This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
This article covers the availability of different forms of leave for Virginia private sector employees under Virginia law.
Vacation or Annual Leave
In the Commonwealth of Virginia, private sector employers are not required to provide employees with vacation or annual leave benefits, whether they are paid or unpaid. If an employer chooses to provide this type of leave to employees, however, it must comply with the terms of the employer’s established policy or employment contract.
A private sector employer must pay an employee for accrued annual/vacation leave upon separation from employment if its policy or contract provides for such payment. The courts in the Commonwealth of Virginia have not provided much guidance with respect to leave rights, so an employer is generally free to mostly develop their own annual leave/vacation leave policy.
This means that even if there is a vacation/annual leave policy, the employer could make it a “use or lose” policy or deny payment of annual leave if the employer’s policy is silent on the issue.
There is no requirement for employers to provide private sector employees with sick leave benefits, whether they are paid or unpaid under Virginia law. However, if an employer chooses to provide sick leave benefits to employees, it must comply with the terms of the employer’s established policies or applicable employment contract.
That said, an employer in Virginia is still subject to the Family and Medical Leave Act (FMLA) and other federal laws regarding sick leave that must be given to an employee. Generally, under FMLA, the federal law provides certain employees with up to 12 weeks of unpaid, job-protected leave per year.
In the Commonwealth of Virginia, the law does not require private-sector employers to give employees bereavement leave. Bereavement leave is taken by an employee usually due to the death of a close relative.
An employer may choose to provide bereavement leave and may be required to comply with any bereavement policy or practice it maintains. Generally, however, there is no entitlement to bereavement leave.
In terms of holiday leave, Virginia law also does not require private employers to provide this type of leave to employees. This applies to both paid and unpaid leave. In fact, Virginia employers can require an employee to work holidays.
A private-sector employer does not have to pay an employee premium pay, such as 1½ times the regular pay rate, for working on holidays, unless such time worked qualifies the employee for overtime under the governing overtime laws (e.g., Fair Labor Standards Act). If an employer chooses to provide either paid/unpaid holiday leave, it must comply with the terms of their established policy or employment contract.
Jury Duty Leave
In Virginia, a private sector employer is not required to pay an employee for time spent on jury duty. However, there is a provision of the Virginia Code which makes it against the law for an
employer to discharge or take any other adverse action against an employee for jury duty service if the employee has given reasonable notice of their required service.
In addition, an employer cannot require an employee to take sick, annual or vacation leave when responding to a jury summons or service on the jury if reasonable notice to the employer has been given.
Similar to federal law, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Virginia has laws that protect the employment status of the men and women who serve in the armed forces.
Virginia law prohibits employers from discharging or otherwise discriminating against an employee because he or she is a member of the Virginia National Guard, Virginia State Defense Force or naval militia. The Virginia law covers all public and private employers, regardless of size. An employer that violates this provision can be guilty of a misdemeanor.
The Commonwealth of Virginia does not have a law that requires an employer to grant its employees leave, paid or unpaid, to vote. This should be changed, in the author’s opinion, but that is the case today. However, Virginia law does require an employer to provide an employee time off to serve as an election officer if the employee has given reasonable notice of the need for leave.
Such leave need not be paid by the employer. The leave does not need to be paid. A Virginia employer that fails to allow an employee to take time off to serve as an election officer can be guilty of a misdemeanor.
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