In addition to words and terms defined in § 60.2-800 of the Code of Virginia, the following words and terms when used in the Act or in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Act" means Chapter 8 (§ 60.2-800 et seq.) of Title 60.2 of the Code of Virginia.

"Adverse determination" means either a complete denial of benefits, or a determination to award a claimant benefits in a frequency or duration less than the claimant requested, or a determination to award a wage replacement amount less than what the claimant believes they are entitled to under the Act.

"Approved Private Insurance Plan Administrator (APIP Administrator)" means an entity tasked with the administration of an approved private insurance plan, and may include an employer, a third-party administrator, a labor union, or an insurer.

"Average weekly wages" means the covered individual’s wages earned within the base period defined in § 60.2-204 of the Code of Virginia divided by 52, except that if the covered individual worked fewer than four consecutive quarters during their base period, the calculation will exclude quarters for which the covered individual had no reported wages and quarters for which the reported wages are attributable to less than a full quarter of work. "Benefit week" means a calendar week ending at 11:59 PM on Saturday.

"Business day" means a day other than a Saturday, Sunday, or a legal holiday within the meaning of § 2.2-3300 of the Code of Virginia.

"Bonding leave" means leave taken in accordance with § 60.2-802 A 1 of the Code of Virginia, because of birth, adoption, or placement through foster care during the first year after the birth, adoption, or placement of that child. “Calendar quarter” has the same meaning as provided in § 60.2-207 of the Code of Virginia. “Claim” means a request for payment upon application for family and medical leave benefits.

“Claimant” means a person who has submitted an application for family and medical leave benefits, regardless of whether the person is a covered individual as set forth in § 60.2-800 of the Code of Virginia. “Commission” means the Virginia Employment Commission as defined in § 60.2-108 of the Code of Virginia. “Commonwealth Plan” means the paid family and medical leave insurance program established and administered by the Virginia Employment Commission. “Continuous leave” means one non-recurring, uninterrupted period of leave due to a qualifying event.

“Day” means calendar day and “days” means consecutive calendar days, unless otherwise specified. “Designated representative” means a person designated by a claimant or the claimant’s legal representative to act on their behalf with regards to family and medical leave benefits. A designated representative must satisfy the requirements established by 16VAC5-90-20 K.

“Employee” means an individual employed by an “employer.” For purposes of this regulation, “employee” further refers to employees localized to Virginia pursuant to 16VAC5-90-40 D.

“Employer” has the same meaning as provided in § 60.2-210 of the Code of Virginia, except that, for the purposes of this chapter, “employer” does not include the Commonwealth. “Employment” has the same meaning provided in §§ 60.2-212 and 60.2-219 of the Code of Virginia.

“Intermittent leave” means leave taken in separate blocks of time due to a single qualifying event.

“New claim” is an additional request for payment upon application for family and medical leave benefits filed after an initial claim within that claimant’s current benefit year.

“Qualifying event” means any of the events set forth in § 60.2-802 of the Code of Virginia which would make a covered individual eligible for family and medical leave benefits under the Act.

“Reduced leave schedule” is a leave schedule that reduces an employee’s usual number of working hours per workweek.

“Self-employed individual” means a Virginia resident who either: (i) conducts a trade or business as a sole proprietor or an independent contractor; (ii) is a member of a partnership that carries on a trade or business; (iii) is otherwise in business for themselves, including as an individual who is correctly classified as an independent contractor under § 60.2-212 C of the Code of Virginia

“Typical workweek” means the average number of hours worked per week by an employee within the last two quarters prior to the effective date of application.

“Wage base” means the maximum annual amount of an employee’s wages subject to withholding by payroll deductions or through contributions.

“Wages” has the same meaning as in § 60.2-229 of the Code of Virginia, except that the wage base in § 60.2-229 B 1 of the Code of Virginia does not apply and the wage base in § 60.2-806 G of the Code of Virginia does apply.

Paid Family and Medical Leave Program administration.

1. Pursuant to Chapter 8 (§ 60.2-800 et seq.) of Title 60.2 of the Code of Virginia, it shall be the duty of the Commission to establish and administer a paid family and medical leave insurance program and promulgate all rules and regulations necessary for implementation.

2. Investigations. The commission has the authority and discretion to initiate investigations, audits, or any other compliance oversight activities related to any provision of the Act upon its own initiative; upon referral from an agency of the federal government, another agency of the Commonwealth, its political subdivisions, or another state, locality, or its political subdivisions; or upon the receipt of a complaint filed by an adversely affected individual or an interested third party.

a. Nothing in the Act limits the commission’s authority to conduct pre-investigation fact-finding, facilitate settlements, or make referrals to other criminal or civil enforcement agencies.

b. The commission may investigate potential violations of the Act by any person, entity, or private plan.

c. The commission may utilize the following as part of an investigation: (i) interviews of parties or witnesses; (ii) information gathering, fact-finding, and reviews of written submissions; and (iii) any other lawful techniques that enable the commission to assess compliance with the Act.

d. Notwithstanding this subsection, potential violations of §§ 60.2-808 and 60.2-809 of the Code of Virginia will be investigated as provided in 16VAC5-90-50.

3. More generous employer policies encouraged. Nothing in this chapter shall be construed to prevent or discourage employers from electing to provide more generous benefits to employees, including by: voluntarily providing employees additional weeks of leave paid by the employer or additional weeks of unpaid leave; providing additional compensation, such as paying wages in excess of the family and medical leave benefits provided under this Act to replace 100% of an employee’s wages while on leave; or paying an employee’s share of payroll contributions owed under the Act.

4. Information requests. The commission may contact a claimant, employer, any individual with a role in certifying claims under this chapter, or APIP Administrators, to request any additional information that the Commission deems necessary to review a claim, calculate benefits, promote compliance with the Act and this chapter, or otherwise administer the Act. Any individual or entity that receives a request for information from the commission must provide the requested information no later than 14 days from the date of the request, unless the commission sets another deadline by these regulations or its information request.

5. Savings clause. The Act shall not be construed to reduce rights available to an employee under other civil rights and worker protection laws, including the Americans with Disabilities Act, the Virginia Human Rights Act, and §§ 40.1-33.6:1 and 40.1-33.6:7 of the Code of Virginia.

A. Definitions. In addition to the terms defined in § 60.2-800 of the Code of Virginia, the following terms when used in this section shall have the following meanings, unless otherwise indicated:

"Pervasive harassment" means harassment on the basis of any protected trait under § 2.2-3905 of the Code of Virginia that would, from the perspective of a reasonable person, create a hostile environment in a work, educational, housing, or similar environment. Relevant factors include: the frequency of the harassing conduct; the severity of the harassing conduct; whether the conduct was physically threatening or humiliating; and whether the harassment was committed by a supervisor, teacher, landlord, or other person with authority over the claimant. The more severe the harassing conduct, the less frequently it needs to occur to constitute pervasive harassment.

B. Eligibility for family and medical leave benefits, generally.

1. Qualifying events. A covered individual is only eligible to use family and medical leave benefits for a qualifying event described in § 60.2-802 of the Code of Virginia. If the absence is for a reason other than a qualifying event described in § 60.2-802 of the Code of Virginia, family and medical leave benefits are not available.

2. Monetary eligibility. Family and medical leave benefits are only available to people who meet the definition of “covered individual” under § 60.2-800 of the Code of Virginia, which includes a requirement for individuals who are not self-employed to meet the monetary eligibility criteria set forth in § 60.2-612 A 1 of the Code of Virginia.

a. To determine whether a claimant has met the monetary eligibility criteria set forth in § 60.2-612 A 1 of the Code of Virginia, the commission will rely on wages reported to the commission by the employer pursuant to 16VAC5-90-40 A. If a claim for benefits is denied because the reported wages do not establish that the claimant has met the monetary eligibility criteria, the claimant may request a reconsideration pursuant to 16VAC5-90-110 B and submit additional wage documentation to the commission or file an appeal pursuant to 16VAC5-90-110 C.

b. A claimant is not required to meet the monetary eligibility criteria set forth in § 60.2-612 A 1 of the Code of Virginia by earning wages subject to contributions from their current employer.

3. Serious health condition. As explained in § 60.2-800, a serious health condition that constitutes a qualifying event under the Act means an illness, injury, impairment, pregnancy, recovery from childbirth, or physical or mental condition that involves inpatient care in a hospital, hospice, or a residential medical care facility or continuing treatment by a health care provider.

a. The term “incapacity” means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

b. The term treatment includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of leave under the Act.

c. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for leave under the Act. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this subdivision are met.

This subdivision shall be construed consistently with 29 C.F.R. § 825.102 (2025), 29 C.F.R § 825.113 (2025), and precedent applying those sections.

4. Inpatient care. Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in 16VAC5-90-20 B 3 a or any subsequent treatment in connection with such inpatient care.
This subdivision shall be construed consistently with 29 C.F.R. § 825.114 (2025) and precedent applying that section.

5. Continuing treatment. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

a. Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

(3) The requirement in 16VAC5-90-20 B 5 a (1) and 16VAC55-90-20 B 5 a (2) for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

(4) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

(5) The term “extenuating circumstances” in 16VAC5-90-20 B 5 a (1) means circumstances beyond the employee's control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period.

b. Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits, defined as at least twice a year, for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time, including recurring episodes of a single underlying condition; and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

c. Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.

d. Conditions requiring multiple treatments. Any period of absence to receive multiple treatments, including any period of recovery therefrom, by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

e. Conditions requiring multiple treatment. Absences attributable to incapacity under 16VAC5-90-20 B 5 b and 16VAC55-90-20 B 5 c of this subdivision qualify for leave under the Act even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

This subdivision shall be construed consistently with 29 C.F.R. § 825.102 (2025), 29 C.F.R. § 825.115 (2025), and precedent applying those sections.

6. Pregnancy. Pursuant to § 60.2-800, pregnancy, childbirth, postpartum care, and pregnancy loss are per se serious health conditions. A need for fertility treatment and assisted reproduction may be a serious health condition if the conditions of 16VAC5-90-20 B 5 a (1) and 16VAC5-90-20 B 5 a (2) are met.

7. Leave for treatment of substance abuse. Substance abuse may be a serious health condition if the conditions of subdivisions B 3, B 4, and B 5 of 16VAC5-90-20 are met. However, leave under the Act may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for leave.

This subdivision shall be construed consistently with 29 C.F.R. § 825.119 (2025), and precedent applying that section.

8. Bonding leave. Rights under the Act related to bonding leave under § 60.2-802 A 1 of the Code of Virginia are limited to parents, including biological parents, adoptive parents, foster parents, stepparents, individuals standing in loco parentis to the child, parents through surrogacy, and domestic partners of any individuals listed in this subdivision. Bonding leave is available during the first year after the birth, placement, or adoption of a child.

9. Eligibility for safety leave. A claimant who is seeking safety services related to domestic violence, sexual assault, pervasive harassment, or stalking for purposes of determining eligibility for leave benefits under § 60.2-802 A 6 of the Code of Virginia, must provide the commission with the information required in 16VAC5-90-20 G 9. A claimant seeking leave under § 60.2-802 A 6 of the Code of Virginia need not prove that a court has determined that the individual was the victim of domestic violence, sexual assault, pervasive harassment, or stalking.

10. Work authorization. Covered individuals must be authorized to work in the United States at the time they apply for family and medical leave benefits. Applications must include information sufficient for the commission to verify work authorization, including:

a. The claimant’s date of birth; and

b. Either (1) the applicant’s Social Security Number, or (2) a number associated with an immigration document from a list of documents accepted by the commission.

11. Non-Discrimination on the basis of sex or gender. The rights provided by the Act apply equally to covered individuals regardless of their sex or gender.

