Applying for Virginia FMLA Leave, Step by Step

Leave rights are one of the areas covered in Virginia labor laws: worker rights and employer obligations. This article covers the mechanics of a single request: whether the employee and the employer both meet the federal test, what notice looks like, which certification form applies, what the employer must send back, and what happens when a request is refused.

Virginia has no state family leave law of its own

The Commonwealth has not enacted a family and medical leave statute for private-sector workers. There is no Virginia paid family leave program, no state leave bank for private employees, and no state agency that approves leave requests. Every private-sector leave request in Virginia is a federal FMLA request, administered by the employer and enforced by the U.S. Department of Labor’s Wage and Hour Division.

The one Virginia-specific overlay applies to people who work for the Commonwealth. Under Va. Code § 2.2-1210, a classified or at-will state employee who has worked for the Commonwealth at least 12 consecutive months receives eight weeks (320 hours) of parental leave at 100 percent of regular salary after the birth, adoption, or foster placement of a child under 18. That leave must be taken within six months of the event and only once per child. The statute says parental leave runs concurrently with FMLA leave, so a state employee taking both is paid for the first eight weeks rather than adding eight weeks onto the federal 12.

Private employees looking for paid time to cover an FMLA absence draw on whatever their employer offers. Virginia paid sick leave is required by state law only for a narrow group of workers; for everyone else, paid leave is a matter of company policy, and an employer can require accrued paid time off to be used during unpaid FMLA leave.

Who counts as an eligible employee

Three conditions in 29 U.S.C. § 2611 have to be true on the date leave begins. The employee has worked for the employer for at least 12 months. The employee worked at least 1,250 hours of service during the 12 months immediately before the leave. And the employer has 50 or more employees at the worksite, or within 75 miles of that worksite.

The 12 months of employment do not have to be consecutive. The 1,250-hour count is actual hours worked, not hours paid, so vacation, holidays, and paid sick time do not count toward it. An employee averaging 24 hours a week year-round clears the threshold; someone working 20 hours a week does not.

Public agencies and public and private elementary and secondary schools are covered regardless of headcount, which is why Virginia county governments, public school divisions, and state agencies are FMLA employers even at small worksites.

How much leave the FMLA provides

29 U.S.C. § 2612 sets the entitlement at 12 workweeks of leave during any 12-month period for the birth or placement of a child, to care for a spouse, child, or parent with a serious health condition, for the employee’s own serious health condition, or for a qualifying exigency arising from a family member’s military deployment. Leave to care for a covered servicemember with a serious injury or illness is longer: 26 workweeks of leave during a 12-month period, and that entitlement is a single, non-renewing block per servicemember per injury.

FMLA leave is unpaid. The employer keeps group health coverage in place on the same terms as if the employee were working, and the employee remains responsible for the usual share of the premium.

Leave does not have to be taken all at once. Leave for a serious health condition can be taken intermittently or on a reduced schedule when medically necessary, counted against the entitlement in the smallest increment the employer’s payroll system uses for other leave. Leave for the birth or placement of a child can be taken intermittently only if the employer agrees.

Telling your employer you need leave

There is no application filed with a government office. The request goes to the employer, and the trigger is notice.

1. Give notice as early as the situation allows

   When the need for leave is foreseeable, a scheduled surgery, an expected birth, a planned adoption, 29 U.S.C. § 2612(e) requires not less than 30 days’ notice before the leave begins. When 30 days is not practicable, notice is due as soon as practicable, which in an emergency generally means the same or next business day.

2. Follow the employer's usual call-in procedure

   An employer may require leave requests to go through the normal absence-reporting process, a supervisor, an HR portal, a third-party leave administrator. Notice given the ordinary way protects the request; notice that skips a known procedure without an unusual reason can delay or defeat it.

3. Say enough to identify the reason as FMLA-qualifying

   The employee does not have to say the words “FMLA.” The notice does have to give the employer enough information to recognize that the absence may qualify: the condition, who it affects, and the expected timing and duration. For a repeat absence tied to a condition already certified, the reference has to be specific enough to connect it to the earlier leave.

4. Wait for the employer's eligibility notice

   Once the employer has notice, it evaluates eligibility and responds in writing on form WH-381, which states whether the employee is eligible or gives at least one reason why not, and lists the obligations attached to the leave.

Medical certification and the 15-day clock

An employer may require a leave request based on a serious health condition to be supported by a certification from a health care provider. 29 C.F.R. § 825.305 sets the timing on both sides. The employer requests certification when the employee gives notice or within five business days after, or within five business days after unforeseen leave starts. The employee then has 15 calendar days after the request to return it, unless returning it sooner is not practicable despite diligent, good faith effort.

The Department of Labor publishes optional-use forms, and an employer may use its own version so long as it asks only for information the regulations allow.

Form WH-380-F covers a family member’s serious health condition. Form WH-384 covers a qualifying exigency arising from a family member’s deployment, and forms WH-385 and WH-385-V cover military caregiver leave for a current servicemember and a covered veteran. Completed certifications go to the employer, not to the Department of Labor.

An employer that doubts a certification can require a second opinion at its own expense, and a third opinion from a jointly selected provider if the first two conflict. The employer cannot ask the employee’s doctor for information beyond what the regulation specifies.

What the employer sends back

After the certification comes in, the employer issues a designation notice on form WH-382. That notice states whether the absence is being counted as FMLA leave and how much of the 12-week entitlement it uses. It is also the form an employer uses to say a certification is incomplete or insufficient.

Two things commonly surprise employees at this stage. The employer, not the employee, decides whether an absence is designated as FMLA leave, an employee cannot decline the designation to save the entitlement for later. And an employer may require accrued paid leave to run concurrently with the unpaid FMLA leave, so a two-week absence can consume both two weeks of vacation and two weeks of the FMLA entitlement.

At the end of leave, an eligible employee is restored to the same position or an equivalent one with equivalent pay, benefits, and conditions. That restoration right is a real limit on the general rule that Virginia is an at-will employment state: an employer may still fire an employee for reasons unrelated to the leave, but not for taking it.

If leave is denied or the job is not restored

Complaints go to the Wage and Hour Division, which has offices in Richmond and Northern Virginia. Filing a complaint is free, requires no lawyer, and can be done by phone. The division investigates, and it can seek back pay, reinstatement, and liquidated damages.

An employee may also sue directly in state or federal court without filing a complaint first. 29 U.S.C. § 2617 gives a two-year window measured from the date of the last event constituting the alleged violation, extended to three years when the violation was willful. Recoverable amounts include lost wages and benefits, interest, an equal amount as liquidated damages unless the employer shows good faith, and attorney’s fees.

If the employment ends during or after leave, the timing of the last payment follows Virginia final paycheck law rather than the FMLA, and accrued paid leave is paid out only to the extent the employer’s own policy or contract promises it.