. Furthermore, under federal law, private sector employees of larger Virginia companies (more than 50 employees) are entitled to sick leave when given under the Family Medical Leave Act (FMLA).

Under the FMLA, private sector employees in Virginia may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies. This type of leave renews every 12 months as long as the employee continues to meet the eligibility requirements set out above. Employees may also take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.

Administrative Leave

While there is no entitlement to administrative leave for employees in Virginia, it can and is often granted. Typically, this type of leave is granted for reasons related to misconduct or equal employment opportunity investigations or other miscellaneous issues that arise. Federal, state and county employees have their own unique policies for administrative leave, which vary.

Holiday Leave

Additionally, the Commonwealth of Virginia does not require private employers to provide employees with either paid or unpaid holiday leave. Additionally, a Virginia employer does not have to pay an employee premium or enhanced pay for working on a holiday. Again, different standards apply for federal, county and state employees, depending on position (e.g., law enforcement), who may receive holiday pay for their work and/or premium pays.

Voter Leave

In Virginia, an employer is not required to give leave for an employee to vote. However, Virginia does require an employer to accommodate an employee who has been appointed as an election official. Some federal and other public employees have policies of permitting some administrative leave for voting where necessary.

Jury Duty Leave

In Virginia, an employer is not required to provide leave for jury duty, but cannot discharge or retaliate against the employee if they have given reasonable notice to their employer. Additionally, an employer may not charge a private sector employee vacation or annual leave for jury duty service. An employer that violates these provisions is guilty of a misdemeanor (VA Code. §18.2-465.1).

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