12. Parents. Rights provided by the Act are available to parents regardless of whether they gave birth to a child. Rights provided by the Act are equally available to biological parents, adoptive parents, foster parents, stepparents, individuals standing in loco parentis to the child, parents through surrogacy, and domestic partners of any individuals listed in this subdivision.

13. First date of benefits. Family and medical leave benefits are only available for qualifying leave taken on or after December 1, 2028.

14. Separation from employment. If a covered individual’s continuous leave claim is approved, the approved leave is not impacted by a subsequent separation from employment, except when the individual receives unemployment benefits in accordance with 16VAC5-90-70 D or when the commission determines that the individual is ineligible for benefits in accordance with the Act.

C. Amount of benefits.

1. Weekly benefit amounts, generally. As established by § 60.2-804 of the Code of Virginia, a covered individual’s weekly benefit amount will be 80 percent of such covered individual’s average weekly wages, subject to the maximum and minimum benefit amounts set forth in § 60.2-804 of the Code of Virginia. The commission will calculate a covered individual’s weekly benefit amount based on the individual’s average weekly wages as described by 16VAC5-90-20 C 3.

2. Annual adjustments. The commission shall annually adjust the maximum and minimum weekly benefit amount in accordance with § 60.2-804 of the Code of Virginia. On or before the first day of January every year, the commission will adjust any open claims to reflect the change in the maximum weekly benefit amount.

3. Average weekly wages. The commission will calculate a covered individual’s average weekly wages based on their wages subject to contributions or, for a self-employed individual electing coverage, average weekly net earnings.

a. To determine a covered individual’s average weekly wages, the commission will rely on earnings reported to the commission pursuant to 16VAC5-90-40 A 3.

b. If the commission believes that earnings were incorrectly reported to the commission pursuant to these rules, the commission may request documentation of that individual’s earnings from the individual, the individual’s employer, or both. The commission may rely on that documentation and any other information that is reasonable or reliable in order to calculate benefits in accordance with wages that should have been reported under the Act.

c. If the commission is unable to determine a covered individual’s weekly benefit amount because of an employer’s failure to submit complete records required by 16VAC5-90-40 A 3, the commission may approximate that covered individual’s weekly benefit amount based on the covered individual’s previous wages, information provided by a claimant, or other information available to the commission.

4. Prorated benefits for intermittent leave. The commission will prorate benefits for a covered individual receiving family and medical leave benefits for intermittent or reduced schedule leave as set forth in 16VAC5-90-90 A.

5. Recalculations of wage benefits. The commission will recalculate an individual’s weekly benefit amount for ongoing claims of family and medical leave benefits if a change in an employee’s work schedule triggers a recalculation in accordance with 16VAC5-90-90 D, if the outcome of a reconsideration or appeal results in a change in awarded benefits, or for other reasons authorized by the commission. If the recalculation increases or decreases the weekly benefit amount, the commission will notify the covered individual and their employer and will adjust future payments accordingly.

D. Duration of leave.

1. Duration, generally. The commission will approve family and medical leave benefits for a reasonable duration in accordance with the details of the application, the documentation submitted, and other information available to the commission. The commission will not pay benefits for leave that extends beyond the approved duration of a claim, unless a claimant applies for and is approved for a modification to the duration of their claim pursuant to 16VAC5-90-20 J or 16VAC5-90-90 D

a. The awarded benefits must not exceed the duration limits set forth in §§ 60.2-802 and 60.2-803 of the Code of Virginia.

b. A claimant whose leave spans the end of one benefit year and the beginning of the following benefit year may continue to receive benefits without submitting a new application for benefits.

c. A covered individual may be eligible for family and medical leave benefits in connection with more than one qualifying event per benefit year. In those circumstances, the commission may approve multiple claims for the same covered individual within a benefit year, so long as the awarded benefits do not exceed the duration limits set forth in §§ 60.2-802 and 60.2-803 of the Code of Virginia.

2. Weekly usage. As provided by § 60.2-803 of the Code of Virginia, family and medical leave benefits are available for up to 12 weeks in a benefit year. A covered individual taking continuous leave will use one week of leave when they take a full workweek of leave.

a. If a covered individual begins a continuous leave partway through their workweek, the individual’s usage for that week will be determined by dividing the number of hours of family and medical leave taken that week by the total number of hours worked in the covered individual’s typical workweek. For example, a covered individual whose typical workweek was 40 hours a week and who began a continuous leave after working 24 hours in a week would use 2/5 of a week.

b. The weekly usage of a covered individual taking intermittent or reduced schedule leave shall be calculated as determined in 16VAC5-90-90 A 2.

3. Holidays. When a holiday occurs while a claimant is on family and medical leave benefits:

a. For a claimant on continuous leave, holidays will count towards a claimant’s weekly usage of leave and the covered individual will receive uninterrupted wage replacement benefits for a holiday that occurs during a week of continuous leave.

b. For a claimant approved for intermittent leave or a reduced leave schedule, the holiday will only count against the employee’s weekly usage of leave, and the employee will only receive wage replacement benefits for the holiday, if the employee was otherwise scheduled and expected to work during the holiday.

c. For purposes of this subdivision, a “holiday” means any day designated by the employer as a holiday.

4. Modifying approved claims. A covered individual or their designated representative may request a modification to the duration of approved leave, pursuant to 16VAC5-90-20 J.

5. Information requests. Claimants, employers, and private plan administrators must provide the commission with pay stubs, schedules, and any other information requested by the commission for purposes of calculating family and medical leave benefits.

6. Temporary closures. Where an employer’s business activity has ceased and the covered individual would not be expected to report to work for one or more weeks, the days the employer’s activities have ceased shall only count towards the covered individual’s 12 weeks of available family and medical leave if the covered individual is on continuous leave and received wage replacement benefits for that week. Temporary closures of less than one week shall count towards a covered individual’s leave.

E. Payment of benefits by the commission.

1. When benefits will be paid. As described in § 60.2-803 of the Code of Virginia, the first payment of family and medical leave benefits shall be made to a covered individual no later than 14 days after (i) the commission has approved an initial claim pursuant to this chapter or (ii) the first day of leave connected to a claim that was pre-approved and for which leave has begun as described in 16VAC5-90-20 H, whichever occurs later. Subsequent payments shall be made at least every 14 days thereafter.

2. How benefits will be paid. A claimant may elect to receive family and medical leave benefits by direct deposit into a claimant’s bank account, onto a benefits card, or by other means approved by the commission.

F. Applications to the commission for benefits.

1. Application required. To receive family and medical leave benefits, the claimant or the claimant’s designated representative must apply to the commission for benefits through an online method approved by the commission. A claimant must provide all information required by the commission for purposes of determining eligibility, calculating benefits, and administering family and medical leave benefits.

2. Timeline for applications. Unless otherwise authorized by the commission, a claimant may submit an application for benefits up to 60 days prior to a planned benefit start date and up to 30 days after the leave has begun. Claimants may submit an application up to 30 days after the leave has begun, regardless of whether or not the qualifying event represents an unforeseeable emergency.

a. If the commission receives an application more than 30 days after the leave has begun, the claimant may submit information establishing good cause for late submission, as defined in 16VAC5-90-20 F 4, for the claimant’s failure to submit the application within 30 days.

b. A claimant who submits an application for family and medical benefits more than 30 days after the leave begins and did not have good cause for the late submission will only be eligible for family and medical leave benefits to cover leave that occurred during the 30 days immediately preceding the date that the claimant files a complete application. Any leave taken prior to the 30 days immediately preceding that date is not eligible for benefits.

c. Whenever a claimant applies for leave prior to a planned benefit start date, the commission may pre-approve the claim. In those circumstances, the claimant must notify the commission of the date that the leave began within 30 days, absent good cause. The claimant must also provide any supporting information required by the commission to verify the date that the leave began.

3. Application requirements: When a claimant submits an application for benefits, the commission will provide confirmation to the claimant that it received the application and will review the application.

a. If the commission needs more information or documentation to determine whether the claimant is eligible for benefits, it will make a reasonable effort to obtain the additional information or documentation. An application will not be considered complete until such requested information is received by the commission.

b. If an application is not properly completed within 60 days after an application is submitted to the commission, the application will be closed and the commission will take no further action, absent a finding of good cause for the late filing based on evidence submitted by the claimant. The commission will notify the claimant prior to any such closure. The commission’s notice to the claimant will include a description of the claimant’s opportunity to establish good cause to keep the application open.

c. Upon the determination by the commission that an application is complete, the commission will notify the claimant and their employer within five business days that the application was completed and will process the complete application as a pending claim.

4. Good cause. For purposes of this section, a claimant has good cause for late submission of their application, or late submission of other information, if a reasonably prudent person under the same circumstances would have been prevented from complying with deadlines established by this chapter. In determining whether a claimant has good cause for late submission, the commission shall consider the totality of the circumstances, including:

a. Whether the claimant was provided timely and adequate notice of their rights under this Act by their employer pursuant to 16VAC5-90-40 E;

b. Factors outside the claimant’s control which prevented a timely action, such as a health care provider or other certifying party’s delay in completing a form needed to claim benefits;

c. The claimant’s physical or mental impairment, particularly if the impairment is related to the request for family and medical leave benefits;

d. Administrative error by the commission or its representatives;

e. Whether the claimant acted diligently in submitting the request once the cause for the late request no longer existed;

f. The total length of the delay, including whether the delay affects the ability of the commission or a private plan administrator to determine the validity of the request for family and medical leave benefits; and

g. Good-faith error, provided that in determining whether good faith error constitutes good cause for late filing, the commission or private plan administrator shall consider the length of the delay, any prior history of such errors on the part of the claimant, and whether the claimant otherwise acted with due diligence.

The commission may require the claimant to submit any additional information that the commission deems necessary to determine whether the claimant had good cause for late submission or late filing. The claimant is responsible for providing any additional information requested by the commission for purposes of a good cause determination.

5. Consent to share information. As a condition of applying for benefits, a claimant:

a. Must consent to the commission sharing information with the employer that is necessary to:

(1) Provide required notice to an employer pursuant to this regulation, including notice that a claimant has filed an application for benefits, notice that benefits have been approved or denied, and notice of a request for reconsideration;

(2) Comply with federal or state tax laws or regulations;

(3) Coordinate family and medical leave benefits with concurrent FMLA leave and any other compensation or benefits for which the claimant may be eligible, including the wage replacement amount and the type of leave; and

(4) Fulfill other purposes that the commission deems necessary for administration of the program.

b. The commission will not share a claimant or a claimant’s family member’s specific medical diagnosis, medical history, specific medical condition, or similar personal health details with the claimant’s employer.

G. Required documents and certifications.

1. Certification, generally. To receive family and medical leave benefits, a claimant must satisfy all applicable certification requirements set forth in § 60.2-802 of the Code of Virginia, required by this chapter, or otherwise required by the commission.

2. Birth of a child. An application for bonding leave due to the birth of a child must include the following documentation submitted by the claimant, a health care provider, or a health care provider’s designee:

a. Proof of birth, which may include: (1) such child’s birth certificate; or (2) a complete “Birth Certification Form – Health Care Provider” from a health care provider who provided care during birth or recovery;

b. Proof of parental status or in loco parental status, which may include: (i) such child’s birth certificate; (ii) where appropriate, a complete “Health Care Provider – Birth Certification Form” from a health care provider who provided care during birth or recovery; or (iii) other records establishing parenthood or in loco parentis status; and

c. Any other reasonable information or documentation necessary to determine the eligibility of the claim for benefits, as required by the commission.

3. Adoption. An application for bonding leave to care for a child because of an adoption must include the following documentation submitted by the claimant, a representative of an adoption agency, or a health care provider or such health care provider’s designee

a. Proof of adoption placement, which may include: (1) a complete “Adoption Certification Form—Adoption Agency” from a representative of an adoption agency involved in such placement; or (2) a complete “Adoption Certification Form—Health Care Provider” from such child’s health care provider or physician; and

b. Any other reasonable information or documentation necessary to determine the eligibility of the claim for benefits, as required by the commission.

