Paternity Leave Laws in Virginia: Your Rights as a New Parent

The Family and Medical Leave Act (FMLA), codified at 29 U.S.C. § 2601, is the primary federal law protecting paternity leave rights. FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave during a 12-month period for the birth of a child and to bond with a newborn. The law applies to employers with 50 or more employees within a 75-mile radius of the worksite. To be eligible, an employee must have worked for the employer for at least 12 months and have worked at least 1,250 hours in the past 12 months.

FMLA leave is unpaid, though employers may require or allow employees to use accrued paid leave such as vacation or personal days concurrently. The law guarantees that the employer must maintain the employee's health insurance benefits during leave and restore the employee to the same or an equivalent position upon return. Violations of FMLA are enforced by the U.S. Department of Labor Wage and Hour Division (WHD).

Additionally, the National Defense Authorization Act amendments created qualifying exigency leave and military caregiver leave, allowing employees to take leave for military family matters. These federal protections supersede state law where state law is less protective.

Virginia does not have a state law requiring employers to provide paternity leave, either paid or unpaid. Virginia Code § 40.1-65.1 establishes the general employment framework but contains no paternity leave mandate. This makes Virginia less protective than federal FMLA in that the state does not create an additional layer of leave protection for new fathers.

For Virginia state employees, the situation differs slightly. State employees covered under the Virginia Personnel Act (Virginia Code § 2.2-3100) may have access to leave benefits under the state's personnel policies, which can include paid leave for childbirth and bonding. However, these are administrative benefits, not statutory protections. Private sector employees in Virginia receive no state-specific paternity leave rights and must rely entirely on federal FMLA eligibility or voluntary employer policies.

Virginia does not recognize paternity leave as a separate protected category under state discrimination law. However, employers must ensure that any paternity leave policy (whether voluntary or mandated by FMLA) is applied without discrimination based on sex, race, or other protected characteristics. An employer cannot deny paternity leave to a father while granting maternity leave to a mother, as this would violate federal Title VII or state human rights principles.

Unlike some states such as California or New York, Virginia has not enacted paid family leave legislation. Employers in Virginia are free to create voluntary paid paternity policies, and some do, but there is no legal requirement to do so. The absence of state law means Virginia employers have complete discretion over paternity benefits, subject only to FMLA's minimums for covered employers.

The primary exception in Virginia is that FMLA does not apply to employers with fewer than 50 employees within a 75-mile radius. Small employers are under no federal or state obligation to provide paternity leave of any kind. This affects millions of Virginia workers in small businesses, farms, and nonprofits with fewer than 50 employees.

A second exception involves employer size calculations. An employer may have more than 50 total employees but fewer than 50 within the worksite's 75-mile radius. In such cases, the employee is not FMLA-eligible even if the parent company is large. This creates a gap for employees in satellite offices or remote locations.

Employees are not eligible for FMLA if they have not been employed for 12 months or have not worked 1,250 hours in the past 12 months. Part-time employees, seasonal workers, and recently hired employees often fall outside FMLA protection. An employee who took unpaid leave earlier in the year may not have accrued enough additional hours to meet the 1,250-hour threshold.

Virginia's at-will employment doctrine creates another exception. An employer in Virginia can terminate an employee for any reason that is not illegal (discrimination, retaliation, violation of public policy). While an employer cannot legally fire someone for taking FMLA leave, an employee not covered by FMLA has no job protection if the employer simply decides not to bring them back after paternity absence. The employer must have a documented reason that does not constitute retaliation, but the burden falls on the employee to prove the real reason.

Employers may also condition FMLA leave on the employee providing medical certification or complying with notice requirements. If an employee does not follow the employer's established leave procedures, the employer may deny FMLA protection. Additionally, employers can require employees to use accrued paid leave before taking unpaid FMLA leave, effectively reducing the amount of unpaid time available.

Step 1 — Document Everything. Keep copies of your leave request, any correspondence with HR or your manager about paternity leave, pay stubs showing how your pay changed, emails discussing your return date, and any statements from coworkers about how the company treated you differently. Save all written communications in a separate folder with dates clearly marked. If you were denied leave or disciplined after returning, document the exact dates, times, statements made, and any witnesses. Take screenshots of emails and messages.

Step 2 — Attempt Internal Complaint. Review your employee handbook for your employer's paternity leave or leave request policy. If your employer has an HR department or employee grievance procedure, file a written complaint describing what happened, the dates, and how it violated company policy or FMLA. Keep a copy and request written acknowledgment of receipt. Document the names and titles of anyone you spoke with. Wait 5-10 business days for a response. This step is not legally required but creates a record and sometimes resolves issues quickly. If internal resolution fails, move forward.

Step 3 — File with the Appropriate Agency. If you believe your employer violated FMLA, contact the U.S. Department of Labor Wage and Hour Division (WHD). The Virginia office is located at 400 North 8th Street, Suite 700, Richmond, VA 23219. Phone: (804) 771-2993. Website: www.dol.gov/agencies/whd. You must file within 2 years (or 3 years if the violation was willful) from the date of the violation. When filing, provide your name, address, phone, employer name and address, dates of employment, dates you requested paternity leave, how the request was denied or how you were treated differently, and names of witnesses. You do not need an attorney to file; WHD accepts complaints online at www.dol.gov/agencies/whd/contact/complaints or by mail.

Step 4 — Investigation Process and What to Expect. The WHD will review your complaint and may contact your employer to request payroll records, leave policies, and an explanation. This process typically takes 30-60 days for initial review. If WHD finds a violation, they will attempt to reach a settlement with the employer. If no settlement is reached, you may pursue a civil action in federal court. The employer will provide information about your job duties, hours worked, pay rate, and leave requests. You may be contacted for additional details. The investigation is confidential; your name will not be publicly disclosed. There is no filing fee, and you do not pay WHD directly.

Step 5 — When to Consult an Attorney. Consult an employment law attorney if: (1) your employer retaliates after you file a complaint; (2) WHD's informal process does not resolve the issue; (3) you want to file a private lawsuit for back pay, damages, and attorney's fees; or (4) you were fired after taking paternity leave and believe it was discriminatory. Most employment attorneys work on contingency (no upfront fee; they take a percentage of any recovery). In Virginia, contact the Virginia State Bar Lawyer Referral Service at (800) 552-3846 or visit www.vsb.org for attorney referrals. An attorney can help you calculate damages (lost wages, benefits, emotional distress) and represent you in settlement negotiations or court.