Highlights
Impacted employers and effective dates:
- July 1, 2027: Employers with at least 50 employees;
- January 1, 2028: Employers with at least 25 employees; and
- January 1, 2029: Employers with at least one employee.
Summary: Virginia will require covered employers to provide paid sick leave.
Next Steps: Review and update leave policies and procedures.
The Details
Virginia has enacted legislation (House Bill 5), which significantly expands the state's existing paid sick leave law, which has covered only certain home health workers since 2021. The new law takes effect beginning July 1, 2027.
An employer may adopt a more generous paid sick leave policy than what is required by law. Additionally, an employer is not required to provide additional paid sick leave if it already has a paid leave policy that provides an amount of leave that:
· Meets or exceeds the law’s requirements; and
· May be used for the same purposes (and under the same conditions) as the law.
Covered Employers
Under the law, the following employers must provide paid sick leave beginning on the following dates:
· July 1, 2027: Employers with at least 50 employees;
· Jan. 1, 2028: Employers with at least 25 employees; and
· Jan. 1, 2029: Employers with at least one employee.
See the text of the law for further details and exceptions.
Covered Employees
House Bill 5 covers certain employees, but does not cover home health workers, certain other health care workers, or employees covered by the federal Railroad Unemployment Insurance Act. See the text of the law for further details.
Collective Bargaining Agreements (CBAs)
General: An employer is exempt from providing additional paid sick leave if its CBA already provides sufficient paid leave that meets the law's requirements and may be used for the same purposes and conditions.
Longshore and Harbor Workers’ Compensation Act: A separate exemption applies to employees covered by this Act if certain conditions are met, including that the employer is party to a CBA in effect on July 1, 2027. The exemption for employees subject to the CBA lasts until the expiration of the agreement or December 31, 2030 (whichever is earlier).
Accrual
An employee must accrue at least one hour of paid sick leave for every 30 hours of work at the commencement of employment and may accrue up to 40 hours of paid sick leave in a year (unless the employer selects a higher limit).
Note: A year is a regular and consecutive 12-month period as determined by the employer.
For accrual purposes:
· Employees who are exempt from overtime requirements under the federal Fair Labor Standards Act (FLSA) work 40 hours each workweek;
· Exempt employees with a normal workweek of fewer than 40 hours will accrue paid sick leave based on that normal workweek;
· Airline flight crew employees work 40 hours each workweek; and
· An employee with a fee-for-service structure will accrue paid sick leave following regulations set by the Commissioner of the Virginia Department of Labor and Industry (“DOLI)”, (“the Commissioner”)"".
Note: An employer may, at its discretion, advance or loan paid sick leave to an employee prior to accrual.
Frontloading
An employer may provide all the paid sick leave that an employee is expected to accrue in a year at the beginning of the year.
Use
In general, an employee may use up to 40 hours of paid sick leave in a year (generally in one-hour increments):
· For their own health needs;
· To care for a family member;
· For certain public health-related closures; or
· For reasons related to domestic violence, sexual assault, or stalking.
See the text of the law for further details.
Employees may keep and use all of their accrued paid sick leave when they transfer to another division, location, or entity of the same employer, or when a successor employer takes the place of an existing employer.
Carryover
Unused paid sick leave must be carried over to the year following the year it was accrued.
Note: If an employer front-loads the full 40 hours of paid sick leave at the beginning of the year (see Frontloading above), it is not required to carry over unused leave.
Rehires
An employee that is separated from employment with an employer and is rehired within 12 months of separation by the same employer:
· Must have their previously accrued and unused paid sick leave reinstated (unless the employer pays for the accrued leave upon separation); and
· May immediately use and continue to accrue paid sick leave upon rehire.
Note: The law does not require an employer to pay out unused paid sick leave upon an employee’s separation of employment.
Rate of Pay
Paid sick leave is compensated at the employer's regular rate. An employee’s regular rate is calculated by dividing the total of the employee’s hourly wages and other non‑overtime compensation for the workweek (excluding amounts not included under the FLSA and its implementing regulations) by the total number of hours worked in that workweek.
Note: The hourly rate may not be lower than the Virginia minimum wage and may not be reduced by applying a tip credit.
Documentation
An employer may require the following documentation for absences of three or more consecutive workdays, to show the reason for paid sick leave is covered under the law:
· A health care provider’s note;
· Certain legal or law enforcement documents;
· A statement from a victim services provider; or
· An employee’s written statement in certain circumstances.
Note: An employer cannot require an employee to disclose detailed health information or details related to domestic violence, sexual assault or stalking as a condition of using paid sick leave. An employer must treat that information as confidential and cannot disclose it without the employee’s consent (unless otherwise required by law).
Employee Notice
An employee may request paid sick leave orally, in writing, electronically, or by another method acceptable to their employer. When the need for leave is foreseeable, an employee must make a good-faith effort to provide advance notice and schedule leave to avoid disrupting business operations.
An employer that requires an employee to provide notice must maintain a written policy outlining procedures for providing the notice and cannot deny leave based on failure to follow a notice procedure (unless that policy has been provided to the employee).
Additionally, an employer cannot require an employee to find a replacement worker or work an alternate shift to make up for missed time to use their paid sick leave.
Employer Notice
The Commissioner will issue rules on what information must be included in employee notices regarding their rights under the law. The information must be provided in written notices to the employees and workplace postings. Additionally, the notice must explain that employees can file a complaint or take legal action if their rights are violated.
Nonretaliation
An employer cannot:
· Take retaliatory action (discharge, discipline, reduction in hours, or any other adverse employment action) against an employee for requesting or using paid sick leave, filing a complaint, participating in an investigation, or informing others of their rights under the law;
· Count paid sick leave absences under attendance control policies in a manner that results in discipline or other adverse action; or
· Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any rights under the law.
Recordkeeping Requirements
An employer must create and maintain records that document paid sick leave accrual and use for three years. Be on the lookout for further details from the Commissioner.
Penalties
An employer that is found to have violated the law may face penalties. See the text of the law for further details.
Next Steps
- Review leave policies and update them if necessary.
- Watch for additional guidance and the sample notice that must be provided to employees from the Commissioner.
- Once published, provide the sample notice to new hires and existing employees.
- Prepare to begin allowing employees to accrue and use paid sick leave by the applicable effective date.
- Train supervisors on how to handle leave requests.