4. Foster placement. An application for bonding leave because of placement through foster care must include the following documentation submitted by the claimant, a representative of a foster care agency, or a health care provider or such health care provider’s designee:

a. Either:

(1) Documentation that the claimant is either a licensed or certified foster parent, that the child has been placed in their care, and the date that the child was placed in their care, which may include: (a) a complete “Foster Care Certification Form—Foster Care Provider” from a representative of an adoption agency involved in such placement; or (b) a complete “Foster Care Certification Form—Health Care Provider” from such child’s health care provider or physician; or

(2) Documentation from an adoption or foster care agency, the Virginia Department of Social Services or equivalent state agency, a local health department, or a court indicating a kinship or emergency placement was necessary to provide for the immediate care and safety of a minor child, and the person will be standing in loco parentis through a power of attorney or other legal designation, and the date of the emergency placement; and

b. Any other reasonable information or documentation necessary to determine the eligibility of the claim for benefits, as required by the commission.

5. Family member’s serious health condition. An application for leave necessary to care for a family member with a serious health condition must include the following documentation submitted by the claimant, the family member’s health care provider, or such health care provider’s designee:

a. A “Serious Health Condition Certification – Care for a Family Member Form” completed and signed by the family member’s health care provider or such health care provider’s designee. This Certification Form will include all information deemed necessary by the commission, including:

(1) The probable duration of the serious health condition, including the approximate date the condition commenced or is expected to commence;

(2) The anticipated treatment schedule, if applicable and known;

(3) Appropriate facts that describe the serious health condition within the knowledge of the health care provider, including facts that establish that the family member has a serious health condition within the meaning of the Act; and

(4) Appropriate facts establishing that the condition requires the covered individual to care for a family member and an estimate of the amount of time required to provide the care;

b. A “Family Relationship Certification Form” completed and signed by the claimant attesting to the qualifying relationships; and

c. Additional information, documentation, or appropriate medical facts reasonably necessary to determine the eligibility of the claim for benefits, as required by the commission.

6. Own serious health condition. An application for leave necessary because of the claimant’s own serious health condition must include the following documentation submitted by the claimant, their health care provider, or their health care provider’s designee:

a. A “Serious Health Condition Certification – Own Serious Condition Form” completed and signed by the claimant’s health care provider or their health care provider’s designee. This Certification Form will include all information deemed necessary by the commission, including:

(1) The probable duration of the serious health condition, including the approximate date the condition commenced or is expected to commence;

(2) The anticipated treatment schedule, if applicable and known;

(3) Appropriate facts that describe the serious health condition within the knowledge of the health care provider, including facts that establish that the claimant has a serious health condition within the meaning of the Act;

(4) Appropriate facts establishing that the claimant is unable to perform the functions of the claimant’s position due to such condition; and

b. Additional information, documentation or appropriate medical facts reasonably necessary to determine the eligibility of the claim for benefits, as required by the commission.

7. Caring for a covered service member. A claimant may apply for leave to care for a family member or their next of kin who is a covered service member within the meaning of § 60.2-800 of the Code of Virginia and who has a serious health condition. An application for leave to care for a covered service must include: (i) all of the documentation required by 16VAC5-90-20 G 5; and (ii) an attestation by the claimant that the health condition is connected to the covered service member's military service.

8. Qualifying exigency leave. An application for leave due to a need for qualifying exigency leave must include the following documentation submitted by the claimant:

a. A copy of the family member’s active-duty orders, rest and recuperation orders, or other documentation issued by the Armed Services that indicates that the service member is on covered active duty or call to covered active-duty status and the dates of the covered service member’s covered active-duty service;

b. A copy of a “Military Exigency Leave Certification Form” completed and signed by the claimant; and

c. Any other reasonable information or documentation necessary to determine the eligibility of the claim for benefits, as required by the commission.

9. Domestic violence, harassment, sexual assault, or stalking. An application for leave to seek safety services related to domestic violence, pervasive harassment, sexual assault, or stalking must include the following documentation submitted by the claimant, a health care provider or a health care provider’s designee, or a victim services provider:

a. One of the following:

(1) Documentation that the individual is seeking safety services in the form of either (i) a “Safety Services—Health Care Provider Certification Form” completed and signed by the claimant’s health care provider or (ii) a “Safety Services—Victim Services Provider Certification Form” completed and signed by a victim services provider who has provided services to the claimant;

(2) Documentation that the individual is seeking safety services for a family member in the form of either (i) a “Family Member Safety Services—Health Care Provider Certification Form” completed and signed by the claimant’s health care provider or (ii) a “Family Member Safety Services—Victim Services Provider Certification Form” completed and signed by a victim services provider who has provided services to the claimant;

(3) A protective order, police report, or court order showing that the claimant or a family member for whom they are caring has reported domestic violence, pervasive harassment, sexual assault, or stalking; or

(4) Any other documentation approved by the commission to prove that the claimant is seeking leave related to domestic violence, pervasive harassment, sexual assault, or stalking;

b. For a claimant seeking leave to care for a family member, a “Family Relationship Certification Form” completed and signed by the claimant attesting to the qualifying relationships; and

c. Any other reasonable information or documentation necessary to determine the eligibility of the claim for benefits, as required by the commission.

10. Additional family members. Under § 60.2-800 of the Code of Virginia, a family member includes a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner of an employee (including those with step, foster, or adopted relationships) and includes any person who: (i) either regularly resides in a covered individual’s home or who has a relationship with the covered individual that creates an expectation that the covered individual care for such individual, and (ii) who depends on the covered individual for care.

a. The commission will require a claimant seeking family and medical leave benefits to care for a family member who is not a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner to submit additional information sufficient to demonstrate a familial relationship within the meaning of § 60.2-800 of the Code of Virginia before the claim may be approved.

b. To determine whether a covered individual has a relationship with a family member who is not a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner, the commission will look to the totality of circumstances surrounding the relationship, including the following non-dispositive factors:

(1) Emergency contact designations;

(2) The nature of the relationship;

(3) The prior provision of care, including prior presence at health- or safety-related appointments;

(4) Shared financial responsibility, including shared leases, common ownership of real or personal property, or joint liability for bills;

(5) Life insurance, retirement account, and other beneficiary designations;

(6) Power of Attorney designations; and

(7) Cohabitation and the duration thereof. However, a person who simply resides in a covered individual’s home with no expectation that the covered individual care for that person is not a family member under § 60.2-800 of the Code of Virginia.

c. The commission shall apply a rebuttable presumption that the child, grandchild, grandparent, parent, or sibling of a covered individual’s spouse or domestic partner is a family member of the covered individual for purposes of the Act due to the nature of the relationship.

d. This subdivision shall not apply to the following family members: a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner of an applicant, including those with step, foster, or adopted relationships.

11. Development of certification forms. Only Certification Forms published by the commission shall satisfy the terms of this section. In addition to meeting the minimum requirements established by § 60.2-802 of the Code of Virginia, certifications must include all information required by the commission’s Certification Forms.

12. Health care providers. Applications for benefits requiring certification by a health care provider must be reviewed and signed by a health care provider who has treated or evaluated a covered individual or their family member in connection with the qualifying event associated with the leave. Alternatively, a certification may be reviewed and signed by that provider’s designee. The health care provider may not be the claimant or a family member of the claimant.

H. Review of applications and initial determinations.

1. Timeline. After the commission determines that an application is complete, the commission will review the claim and make an initial determination within 14 days. The commission will provide the claimant with notice of its initial determination within five business days of making an initial determination.

2. Clarification, authentication, and information requests. The commission may contact a claimant, employer, health care provider, foster care agency, victim services provider, or any other individuals with a role in certifying claims under this chapter to request additional information needed to review a claim, authenticate a certification or other information, clarify a response, or to calculate benefits.

a. In any request for clarification, authentication, or information, the commission may set a deadline for responding to the commission’s request. The commission may deny a claim for failure to provide clarification, authentication, or additional information requested by the commission by the deadline set in the commission’s request, absent good cause. It is the claimant’s responsibility to provide the commission with complete information needed to evaluate a claim.

b. Nothing in this section prohibits a claimant from supplementing their application before an initial determination on the claim.

3. Pre-Approval. When the commission makes an initial determination on a claim in relation to leave that will begin in the future, the commission may pre-approve the claim pending the commencement of the leave. The covered individual is responsible for notifying the commission once the leave begins within 30 days, absent good cause. The commission will not issue a complete approval of the claim or pay benefits on a claim until the claimant notifies the commission that their leave has begun and provides any additional information requested by the commission to approve the claim.

4. Continuing investigations. An award of benefits does not preclude future investigation or oversight by the commission.

I. Notice from the commission regarding a claim for benefits.

1. Upon filing. Upon the determination by the commission that an application is complete, the commission will notify the claimant and the employer from which the claimant is seeking leave within five business days that the application was completed. When the commission provides notice that an application has been completed, the commission shall include a statement of the rights and responsibilities set forth in §§ 60.2-808 and 60.2-809 of the Code of Virginia.

2. Notification of determination. Once the commission has made a determination on a claim, the commission will notify both the claimant and the employer from which they are taking leave of the outcome. The commission will send separate notices to the claimant and the claimant’s employer.

a. If the outcome of the determination is to approve a claim for benefits, the commission’s notice to both the claimant and to the claimant’s employer will include the leave start date, the leave duration, the weekly benefit amount, any denied segments of requested leave, the claimant’s work schedule upon which benefits were based, and, where applicable, a description of any reduced leave schedule or intermittent leave schedule for which the commission will pay benefits.

b. If the outcome of the determination is to approve a claim for benefits, upon the employer’s valid request, the commission will share with the employer the type of leave. The commission will also provide the claimant’s employer with any additional information needed to coordinate benefits. The commission will not share an employee or an employee’s family member’s specific medical diagnosis, medical history, specific medical condition, or similar personal health details.

c. If the outcome of the determination is a denial of benefits, the commission’s notice to the claimant will explain the reason for the benefits denial and identify information or documentation necessary to perfect their claim for benefits. The commission’s notice to the claimant’s employer will state that the claim for benefits has been denied, include the date of the denial, and include a statement of the claimant’s appeal rights.

d. Denial of benefits does not preclude a claimant from applying for benefits for a different qualifying event or after a change in material circumstances, unless the claimant was disqualified for fraud, as discussed in 16VAC5-90-60.

e. When providing claimants with notice of its initial determination, the commission will attach a written statement of a claimant’s reconsideration and appeal rights. This notice will clearly state the manner in which a claimant may seek reconsideration of the initial determination or file an appeal.

3. Notice of extension. When the commission makes a determination on a covered individual’s application to extend the duration of their claim under 16VAC5-90-20 J, the commission will notify both covered individual and the covered individual’s employer from which they are taking leave of the outcome. The commission shall send separate notices to the covered individual and the covered individual’s employer providing the same information required by 16VAC5-90-20 I.

4. Employer response to notice of claims. Employers may respond to a notice from the commission and provide any additional information relevant to a claimant’s claim for benefits within seven days of the date the notice is issued. Employers or administrators must respond to the commission’s notice in a manner approved by the commission. If an employer does not provide information within seven days, the claimant’s application for benefits shall be processed using the information available in the commission’s records. If the employer or administrator later provides additional information, the commission may reprocess the claim, taking into account the additional information.

J. Modifications to approved leave.

1. Opportunity to modify an approved claim, generally. A claimant may apply to the commission to modify an approved claim for leave under the Act, such as to extend an approved claim or change the frequency of intermittent leave approved for benefits.

