Given the current political trifecta (where democrats control both houses of the state legislature and the governorship), paid sick leave proponents had high hopes that Virginia would follow other states’ lead and pass legislation to mandate employers provide paid leave, particularly in light of the continuing COVID-19 pandemic. On March 31, 2021, that goal was partially realized when Governor Ralph Northam signed into law House Bill 2137, requiring paid sick leave for home health workers. Coverage under the new law, effective on July 1, 2021, is more narrow than originally proposed; earlier versions of the bill required that employers provide paid sick leave to all “essential workers” in Virginia, like first responders, grocery store employees, home health and domestic workers, and prison personnel. Through amendments in the state senate, coverage was limited to home health workers. Despite its limited application, this new law is viewed as a major victory for proponents of paid sick leave and potentially the first step in Virginia progressing towards requiring all employers to provide paid leave.
Covered Employers, Employees & Family Members
The new law requires all employers that employ a “home health worker” to provide such employees with paid sick leave. “Home health worker” is defined 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”—i.e., workers who provide services to patients enrolled in Medicaid. A home health worker must work an average of at least 20 hours per week or 90 hours per month to be eligible for paid sick leave. The new law provides that paid sick leave is not available, however, to an individual who “(i) is licensed, registered, or certified as a health regulatory board within the Department of Health Professions” (doctors, dentists, nurses, etc.); “(ii) is employed by a hospital licensed by the Department of Health”; or “(iii) works, on average, no more than 30 hours per month.” The state labor department may need to clarify whether the last exception has independent meaning given the weekly and monthly hours that other sections of the law require for coverage.
Covered home health workers can use leave for themselves or to care for or assist a “family member,” which includes a child, grandchild, grandparent, parent, sibling, or spouse, as well as any individual for whom a worker is responsible to provide or arrange care, and any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.
Accrual and Carry-Over
An employer with a bona fide collective bargaining agreement (CBA) or paid leave policy, such as a paid time off policy, that provides an amount of paid leave sufficient to meet the law’s requirements that may be used for the same purposes and under the same conditions as the law requires need not provide additional paid sick leave to a home health worker who is eligible for paid leave under the CBA or policy.
Otherwise, paid sick leave begins to accrue when employment begins, at a rate of at least one hour of paid sick leave for every 30 hours worked. Any unused paid sick leave must be carried over to the year following the year in which it was accrued, although the home health worker cannot accrue more than 40 hours of paid sick leave in a year, unless the employer allows for a higher limit. Under the law, employers may provide all paid sick leave that a home health worker is expected to accrue in a year at the beginning of the year. Currently it is unclear whether this means the law allows “traditional” frontloading—which does not require year-end carry-over—or simply allows employers to advance an amount of leave before employees accrue it.
Covered Uses
The new law allows home health workers to use no more than 40 hours of paid sick leave in one year for the following reasons:
- Mental or physical illness, injury or health condition of an employee or family member;
- Need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of an employee or family member; or
- Preventive medical care for an employee or family member.
Requesting & Documenting Leave
Upon a home health worker’s request, employers must allow them to use paid sick leave. A worker can request leave orally, in writing, by electronic means, or by any other means acceptable to the employer. When possible, the request should include the expected duration of the absence. Home health workers must make good-faith efforts to provide notice of the need for paid sick leave in advance of use, and must make reasonable efforts to schedule leave in a manner that does not unduly disrupt the employer’s operations. Notably, if an employer will require notice of the need to use leave, it must “provide a written policy that contains procedures for its employees to provide notice.” An employer that has not provided a copy of its written policy cannot deny leave based on the worker’s non-compliance with the policy.
For paid sick leave used on three or more consecutive work days, an employer may require reasonable documentation that leave was used for a covered purpose.
Prohibitions
The paid sick leave law includes an anti-retaliation provision. Specifically, employers cannot discharge, discipline, threaten, discriminate against, or penalize a home health worker, or take other retaliatory action regarding a worker’s compensation, terms, conditions, location, or privileges of employment, because this individual has: (i) requested or exercised the benefits provided for in the law or (ii) alleged a violation of the law.
The new law also makes clear that an employer cannot require, as a condition of a home health worker’s taking paid sick leave, that this individual search for or find a replacement worker to cover the hours during which the worker is using paid sick leave, nor can the employer require the worker to work an alternative shift to make up for the use of paid sick leave.
Enforcement
On its face, Virginia's new law does not expressly provide a private cause of action for aggrieved home health workers, nor does it appear to provide a mechanism for administrative enforcement. While it currently is unclear how the new law can be enforced, the safest course for employers of home health workers will be to comply with the law rather than risk becoming part of a case testing whether a right of action is implied or administrative enforcement powers exist.
What’s Next?
Although Virginia’s paid sick leave law, as enacted, only represents a fraction of what proponents have tried to pass, the legislation—even in it scaled-back form—will still have a significant impact as there are approximately 30,000 home health workers in Virginia.1 For employers that currently employ home health workers, now will be a great time to review and update any existing paid sick leave policies and protocols.
Virginia employers should also note that, through this new law, the door may now be open for further efforts in future Virginia legislative sessions to expand a paid sick leave mandate beyond home health workers. The efforts made in supporting a more expansive paid sick leave law will largely depend on the results of the elections to take place in Virginia in 2021, including the governor’s race. In any event, all employers in Virginia should continue to monitor the developments with respect to paid sick leave.
Footnote
