On June 1, 2021, Gov. Ralph Northam signed into law House Bill 2137. The law, once effective on July 1, 2021, will be codified in at Virginia Code §§ 40.1-33.3 through 40.1-33.6.
Virginia employers, defined under VA Code § 40.1-2 as “an individual, partnership, association, corporation, legal representative, receiver, trustee, or trustee in bankruptcy doing business in or operating within this Commonwealth who employs another to work for wages, salaries, or on commission…” will be required to provide one hour of paid sick leave for every 30 hours worked by a covered home healthcare worker. The law defines an eligible home healthcare worker as “an individual who provides personal care, respite, or companion services to an individual who receives consumer-directed services under the state plan for medical assistance services.” An employee who “(i) is licensed, registered, or certified by a health regulatory board within the Department of Health Professions; (ii) is employed by a hospital licensed by the Department of Health; and (iii) works, on average, no more than 30 hours per month” is not covered under the law.
To be eligible for paid sick leave, an employee who meets the law’s definition of home healthcare worker must work, on average, at least 20 hours per week or 90 hours per month. An employee will begin to accrue paid sick leave at the commencement of employment, but employers are permitted to front load paid sick leave by providing employees with the amount of sick leave one is expected to accrue in a year at the beginning of each year. Moreover, an employer is not required to provide more than 40 hours of accrued paid sick leave in any year; however, an employer may elect to provide accrual levels that exceed the statutory minimum.
Employees are permitted to use paid sick leave to care for their own, or a family member’s “mental or physical illness, injury, or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or an employee’s need for preventive medical care.” The law has an expansive definition of family member. It includes children, biological, adopted or foster, stepchild, or any individual for whom the employee has a legal obligation to care for, spouses who are legally married to an employee, grandparents, grandchildren, siblings of the employee, or any person who his related by blood to the employee or any person “whose close association with an employee is the equivalent of a family relationship.”
Employers may require an employee to provide notice in order to use paid sick leave but cannot condition an employee’s use of paid sick leave on the employee finding a replacement to cover any missed shift or “make up” missed time through an alternate shift arrangement. In the case of an employee missing work for three or more consecutive workdays, an employer may require the employee to produce reasonable documentation to show the use of leave was for a bona fide purpose covered under the law. Finally, the law strictly prohibits employers from retaliating or otherwise penalizing an employee for taking paid sick leave.
This law is of limited applicability and is largely a showing of a paradigm shift in Virginia, where previous attempts in the Commonwealth to enact a paid sick leave laws have failed. As enacted, the law is paired down from previous proposals. In the House Bill’s initial draft, the Commonwealth was preparing to require employers to provide paid sick leave for all “essential” workers. The definition of which would have included all healthcare workers, law enforcement officer and first responders, workers in essential retail businesses, food manufacturing and supply workers, educators and support staff, transportation workers, and similar related professions. As revised, however, the law will only apply to home healthcare workers.
Despite the limited applicability of the law, Virginia employers should take notice that the legislature has now been successful in implementing some form of statutorily required paid sick leave. This aligns the Commonwealth with its many neighboring jurisdictions, including Maryland and the District of Columbia, who have paid sick leave laws on their books. Lawmakers will likely aim to expand coverage to employees in other industries in the future, and a more expansive required paid sick leave law may be on the horizon for Virginia employers.