2. Notice to the commission of changes. A covered individual whose claim for benefits has been approved or their designated representative must notify the commission of events that could change the amount, duration, or frequency of benefits already approved by the commission.

a. A covered individual or their designated representative must notify the commission within 14 days after an event that could affect their claim occurs or within 14 days of learning of a foreseeable future event that could change their claim, whichever occurs earlier.

b. Changes that a claimant must notify the commission of include:

(1) A change in the covered individual’s plans for bonding leave, such as the placement of the child in another home;

(2) A change in the covered individual’s own serious health condition or need to care for a family member with a serious health condition, such as the death of the family member or any increase or decrease in the care the covered individual must provide;

(3) An addition or loss of a job;

(4) A change in the covered individual’s need for exigency leave;

(5) A change in the covered individual’s need for leave to seek safety services;

(6) A change in the covered individual’s residence, employment, or other circumstances that will mean that the covered individual is no longer localized to Virginia, pursuant to 16VAC5-90-40 D; or

(7) For a covered individual receiving benefits for intermittent leave or a reduced leave schedule, any change in the covered individual’s work schedule.

3. Ending a leave early. A covered individual who intends to return to work before the end of their previously approved claim for benefits, or their designated representative, must notify the commission no later than two business days prior to ending their leave. If the events that lead the covered individual to return to work early were not foreseeable more than two business days in advance, the covered individual must notify the commission as soon as practicable.

4. Extending the duration of an approved claim. A covered individual or their designated representative may apply to the commission for an extension of their claim. A covered individual seeking to extend the duration of their claim must apply through a form approved by the commission.

a. When a covered individual’s need to extend their leave is foreseeable, the covered individual must apply for an extension to the commission within 14 days of an event that could affect their claim or within 14 days of learning of a foreseeable future event that could change their claim, whichever occurs earlier.

b. When the need to extend leave is not foreseeable, a covered individual must apply for an extension to the commission as soon as practicable.

c. An application to extend a family and medical leave claim must include:

(1) A complete “Family and Medical Leave Extension Form,” including the reason for the extension and the requested duration of the extended leave, and all other information required by the commissioner to support the request for extension from the claimant, a health care provider, or a certifying party, where applicable;

(2) For leave related to a serious health condition, a complete “Family and Medical Leave Extension – Health Care Provider Certification Form” completed and signed by the health care provider of the person with a serious health condition and containing appropriate medical facts about the reason that the claimant needs a longer leave than previously anticipated; and

(3) Any other information that the commission deems necessary for administration of requests for an extension of family and medical leave benefits.

d. If a covered individual or their designated representative applies for an extension after the deadlines established in this subdivision, the commission may consider their request for an extension upon a showing of good cause, as defined in 16VAC5-90-20 F 4.

5. Notice to employers. A covered individual who applies for a modification to an approved claim shall also provide notice to their employer as described in 16VAC5-90-30.

6. Requests for information. The commission may require the covered individual to submit additional information in support of any request to modify the amount, duration, or frequency of benefits for their claim. The commission may close a claim if a claimant fails to provide the required information by the deadline set by the commission in its request.

7. Death of a covered individual. When a covered individual dies while receiving benefits, the covered individual’s estate or representative is responsible for notifying the commission of the death within 14 days. The commission may request that the covered individual’s estate or representative provide the commission with a death certificate or other documentation establishing death.

8. Commission’s notice to employee and employer. If information reported to the commission results in a change to the duration or frequency of leave for which a covered individual may receive benefits, the commission will notify the employer and the covered individual of the change.

K. Designation of representative.

1. Designation, generally. A claimant or their legal representative may designate a representative to act on the claimant or covered individual’s behalf with regards to seeking family and medical leave benefits from the commission.

a. A claimant may designate a representative with authority to act on the claimant or covered individual’s behalf. A claimant must designate their representative through a form provided by the commission.

b. If the claimant is unable to file a claim or authorize a designated representative due to the claimant’s medical incapacitation: (i) the commission may recognize a representative designated through their legal status as a parent, guardian, conservator, or power of attorney; or (ii) a claimant’s family member may serve as a designated representative without prior authorization from the claimant.

c. An entry of appearance by an attorney who is licensed and in good standing with the Virginia State Bar shall be sufficient to establish the attorney’s status as a designated representative.

2. Requirements. For purposes of the Act, a designated representative must be at least 18 years of age.

3. Safety services. For safety leave applications, the alleged perpetrator of domestic violence, stalking, sexual assault, or pervasive harassment shall not be the claimant’s designated representative.

4. Revocation. A claimant may revoke an individual’s designated representative status at any time.

L. Inadvertent benefits overpayments and underpayments not due to fraud.

1. Inadvertent overpayments, generally. Overpayment occurs when a claimant receives a larger benefit than they were entitled to due to error, but not due to fraud. For example, an overpayment may occur because of the death of a covered individual, the commission’s administrative error, the claimant’s good-faith error, or an employer’s mistake in reporting wages that results in a recalculation of benefits.

a. This section does not apply to any payments of family or medical leave benefits due to a willful or reckless misrepresentation.

2. Identification. The commission will continuously monitor and may identify overpayments through any lawful means, including through commission audits, investigations, or complaints. Upon identification of an overpayment, the commission will immediately notify the claimant of the overpayment, advise on options to dispute the overpayment determination, and take any available actions to avoid additional overpayments on the claim.

3. Repayment of overpaid benefits. When the commission determines that an overpayment not due to fraud has occurred, the commission will notify the claimant of the overpayment and will seek repayment of all overpaid benefits within 30 days of the date the commission provides notice.

a. A covered individual may enter into a repayment plan or apply for alternative dispensation, subject to the approval of the commission.

b. In the event that repayment, establishment of a repayment plan, or alternative dispensation has not occurred within the timeframe established by the commission, the commission will determine appropriate remedies. Appropriate remedies may include:

(1) Assessment of penalties;

(2) Accrual of interest;

(3) Offset of future benefits, not to exceed 20 percent of the amount of the payment from which the offset was made; and

(4) Other collection efforts the commission deems appropriate.

c. The commission may consider information provided by the claimant, information provided by other parties, and other information available to the commission in making its determination under this rule.

d. The claimant may be held liable for repayment of benefits they were not entitled to, even though all relevant information was provided before a decision was issued, when the claimant should reasonably have known the payment was improper.

e. In deciding whether a claimant is liable for repayment of benefits, the commission may also consider factors which may affect the claimant's ability to report all relevant information to the department.

4. Discovery of fraud. If, upon further review, the commission determines that an overpayment was not due to a good faith error and was due to fraud, the claimant will be disqualified from family and medical leave benefits as provided by 16VAC5-90-60.

5. Underpayments, generally. Underpayment occurs when a claimant receives less in benefits than they were entitled to due to an error. For example, an underpayment may occur because of a claimant’s good-faith error to report leave taken or because of an employer’s mistake in reporting wages that results in a recalculation of benefits.

6. Review of underpaid benefits. The commission may review a potential underpayment of benefits to determine whether an underpayment occurred and the cause of the underpayment. If the commission determines that an underpayment has occurred, it shall remit to the claimant the amount that it determines was underpaid.

a. If family and medical leave benefits are underpaid because a claimant erroneously reported time worked or inadvertently failed to report leave taken, a claimant may notify the commission of such underpayment within 12 months of the date of such underpayment. A claimant’s notification of an underpayment shall include proof of the error and the amount to which the claimant is entitled.

b. A claimant who fails to notify the commission within 12 months shall waive the right to recover such underpayment.

c. Family and medical leave benefits that are reduced or denied for a reason other than erroneous reporting of wages or time worked shall not be considered underpayments, and claimants shall instead utilize the established Appeals process for reconsideration requests.

1. Timing of leave notice. Where practicable, an employee shall provide an employer with at least 30 days’ advance notice of family and medical leave that the employee will take for a foreseeable reason, such as an expected birth or planned medical treatment for a serious health condition.

a. When it is not practicable for an employee to provide 30 days’ advance notice, such as because the need for leave was unforeseeable, a lack of knowledge of approximately when leave will need to begin, or a change in circumstances, an employee must give notice as soon as practicable.

b. An employee need only give notice one time, regardless of whether family and medical leave benefits will be continuous or taken on an intermittent or reduced schedule basis. An employee shall notify an employer as soon as practicable if dates of scheduled leave change, are extended, or are determined after being initially unknown.

c. If an employee is unable to provide notice to their employer personally, written notice may be provided by another responsible party, such as the employee’s family member, co-worker, or designated representative.

d. If an employer’s policy requires notice to be given sooner than notice required under this section, the employer may not discipline or punish an employee based on that policy as long as the employee provides timely notice as set forth in this regulation.

e. The commission shall not deny a claimant benefits for failing to provide leave notice required by § 60.2-811 B of the Code of Virginia. A claimant’s failure to provide such notice to their employer does not change the commission’s obligation to pay benefits on an approved claim within two weeks of approval, as set forth in § 60.2-803 of the Code of Virginia.

2. As soon as practicable. For purposes of this section, "as soon as practicable" means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for leave less than 30 days in advance, it should generally be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.
This subdivision shall be construed consistently with 29 C.F.R. § 825.302(b) (2025) and precedent applying that subsection.

3. Form of leave notice. An employee must provide their employer with notice of their intent to take leave covered by the Act in writing or by electronic means, including but not limited to by email, by text message, by submitting a paper or electronic form, or through an employer’s scheduling platform.

a. An employee’s oral request for leave may satisfy the requirements of this section if the request is memorialized in a written document that is provided to the employer within 14 days of the request being made.

b. An employer may require an employee’s notice of intent to comply with the employer’s usual and customary policy for taking leave, absent unusual circumstances. However, an employer may not require employees to comply with requirements that are contrary to the rights, benefits, or protections afforded to a covered individual under the Act and this chapter.

4. Contents of leave notice. An employee’s notice of leave shall be effective if the notice provides sufficient information to make a reasonable employer aware that the employee needs family and medical leave.

a. When an employee seeks leave, the employee is not required to expressly assert rights under the Act, mention the Act, or use any specialized terms like “continuous leave” or “intermittent leave” for notice to be effective. For example, an employee would satisfy the requirements of § 60.2-811 of the Code of Virginia by notifying their employer that they were “pregnant” and would need “time off when the baby is born.”

b. Upon an employer’s request, an employee shall provide their employer the anticipated start time, anticipated duration, and the anticipated frequency of leave where applicable.

c. An employer may not ask for an employee’s medical diagnosis, medical history, specific medical condition, or similar personal health details, and an employee is not required to provide that information to their employer. Pursuant to 16VAC5-90-20 I, an employer will receive notification of the commission’s determination on the employee’s claim directly from the commission. The employer may request additional information from the commission, as provided in 16VAC5-90-20 I.

5. Notice of modifications to approved leave. A covered individual who applies to the commission to change the duration or frequency of their claim, as described in 16VAC5-90-20 J, must take reasonable steps to provide notice to their employer.

a. For foreseeable changes to leave, a covered individual must notify their employer within 14 days after an event that could affect their claim occurs or within 14 days of learning of a foreseeable future event that could change their claim, whichever occurs earlier.

b. For unforeseeable changes to leave, an employee must notify their employer as soon as is practicable.

c. An employer may require an employee to follow the employer’s usual and customary policy for changing leave requests, unless those policies are contrary to the rights, benefits, or protections afforded to the employee under the Act and this chapter.

d. The commission will notify a covered individual’s employer that it has received a request to increase the duration or frequency of a claim within five business days of receiving the claim. When the commission makes a determination about a request for a covered individual’s request for a modification, the commission will notify the covered individual’s employer of the determination within five business days.

6. Waiver of leave notice. An employer may waive employees’ leave notice requirements under the Act, this chapter, or the employer’s own internal rules on leave notice requirements so long as they are less restrictive than the requirements provided in this chapter.

7. Employee failure to provide proper leave notice. If an employee fails to provide proper leave notice required by the Act to their employer, the employer may discipline the employee in a manner that is consistent with the employer’s usual written policy, practice, and procedure for disciplining employees who do not follow the employer’s usual and customary policy or practice for providing notice prior to taking leave, unless that policy or practice is contrary to the rights, benefits or protections afforded to an employee under the Act and this chapter.

a. An employer may not subject an employee who fails to provide notice required by this Act to greater discipline than the employer would typically apply to an employee who failed to provide notice under the employer’s usual and customary policy or practice for providing notice prior to taking leave. Applying heightened discipline to employees who do not provide proper notice required by the Act and this chapter shall constitute retaliation and interference under §§ 60.2-808 and 60.2-809 of the Code of Virginia.

b. If an employer fails to post and deliver notice required by 16VAC 5-90-40 E, the employer may not penalize or discipline an employee for failing to provide notice in accordance with 16VAC5-90-30.

A. Employer registration and reporting.

1. Registration. Employers, including employers who may seek to meet their obligations under the Act through an approved private plan, must register with the Virginia Employment commission by January 1, 2028, or within 30 days of employing their first employee localized in Virginia, whichever occurs later. Employers will not automatically be registered with the commission and must register. as required by this chapter.

a. Employers must register through an online method approved by the commission.

b. Any entity that registers one or more accounts with the commission on behalf of one or more employers is prohibited from registering fraudulent or unnecessary accounts, including accounts of fictitious employers, accounts with fictious employees, or accounts with no employees whose work is localized to Virginia pursuant to16VAC5-90-40 D.

c. Within seven days of a request by the commission, any entity that registers with the commission must submit to the commission documentation demonstrating (1) that the registrant is a legitimate employer, and not a fraudulent or fictitious entity; and (2) that the employer is registering the account with the commission in accordance with the Act.

2. Contact information. Employers, individuals electing coverage, and claimants must provide accurate current contact information to the commission and must make timely updates of such contact information to reflect any changes.

3. Required employer quarterly reports. Each employer, including employers who may seek to meet their obligations under the Act through an approved private plan, shall report information to the commission for each calendar quarter of the total number of employees localized to Virginia and the total wages paid to each such employee in all pay periods ending within each such quarter. Each employer shall submit quarterly reports no later than the last day of the month following the end of the calendar quarter in a form and manner approved by the commission. Employers must comply with all applicable instructions of the commission pertaining to the preparation and submission of such reports. Such reports shall be submitted for each calendar quarter of every year. Quarterly reports shall include:

a. The employer’s name, mailing address, and the registration number assigned to the employer by the commission;

b. The quarterly period covered by the report;

c. For each employee localized to Virginia under 16VAC5-90-40 D, that employee’s: social security account number or other identifying number accepted by the commission; the employee’s full legal name, with surname last; the total wages paid for the quarter; the total hours paid for the quarter; job title; and work location.

d. For any employer that remits a reduced payroll contribution under § 60.2-806 of the Code of Virginia, the number of employees performing employment for the employer within any state of the United States, besides Virginia, any territory of the United States, or the District of Columbia for 20 or more calendar workweeks in the current or preceding calendar year. For purposes of determining whether an employer remits a reduced payroll contribution under § 60.2-806 of the Code of Virginia only, the meaning of "employee" is not limited to employees localized to Virginia; and

e. Any other information deemed necessary by the commissioner to administer the Act.

4. Required records. All employers shall maintain all records required by 16VAC5-32-10 for a four-year period, except that employers are not required to keep records required by 16VAC5-32-10 7 for purposes of the Act. Employers also must retain the following records for a four-year period:

a. Any documents describing employer policies, employee practices, and employee benefits regarding the taking of paid leave, including family and medical leave;

b. Copies of employees’ notice of leave provided to the employer pursuant to 16VAC5-90-30 and copies of all written notices given to employees as required by this regulation. Copies may be maintained in employee personnel files;

c. Dates that an employee takes family and medical leave;

d. If family and medical leave is taken by an employee in increments of less than one full day, the hours of leave taken;

e. Records sufficient to show that employers maintained health care benefits for employees taking family and medical leave pursuant to § 60.2-808 of the Code of Virginia, including any premium payments made for benefits during family and medical leave;

f. Records regarding designation of leave as family and medical leave, including any written statement from an employer or employee of the reasons for the designation and records of any dispute between the employer and an employee related to the designation; and

g. Records of coordination between an employer and an employee regarding intermittent and reduced leave schedules, if in writing.

5. Requests for additional information. In addition to filing required quarterly reports, employers shall also provide any additional wage or employment information, including records maintained under this section, that the commission deems necessary for administration of the program upon receiving a request from the commission.

6. Change of ownership or address. Any employer that transfers or sells the whole or any part of the business, or that changes the name or address of the business, shall give notice of such fact in writing to the commission within 30 days of such action. The notice shall contain the employer’s name, business address, and registration number assigned to the employer by the commission, along with the name, business address, and account number of any new owner or part owner, if applicable.

7. APIPs. The requirements of this subsection apply equally to employers who seek to meet their obligations under the Act through an Approved Private Insurance Plan (APIPs).

8. Closure of business. An employer must notify the commission within 15 business days if it ceases business operations in Virginia or otherwise ceases to employ Virginia employees, in accordance with the provisions of 16VAC5-90-40 D regarding localization of employees. An employer with no Virginia employees will not be required to make contributions, submit wage reports, or otherwise participate in the program. If the employer later resumes business operations or again employs employees in Virginia, it must register again with the commission.

9. Bankruptcy. An employer shall immediately notify the commission of the filing of any voluntary or involuntary petition in bankruptcy or other proceeding under the Federal Bankruptcy Code, or the commencement of any receivership or similar proceeding, or of any assignment for benefit of creditors, or any order of court under the laws of Virginia with respect to the foregoing.

10. Officers and registered agents. Every employer that is a corporation shall file a list of its officers and registered agent with the commission. An employer claiming that any of the officers are not in the corporation’s employment must provide a complete statement of the reasons with said list.

11. Penalties. If an employer’s failure to register or report results in the employer’s failure to remit contributions by the date on which they are due and payable in accordance with the Act and this chapter, then interest will accrue on the unpaid balance at the rate of one and one-half percent per month, as prescribed by § 60.2-813 A of the Code of Virginia.

B. Payroll contributions: calculations and remittance.

1. Contribution due date. Payroll contributions due under § 60.2-806 of the Code of Virginia must be remitted quarterly on or before the last day of the month following the end of the calendar quarter for which the contributions have accrued. The contributions must be paid in a manner approved by the commission.

a. If the due date falls on a Saturday, Sunday, or legal holiday, contributions will be considered timely if made by the next business day.

b. An employer’s first contribution payment shall be due by the latter of: (i) July 31, 2028; or (ii) the last day of the month following the end of the calendar quarter in which the employer first began to employ employees localized in Virginia. The first payment of such an employer shall include contributions for all wages paid to each employee localized to Virginia from the first day of the calendar year, except that contributions paid in 2028 shall only include contributions for wages payable from April 1, 2028.

c. For employers that move between the Commonwealth Plan and a private plan approved by the commission, contribution due dates will be determined in accordance with 16VAC5-90-100 M.

d. Upon written request of any employer filed with the commission on or before the due date of any contributions payment, the commission for good cause may grant an extension of time for the payment of such contributions, provided that: (i) no extension of time shall exceed 30 days, (ii) no extension shall postpone payment beyond the last date for filing tax returns under the Federal Unemployment Tax Act, 26 U.S.C. §§ 3302 and 3306, and (iii) interest shall be payable from the original due date as if no extension had been granted. The commission will communicate any extension of time in writing.

2. Remittance of contributions. Employers shall remit quarterly payroll contributions to the commission pursuant to § 60.2-806 of the Code of Virginia. All employers are responsible for remitting all payroll contributions due each quarter, including any portion of payroll contributions withheld from employees’ wages.

a. Payment for each calendar quarter shall include contributions for wages payable in all pay periods (weekly, bi-weekly, semi-monthly, monthly) ending within such calendar quarter. Contributions are required for employees’ wages or an individual’s income from self-employment up to the limit established by § 60.2-806 of the Code of Virginia.

b. For purposes of calculating contributions owed, amounts will be rounded to the nearest whole dollar.

3. Employer size. To determine an employer’s size for purposes of § 60.2-806 D of the Code of Virginia, an employer shall count all individuals that it employed for 20 or more calendar workweeks in the current or preceding calendar year within any state or territory of the United States or the District of Columbia. Employees who are employed outside these areas are not counted for purposes of determining employer coverage. Independent contractors who are properly classified under § 60.2-212 C of the Code of Virginia shall not be counted as employees for purposes of the Act.

4. Approved private plans. An employer that has been approved by the commission to meet their obligations under the Act under a private plan is exempt from the requirements to remit contributions established in § 60.2-806 of the Code of Virginia and this section. An employer that has not been approved by the commission to meet their obligations under the Act under a private plan is responsible for remitting contributions to the commission.

5. Cessation of business. Contributions from an employer that has ceased business operations in Virginia or otherwise ceased to employ employees localized to Virginia are due and shall be paid within 15 days of the cessation.

6. Penalties. If the commission determines that an employer has violated this section, the employer shall be liable for interest and penalties as provided in § 60.2-813 of the Code of Virginia.

C. Employee wage deductions.

1. Start date. Employers shall begin deducting employees’ share of payroll contributions pursuant to § 60.2-806 of the Code of Virginia beginning on the first pay period with a payment date on or after April 1, 2028.

2. Regular deductions. Employers who deduct the employee share of payroll contributions from wages must make the deductions from employees’ regularly scheduled paychecks, except that an employee and employer may mutually agree to less frequent deductions as long as the agreement is voluntary and memorialized in writing. Contributions may not be made less frequently than quarterly, even if the employer and employee agree. Employers shall note any deductions for payroll contributions under the Act in employees’ pay statements.

3. Failure to make payroll deductions. If an employer fails to make the proper deduction from an employee’s pay, the employer is considered to have elected to pay the employee’s portion for each pay period the employer fails to make the deduction. The employer is liable to pay the portion of the employee share and may not recoup the employee share attributable to a past pay cycle on future pay cycles.

4. Minimum wage protection. Pursuant to § 60.2-806 F of the Code of Virginia, an employer may not make deductions for contributions required by this Act that would cause an employee’s wage, after such deduction, to fall below the applicable minimum wage. To the extent that contributions required by this Act would cause an employee’s wage to fall below the applicable minimum wage:

a. An employer shall not deduct any contribution amount from that employee’s wage.

b. The employer shall still be responsible for paying the employer’s share of the required contribution to the commission.

c. The employee shall be eligible for benefits on the same terms as any employee to which this subdivision does not apply.

D. Virginia localization of employees.

1. Virginia employees, generally. Employers are only responsible for remitting contributions under § 60.2-806 of the Code of Virginia for employees who are localized to Virginia and employers are only required to report information required by 16VAC5-90-40 A 4 for employees localized in Virginia, unless otherwise specified. An employee must be localized to Virginia to qualify for family and medical leave benefits, restoration rights pursuant to § 60.2-808 of the Code of Virginia, or other rights, benefits, or protections afforded to employees under the Act.

2. Localization rules. An employee is localized to Virginia, and their wages are subject to contributions, if:

a. All of the employee’s work is performed within Virginia;

b. The employee’s work is performed both within and outside of Virginia, but the work performed outside the state is incidental to the employee’s work within Virginia, including employment that is temporary or transitory in nature or employment that consists of isolated transactions; or

c. The employee is not localized in any state or the District of Columbia, but some of the employee’s work is performed in Virginia, and:

(1) The employee’s base of operations is in Virginia, or if the employee has no base of operations, then the place from which the employee’s work is directed or controlled is in Virginia; or

(2) The employee’s base of operations, or place from which some part of the employee’s work is directed or controlled by the employer is not in any state in which part of the work is performed, but the employee’s residence is in Virginia.

d. In determining whether an employee is localized to Virginia, the commission may be guided by Unemployment Insurance Program Letter No. 20-04 and its attachments, issued by the United States Department of Labor’s Employment & Training Administration on May 10, 2004, or other appropriate guidance approved by the commission.

3. Performance of work. Work is performed where the worker is physically located. For example, if an individual works from their Virginia home for a Maryland employer, the work is performed in Virginia.

4. Mistaken remittance of contributions to another state. An employer who has paid to another jurisdiction an amount as payroll contributions properly payable to Virginia will not be delinquent if the payroll contributions properly payable to Virginia are paid within thirty days of the date on which the commission notifies the employer that such contributions are payable to Virginia.

E. Employer notice to employees.

1. Individualized notice. Pursuant to § 60.2-811 of the Code of Virginia, employers must provide all employees an individual, written notice describing their rights under this Act: (i) upon hiring, no later than five business days after an employee begins work; and (ii) at least annually thereafter. This notice must be provided in a form that an employee could keep or save.

a. In addition to the requirements set forth in § 60.2-811 of the Code of Virginia, this notice must inform employees of their responsibility to provide notice of their need to take family and medical leave to their employer under 16VAC5-90-30.

b. An employer must also provide an employee with a copy of this notice upon the employee’s request.

c. An employer must also provide an employee with a copy of this notice upon transfer to Virginia, no later than five business days after an employee begins work in Virginia.

d. The commission will publish a sample notice which employers may use to satisfy their notice responsibilities under § 60.2-811 of the Code of Virginia and this subdivision in English, Spanish, and any language that is the first language spoken by at least five percent of the Commonwealth’s population.

2. Notice to employee seeking leave. Pursuant to § 60.2-811 of the Code of Virginia, when an employee requests family and medical leave, or when the employer learns that an employee intends to take leave for a reason that qualifies for benefits under the Act, the employer must provide that employee with written notice of their rights under the Act within five business days, absent extenuating circumstances.

a. An employer is only required to provide this notice once to an employee for all leave taken for the same qualifying event.

b. The commission will publish a sample notice which employers may use to satisfy their notice responsibilities under § 60.2-811 of the Code of Virginia and this subdivision.

3. Penalties. An employer’s failure to comply with these notice requirements may constitute interference under § 60.2-809 of the Code of Virginia.

F. Contribution underpayments.

1. Contribution underpayments, generally. An employer that underpays contributions required by the Act shall be liable to the commission for any underpayments of contributions and interest as set forth in § 60.2-813 of the Code of Virginia. Examples of circumstances giving rise to contribution underpayments include:

a. An employer that underreported employees, underreported employees’ wages, incorrectly identified employees localized in Virginia, or misclassified employees as independent contractors or other non-employees;

b. An employer that failed to register with the commission;

c. An employer that failed to remit contributions to the commission, or did so after the deadline established in 16VAC5-90-40 B 1;

d. An employer that remitted less than the required contribution rate;

e. An employer that deducted more than 50 percent of the total contribution rate from employees’ wages and thus paid less than the employer’s required 50 percent share of the total contribution amount; or

f. A mistake in billing caused by a technical error.

2. Identification. The commission may identify contribution underpayments through any lawful means, including through commission audits, investigations, or external complaints.

3. Notice of underpayments. The commission shall notify an employer of any determination of a contribution underpayment, and associated interest, penalties, or damages, by sending a determination letter to the employer. The determination letter shall include information about the employer’s appeal rights.

4. Additional penalties. If an employer fails to remit unpaid contributions or interest within 30 days of being notified of the underpayment by the commission, the commission may assess additional penalties authorized by § 60.2-813 of the Code of Virginia. An employer that enters into an approved payment plan with the commission within 30 days of being notified by the commission of the underpayment will not be liable for additional penalties, unless the employer subsequently defaults on the approved payment plan.

G. Sensitive information.

Confidential information. An employer that receives records and documents of an employee’s reasons for using family and medical leave under the Act must maintain the confidentiality of that information in accordance with all applicable federal, state, and local laws and regulations. An employer must store and maintain the confidentiality of such information in accordance with all applicable federal, state, and local laws and regulations.

A. Definitions.

"Adverse action" means any action (including an affirmative act, omission, or statement) that, regardless of intent, could impose consequences for protected activity or could dissuade a reasonable person from engaging in protected activity under the Act.

“Interference” means an action (including an affirmative act, omission, or statement) that, regardless of intent, would interfere with a reasonable person’s right or protected activity under the Act or this chapter.

“Knowing false report,” for purposes of this section, means a report made with: (i) actual knowledge of the falsity of the information; (ii) with deliberate ignorance of the truth or falsity of the information; or (iii) in reckless disregard of the truth or falsity of the information. Establishing that a person acted knowingly shall not require proof of specific intent to prevent a covered individual from receiving benefits.

“Protected activity” means taking any of the actions set forth in § 60.2-809 B of the Code of Virginia. Protected activity includes attempting to take, being about to take, or being perceived by an employer or other person as taking or being about to take any of the actions set forth in § 60.2-809 B of the Code of Virginia.

“Retaliatory personnel action” has the meaning provided by § 60.2-800 of the Code of Virginia.

B. Restoration to same or an equivalent position.

1. Restoration. For purposes of § 60.2-808 of the Code of Virginia, an employee returning from family and medical leave under the Act must be returned to the same position they held when the leave commenced. In the event the employee cannot be returned to the same position because that position has been filled or eliminated, the employee must be returned to an equivalent position.

2. Equivalent position. An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

a. Conditions to qualify. If an employee is no longer qualified for the position because of the employee's inability to attend a necessary course, renew a license, fly a minimum number of hours, etc., as a result of the leave, the employee shall be given a reasonable opportunity to fulfill those conditions upon return to work.

b. Equivalent pay. An employee is entitled to any unconditional pay increases which may have occurred during the leave period, such as cost-of-living increases. Pay increases conditioned upon seniority, length of service, or work performed must be granted in accordance with the employer's policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as leave under the Act.

(1) An employee is entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential. If an employee departed from a position averaging ten hours of overtime (and corresponding overtime pay) each week, an employee is ordinarily entitled to such a position on return from leave under the Act.

(2) Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary, made to employees consistent with the provisions of paragraph b. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as leave under the Act. For example, if an employee who used paid vacation leave for a protected purpose under the Act would receive the payment, then the employee who used paid vacation leave for an unprotected purpose under the Act also must receive the payment.

c. Equivalent benefits. Benefits include all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer through an employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).

(1) At the end of an employee's leave under the Act, benefits must be resumed in the same manner and at the same levels as provided when the leave began, and subject to any changes in benefit levels that may have taken place during the period of leave affecting the entire workforce, unless otherwise elected by the employee. Upon return from leave under the Act, an employee cannot be required to requalify for any benefits the employee enjoyed before leave began (including family or dependent coverages). For example, if an employee was covered by a life insurance policy before taking leave but is not covered or coverage lapses during the period of leave, the employee cannot be required to meet any qualifications, such as taking a physical examination, in order to requalify for life insurance upon return from leave. Accordingly, some employers may find it necessary to modify life insurance and other benefits programs in order to restore employees to equivalent benefits upon return from leave under the Act, make arrangements for continued payment of costs to maintain such benefits during leave, or pay these costs subject to recovery from the employee on return from leave.

(2) If, while on unpaid leave, an employee desires to continue life insurance, disability insurance, or other types of benefits for which he or she typically pays, the employer is required to follow established policies or practices for continuing such benefits for other instances of leave without pay. If the employer has no established policy, the employee and the employer are encouraged to agree upon arrangements before leave begins.

(3) Employees on leave under the Act are to be treated as if they continued to work for purposes of changes to benefit plans. They are entitled to changes in benefits plans, except those which may be dependent upon seniority or accrual during the leave period, immediately upon return from leave or to the same extent they would have qualified if no leave had been taken. For example, if the benefit plan is predicated on a pre-established number of hours worked each year and the employee does not have sufficient hours as a result of taking leave under the Act, the benefit is lost.

d. Equivalent terms and conditions of employment. An equivalent position must have substantially similar duties, conditions, responsibilities, privileges and status as the employee's original position.

(1) The employee must be reinstated to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed. If the employee's original worksite has been closed, the employee is entitled to the same rights as if the employee had not been on leave when the worksite closed. For example, if an employer transfers all employees from a closed worksite to a new worksite in a different city, the employee on leave is also entitled to transfer under the same conditions as if he or she had continued to be employed.

(2) The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.

(3) The employee must have substantially similar earning potential, including the same or an equivalent opportunity for bonuses, profit-sharing, equity, and other similar discretionary and non-discretionary payments.

(4) FMLA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, or position which better suits the employee's personal needs on return from leave, or to offer a promotion to a better position. However, an employee cannot be induced by the employer to accept a different position against the employee's wishes.

e. De minimis exception. The requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.

This subdivision shall be construed consistently with 29 C.F.R. § 825.215 (2025) and precedent applying that section.

3. Tenure requirement. Pursuant to § 60.2-808 of the Code of Virginia, a covered individual who has been employed with that covered individual’s current employer for at least 120 calendar days prior to the commencement of the covered individual’s family and medical leave has a right to be restored to the position the covered individual held when the leave commenced or to an equivalent position upon returning from family and medical leave taken under the Act.

a. The 120 days need not be consecutive. However, if an employee has a gap in employment for their employer for more than 365 days, then that employee’s job tenure for purposes of § 60.2-808 of the Code of Virginia and this section will reset to zero days.

b. A change in employee’s position, job classification, hours, or similar status does not reset or negate the number of days that the employee was employed prior to the change in status. For example, an employee’s tenure status would not change if they moved from a full-time to a part-time role; from a seasonal role to a year-round role; from a non-supervisory to a supervisory role; or vice versa.

c. Military leave protected by federal or state laws or regulations is considered “employment” for purposes of § 60.2-808 of the Code of Virginia and this section.

d. The replacement of an employer by a successor employer does not interrupt an employee’s accumulation of days employed.

e. A covered individual who does not meet the 120-day tenure requirement for purposes of the job protection rights established by § 60.2-808 of the Code of Virginia, but who qualifies as a covered individual under § 60.2-800 of the Code of Virginia, shall still be eligible to receive family and medical leave benefits from the commission, even though they do not qualify for rights under § 60.2-808.

4. Commencement of leave. For purposes of the job protection rights established in § 60.2-808 of the Code of Virginia, leave commences when an employee begins to take leave from work for a qualifying event.

a. Continuous leave commences on the first day of leave. As a result, if a covered individual has not been employed by their current employer for at least 120 days before the first day of leave, they are not entitled to the protections set forth in § 60.2-808 of the Code of Virginia, regardless of whether their 120th day of employment would occur during their continuous leave. If a covered individual who has been employed by their current employer for fewer than 120 days requests future leave that would begin on a date that is on or after their 120th day of employment, they are entitled to the protections set forth in § 60.2-808 of the Code of Virginia for that future leave.

b. Intermittent leave and reduced leave schedule commence upon each covered absence. That means that if a covered individual has not been employed by their current employer for at least 120 days before their first covered absence, but their 120th day of employment occurs before a subsequent covered absence, they are entitled the protections set forth in § 60.2-808 of the Code of Virginia with regards to covered absences from that employer occurring after their 120th day.

5. Vesting. With respect to pensions, retirement plans, stock options, restricted stock units, and any other benefits that accrue or vest over time, any period of family and medical leave covered by the Act shall not be treated as or counted towards a break in service for purposes of vesting and eligibility to participate. For a plan that requires an employee to be employed on a specific date in order to be credited for a year of service for vesting, contributions, or participation purposes, an employee on family and medical leave under the Act shall be deemed to have been employed on that date.

6. Accrued leave. Any accrued but unused employer-provided paid time off benefits, such as unused vacation leave or paid sick leave, shall be available to an employee who returns from family and medical leave. An employee who is on family and medical leave shall continue to accrue employer-provided paid leave benefits while on leave, unless an employer provides otherwise in a written and generally applicable leave policy. An employer’s policy may not provide that leave benefits accrue differently during family and medical leave than during other forms of paid leave, such as vacation.

7. Exceptions to restoration protections. An employer is not required to return an employee to their position or to an equivalent position when an employer can demonstrate that:

a. The covered individual was not employed with their current employer for at least 120 days prior to the commencement of the covered individual’s family and medical leave;

b. An employee’s family and medical leave extended beyond the maximum duration of benefits provided by the Act;

c. The employee: (i) took leave from seasonal employment; (ii) returned from family and medical leave after the employer’s cessation of seasonal operations (such as the cessation of agricultural employment of a seasonal nature or cessation of operations at a ski resort); and (iii) the employee would not otherwise have been employed at the time of reinstatement. However, an employer that customarily re-hires seasonal employees upon resuming operations for subsequent seasons shall treat the employee who took leave under the Act in the same manner as other employees who worked the same season;

d. The employee’s written contract for employment with the employer has ended pursuant to its terms;

e. An employee’s position was eliminated due to legitimate downsizing or reorganization, provided the employer had no continuing obligations to retain or transfer that employee under an employer policy, collective bargaining agreement, or otherwise. There shall be a rebuttable presumption that any downsizing or reorganization that only eliminates one position belonging to an employee who is on, recently returned from, or has notified their employer of their intent to take family and medical leave is illegitimate. Restoration to an equivalent position that was or will soon be eliminated due to a legitimate downsizing or reorganization shall not meet the requirements of this section unless the employee’s original position was or would soon be eliminated;

f. The employee could not perform the essential functions of their job or of an equivalent position following the period of leave. However, an employer must restore an employee who can fulfill the essential functions of their job or an equivalent position with a reasonable accommodation that the employee requests and is eligible for under the Americans with Disabilities Act (“ADA”), the Virginia Human Rights Act (“VHRA”), or other applicable federal or state law;

g. The commission or a private plan administrator has made a determination that the employee applied for or was approved for family and medical leave benefits based on a willful or reckless misrepresentation; or
h. An employee on leave provided written notice of resignation.

8. Notice of decision to deny restoration. An employer that denies reinstatement under § 60.2-808 of the Code of Virginia to an employee must notify the employee in writing within five days of the employer’s decision to deny reinstatement. The employer must serve written notice to the employee in a form that the employee can keep or save. The notice must include: (i) a statement that the employer intends to deny employment restoration when the leave has ended; (ii) the reasons behind the decision to deny restoration, the grounds for denying restoration as provided in this section, and a citation for the employer’s authority to deny restoration as provided this section; and (iii) an explanation that health benefits will be paid for the duration of the leave.

9. Health care benefits. As set forth in § 60.2-808 of the Code of Virginia, an employer shall maintain any health benefits to which a covered individual was entitled if the covered individual had not taken family and medical leave, including by continuing to pay the employer’s share of the cost of health benefits if applicable. Employees shall continue to pay their share of the cost of health benefits during their leave. An employer may collect such payment from an employee via: (i) lawful deductions from employer-provided paid leave used to supplement family and medical leave benefits under the Act; (ii) lawful deductions from wages paid upon the employee’s return to work; (iii) a repayment plan entered into by the employer and the employee; or (iv) any other legal means.

10. Appeals. An employer may not treat leave taken under the Act that is subject to appeal or judicial review as an absence not protected by the Act unless and until the leave is denied and the claimant exhausts any right to appeal or judicial review, subject to the exceptions set forth in 16VAC5-90-50 B 6. However, a pending appeal does not extend the duration of the leave available to the employee beyond the duration approved by the commission or a private plan administrator.

C. Additional clarifications related to retaliation and interference.

1. Retaliation. An employer that takes an adverse action against an individual because of that individual’s protected activity commits an unlawful retaliatory personnel action, as defined in § 60.2-800 of the Code of Virginia. Unlawful retaliation may include, but is not limited to:

a. Subjecting an employee to discipline, discharge, suspension, transfer, or reprisal because of their protected activity;

b. Assigning an employee to a lesser position in terms of job classification, job security, or another term or condition of employment because of their protected activity;

c. Subjecting an employee to intimidation, threats of retaliation, or harassment because of their protected activity;

d. Reducing the pay or hours of work of an employee or denying an employee additional hours of work because of their protected activity;

e. Subjecting an employee to an involuntary shift change that would deter a reasonable person from engaging in protected activity under the Act, such as involuntarily moving the employee to a less desirable shift or revoking a previously approved flexible schedule;

f. Failing to hire a job applicant because of their protected activity;

g. Initiating an eviction proceeding or evicting an employee from employer-provided housing because of their protected activity;

h. Denying a promotion to an employee because of their protected activity; or

i. Making any communications or taking any action pertaining to an individual’s immigration status because an individual engaged in protected activity, provided that the action or communications would deter a reasonable employee from engaging in protected activity or were taken to punish an employee for protected activity.

2. Interference. Pursuant to § 60.2-809 of the Code of Virginia, an employer or other person may not interfere with, restrain, or deny the exercise of any rights provided by the Act. Unlawful interference may include but is not limited to:

a. Refusing to authorize family and medical leave;

b. Discouraging an employee from using family and medical leave;

c. Failing to store and maintain the confidentiality of employee information related to requests for leave under the Act or this chapter in accordance with applicable federal and Commonwealth laws and regulations, including as provided by 16VAC5-90-40 G and 16VAC5-90-100 E 10;

d. Providing false or misleading information that has the effect of interfering with an employee’s ability to access such benefits or leave;

e. Requiring the production of information defined as confidential under federal or state laws or regulations, including information requests prohibited by 16VAC5-90-30 4;

f. Failing to cooperate with the commission in processing a request for family and medical leave benefits;

g. Failing to cooperate with a Commonwealth agency’s compliance activities that implicate an individual’s rights under the Act and this chapter;

h. Inducing or attempting to induce an individual to waive a right under the Act and this chapter;

i. Using absence control policies to dissuade the use of family and medical leave under the Act, such as counting family and medical leave as an absence that may lead to or result in discipline, discharge, or other adverse action;

j. Making any communications or taking any action pertaining to an individual’s immigration status that would deter a reasonable person from exercising their rights under the Act; or

k. Requiring an individual to perform work during a period of family and medical leave.

3. Additional clarifications related to retaliation and interference.

a. Although an employer is only required to restore an employee to an equivalent position if the employee meets the criteria set forth in § 60.2-808 of the Code of Virginia, an employer may not: (i) retaliate against any person for engaging in protected activity, regardless of that person’s job tenure; or (ii) interfere with any person’s exercise or attempt to exercise any right protected by the Act, regardless of that person’s job tenure.

b. An employer’s use of automated decision systems or algorithmic management systems to make or inform employment decisions, such as an employer’s use of an artificial intelligence tool that penalizes employees who take leave under the Act to identify workers for layoffs, shall not be a defense to alleged violations of §§ 60.2-808 and 60.2-809 of the Code of Virginia.

c. An employer’s good faith report of fraud shall not be an act of retaliation or interference. However, an employer that knowingly or recklessly makes a false report that an individual engaged in fraud would commit retaliation and interference.

d. Employees’ rights under the Act cannot be waived by contract. However, the settlement or release of claims under the Act by employees based on past employer conduct does not constitute retaliation or interference.

e. Nothing in this section shall prohibit an employee’s voluntary and uncoerced acceptance of a light duty assignment while recovering from a serious health condition, provided that acceptance is not a condition of employment.

4. Attendance policies. Disciplining an employee for cause does not constitute retaliation or interference under § 60.2-809 of the Code of Virginia, such as discipline for attendance issues unrelated to leave under the Act or for violating company policies that comply with the Act and other applicable federal and state law.

a. An employee who is approved for and takes leave on an intermittent or reduced leave schedule but fails to work during hours that the employee is scheduled to work in accordance with that leave, may be subject to employer discipline.

b. In the event that an employee’s utilization of intermittent leave or a reduced leave schedule is inconsistent with the frequency and duration of leave approved by the commission or a private plan administrator, it shall not be considered retaliation under the Act for an employer to request additional information related to the use of leave.

D. Referrals and investigations of potential violations of §§ 60.2-808 and 60.2-809 of the Code of Virginia.

1. Complaints and referrals. Any person who alleges a violation of their rights under §§ 60.2-808 and 60.2-809 of the Code of Virginia may file a complaint with the Commissioner of Labor and Industry. If the commission receives a complaint of an alleged violation of §§ 60.2-808 and 60.2-809 of the Code of Virginia or otherwise discovers a potential violation of those sections of the Act, the commission may refer the potential violation to the Commissioner of Labor and Industry for investigation.

2. Investigations. The Commissioner of Labor and Industry may investigate any alleged violations of §§ 60.2-808 and 60.2-809 of the Code of Virginia upon receipt of a complaint from, or with the consent of an employee or interested third party, or at the Commissioner of Labor and Industry’s discretion.

3. Exhaustion. An employee is not required to pursue administrative remedies through the Commissioner of Labor and Industry prior to initiating a civil action under §§ 60.2-808 and 60.2-809 of the Code of Virginia.

4. Remedies. In no civil action brought under §§ 60.2-808 and 60.2-809 of the Code of Virginia shall an employee be awarded an amount already recovered on their behalf by the Commissioner of Labor and Industry or the Attorney General for the same violation. In no administrative action or court action brought under this section shall the Commissioner of Labor and Industry or Attorney General be awarded an amount already recovered by an employee in a court action for the same violation.

5. Good faith. No liquidated damages shall be assessed against an employer who has violated §§ 60.2-808 and 60.2-809 but proves that it acted in good faith and had reasonable grounds for believing that the act or omission was not a violation of §§ 60.2-808 and 60.2-809 of the Code of Virginia. This section shall be construed consistently with 29 U.S.C. § 260 and precedent applying that section.

1. Willful misrepresentation. If the Commission determines that a claimant has willfully made or caused to be made a false statement or misrepresentation regarding a material fact with the intent to obtain family and medical leave benefits, the claimant will be disqualified from family and medical leave benefits for five years after the effective date of the disqualification.

2. Reckless misrepresentation. If the Commission determines that a claimant has (i) recklessly made or caused to be made a false statement or misrepresentation regarding a material fact with the intent to obtain family and medical leave benefits or (ii) has willfully failed to report a material fact with the intent to obtain family and medical leave benefits, the claimant will be disqualified from family and medical leave benefits for three years after the effective date of the disqualification. If a claimant is disqualified from the program for reckless misrepresentation and it is later determined in criminal proceedings that the claimant acted willfully, the Commission shall revise their disqualification period to five years.

3. Investigations. The Commission shall accept complaints or reports alleging that a claimant, other individual, or entity willfully or recklessly made a false statement or misrepresentation to obtain family and medical leave benefits. The Commission may also conduct audits and reviews of submitted claims. The Commission may also refer potential criminal activity to law enforcement and cooperate with law enforcement to prosecute criminal activity, such as conduct that defrauds the Trust Fund.

4. Fictitious employers or health care providers. The Commission will monitor indicators of potential fictitious employers or health care providers, including by monitoring suspicious claim patterns using employer-identity verification tools.

5. Willful and reckless misrepresentations by health care providers or their designees. The Commission will monitor indicators of potential willful or reckless misrepresentations by health care providers, such as unusually high patient or certification volume.

a. If the Commission has reason to believe that a health care provider or their designee has willfully or recklessly made a false statement or misrepresentation in connection with an application for family and medical leave benefits, the Commission may report the provider or their designee to a licensing agency or another entity for investigation or discipline.

b. The Commission may decline to accept certifications from a health care provider that the Commission has reason to believe has willfully or recklessly made false statements or misrepresentations in connection with an application for family and medical leave benefits.

6. Notice of disqualification. The Commission will notify a claimant of any disqualification of benefits by issuing a written determination to the claimant. Along with the determination, the Commission shall notify the claimant of their right to appeal the disqualification in accordance with 16VAC5-90-110.

7. Effective date of disqualification. The effective date of disqualification is the date that the Commission provides notice of the disqualification determination to the claimant.

8. Collections. Any individual or entity who receives family and medical leave benefits because of a willful or reckless misrepresentation shall be liable to the Commission for those payments. The Commission may collect those payments by the methods allowed under state and federal law.

9. Contributions. An individual who is disqualified from family and medical leave benefits shall not be exempt from payroll contributions. The individual’s employer remains obligated to remit contributions for the individual and for the employer in accordance with the Act and this Chapter.

10. Identity theft. The Commission will monitor indicators of fraud involving identity theft. If the Commission determines that a fraudulent claim was made on behalf of an individual for which that individual was not responsible, such as because of identity theft by a third party, any weeks fraudulently used by the wrongful claimant will not be charged against the individual’s maximum leave benefits. The claimant who willfully or recklessly made a false statement or misrepresentation will be disqualified from benefits, but the non-responsible individual will not.

A. General provisions and interaction with FMLA.

1. FMLA, generally. As set forth in § 60.2-810 of the Code of Virginia, paid family and medical leave taken under this Act that also qualifies as leave under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. sec. 2601 et seq., shall run concurrently with leave taken under the FMLA.

2. Concurrency. If paid family and medical leave taken under this Act does not qualify as leave under the FMLA, then the extent to which family and medical leave runs concurrently with leave taken under the FMLA, if at all, is governed by the FMLA, its implementing regulations, and other applicable federal law.

B. PFML benefits and workers’ compensation benefits.

1. Workers’ compensation, generally. For any week in which a covered individual is receiving family and medical leave benefits for their own serious health condition, a covered individual’s Weekly Benefit Amount shall be reduced by the amount of temporary total disability benefits or temporary partial disability benefits that the covered individual receives under §§ 65.2-500 through 65.2-502 of the Code of Virginia for the same week for the same job.

2. Exceptions. Except as provided by 16VAC5-90-70 B 1, a covered individual’s family and medical leave benefits shall not be reduced by the amount of benefits that the covered individual receives under the Virginia Workers’ Compensation Act, including any compensation for permanent partial and permanent total loss and disfigurement that the covered individual receives under § 65.2-503 of the Code of Virginia or any death benefits that the covered individual receives under §§ 65.2-511 through 65.2-514 of the Code of Virginia.

3. Disclosure of workplace injuries. Any person who is applying for family and medical leave benefits for their own serious health condition must disclose whether their serious health condition was caused by or otherwise related to a workplace injury.

4. Disclosure of other benefits. A covered individual who is receiving family and medical leave benefits for their own serious health condition under the Act must notify the commission if they receive any temporary total disability benefits or temporary partial disability benefits under the Workers’ Compensation Act in a form approved by the commissioner. The covered individual may be required to complete a release for records relating to the workers’ compensation injury.

5. Coordination of benefits. The commission may recover an overpayment of paid family and medical leave insurance benefits due to an individual’s receipt of temporary total disability or temporary partial disability benefits under the Workers’ Compensation Act during a period of family and medical leave for their own serious health condition.

6. Disqualification. An individual’s failure to disclose a workplace injury or illness related to an application for family and medical leave benefits based on their own serious health condition may constitute grounds for disqualification of benefits pursuant to § 60.2-814 of the Code of Virginia. An individual’s failure to disclose receipt of temporary total disability benefits or temporary partial disability benefits under the Workers’ Compensation Act for a workplace injury may also constitute grounds for disqualification of benefits pursuant to § 60.2-814 of the Code of Virginia.

C. PFML benefits and employer-provided paid time off.

1. More generous policies encouraged. Nothing in this Act shall be construed to prevent or discourage employers from electing to provide more generous benefits to employees, including by: voluntarily providing employees additional weeks of leave paid by the employer or additional weeks of unpaid leave; paying wages in excess of the family and medical leave benefits provided under this Act, providing extra compensation, such as paying wages in excess of the family and medical leave benefits provided under this Act to replace 100% of an employee’s wages while on leave; or paying an employee’s share of payroll contributions owed under the Act.

2. Substitution of employer-provided paid leave. An employer and an employee may mutually agree that the employee may use paid sick leave, employer-provided vacation, or other employer-provided paid leave to supplement family and medical leave benefits provided under the Act.

a. If employer-provided paid leave is used to supplement family and medical leave benefits under the Act, the employer may: (1) convert the dollar amount of the supplement into the corresponding number of employer-provided paid leave hours; and (2) subtract those hours from the employee’s balance of accrued and unused employer-provided leave.

b. The use of employer-provided paid leave to supplement family and medical leave benefits requires mutual agreement between the employer and the employee. Neither an employee nor the employer may unilaterally require the use of employer-provided paid leave to supplement family and medical leave benefits.

D. PFML benefits and unemployment compensation benefits.

An individual receiving unemployment compensation benefits from the commission shall not be eligible for family and medical leave benefits under the Act.

A. Definitions.

"Taxable income from self-employment" means a self-employed individual’s net earnings from self-employment, as defined in 26 U.S.C. § 1402, plus the amount of wages, if any, paid to the self-employed individual from the self-employed individual’s business entity.

B. Requirements for electing coverage.

1. Election, generally. A self-employed individual may elect coverage by registering with the Virginia Employment Commission and filing a written notice of election with the commission. A self-employed individual must submit a notice to elect coverage in the form and method approved by the commission.

2. Eligibility. A self-employed individual is eligible for coverage if, in at least one of the two taxable years preceding the current calendar year, the self-employed individual derived an amount of taxable income from self-employment equal to or greater than the minimum amount that an employee must earn to qualify as a covered individual under § 60.2-800 of the Code of Virginia.

a. The commission will apply a rebuttable presumption that an individual is an employee of, rather than self-employed by, any business of which they own less than 25%.

b. An individual can rebut the presumption that they are an employee, rather than a self-employed individual, if: (i) the individual provides the commission sufficient documentation to demonstrate that they are a self-employed individual as defined in 16VAC5-90-10 A; and (ii) the commission determines that they are a self-employed individual as defined in 16VAC5-90-10 A.

3. Filing requirements. A notice to elect coverage will not be considered properly filed until the commission verifies that the notice is complete and includes:

a. Information about the self-employed individual applying for elective coverage, including their address, contact information, and the date that the individual became self-employed;

b. Information sufficient for the commission to verify that the individual is authorized to work in the United States, including: (i) the individual’s date of birth; and (ii) either the individual’s Social Security Number or a number associated with an immigration document from a list of documents accepted by the commission;

c. Information about the individual’s business when applicable, including a Business Identification Number, business name, and business contact information;

d. Documentation verifying the individual’s identity, the individual’s taxable income from self-employment, and any other information that the commission deems necessary;

e. A copy of the individual’s most recent tax transcript, as well as copies of an IRS Form W-2 issued to the individual by the self-employed individual’s business for the same tax year reflected in the transcript if applicable;

f. A written agreement to pay contributions for not less than three years, unless the individual changes from self-employed to employee status as described in 16VAC5-90-80 D 2;

g. A written agreement to provide any additional information requested by the commission to verify eligibility for elective coverage, contributions, benefit amounts, or administer elective coverage;

h. A written acknowledgment of the conditions for termination of elective coverage as set forth in the Act; and

i. Any other information that the commission deems necessary for administration of elective coverage.

4. Effective date. A self-employed individual’s notice of election shall become effective on the date that a complete notice is filed, meaning that a self-employed individual may not withdraw from coverage pursuant to § 60.2-815 D of the Code of Virginia sooner than three years after the date they file a complete notice of election.

5. Review. The commission shall review a self-employed individual’s notice of election and determine whether the individual is eligible to participate in the program. The commission may request any additional information from the self-employed individual seeking to elect coverage that is necessary to verify the information contained in their notice of election.

6. Approval. The commission shall approve a self-employed individual’s elective coverage when the commission determines that the individual filed a complete notice of election and that the self-employed individual meets the eligibility criteria established by the Act and this chapter. Upon approval of a self-employed individual’s elective coverage:

a. The commission will pay family and medical leave benefits for leave taken after approval of a claim filed by the self-employed individual, subject to the requirements of § 60.2-802 C of the Code of Virginia.

b. The self-employed individual will be responsible for paying contributions on income from self-employment earned after the date that their elective coverage is approved.

C. Contributions, benefits, and supporting documentation.

1. Contributions, generally. A self-employed individual who elects coverage under § 60.2-815 of the Code of Virginia must pay both an employer and an employee’s share of the contributions required by § 60.2-806 of the Code of Virginia.

a. A self-employed individual’s annual contribution amount shall be determined by multiplying the contribution rate established under § 60.2-806 of the Code of Virginia by a self-employed individual’s total taxable income from tax filings for a prior tax year, subject to the limitation set forth in subdivisions (1), (2), and (3) of 16VAC5-90-80 C 1 a. A self-employed individual’s quarterly contribution amount shall be determined by dividing their annual contribution amount into four quarterly contribution payments.

(1) For self-employed individuals who elect coverage in the first quarter of the calendar year (January through March), total taxable income will be determined by a tax return from the tax year immediately prior to the last tax year.

(2) For self-employed individuals who elect coverage in quarters two through four of the calendar year (April through December), total taxable income will be determined by a tax return for the last tax year.

(3) If a self-employed individual only owes contributions for part of a quarter, the contribution amount shall be prorated based on the number of calendar days out of the quarter that the elective coverage is in effect.

b. A self-employed individual’s contribution payments shall be based on the individual’s total taxable income from self-employment, up to the same amount as the contribution and benefit base limit established annually by the Social Security Administration for purposes of the federal Old-Age, Survivors, and Disability Insurance Benefits program limits pursuant to 42 U.S.C. § 430.

2. Quarterly contributions due. A self-employed individual electing coverage must make quarterly contribution payments. For a self-employed individual electing coverage, quarterly contributions shall be due and payable on the same schedule as employers’ payroll contributions are due under 16VAC5-90-40 B 1. Quarterly contributions must be paid in a manner approved by the commission.

3. Reporting. A self-employed individual must report to the commission all information that the commission deems necessary to receive for purposes of administration of elective coverage. Self-employed individuals must report all required information in a manner approved by the commission.

a. On an annual basis, a self-employed individual electing coverage must submit their prior year’s tax transcript and W-2 forms to the commission. A self-employed individual must submit their tax records no later than December 1 of each year.

b. A self-employed individual who elects coverage, and who amends or receives an adjustment for a Virginia or federal tax return that they submitted to the commission, must submit their amended or adjusted taxable income from self-employment to the commission. The self-employed individual must provide the commission a copy of their amended or adjusted tax return within thirty days of that amended or adjusted tax return becoming final. The self-employed individual must provide a tax transcript or any other information requested by the commission on request. Upon receipt, the commission may adjust a self-employed individual’s quarterly contribution payments due, benefit amounts due, and previous benefit amounts paid.

c. The commission may establish any additional reporting requirements, including quarterly reporting or annual reporting requirements, that the commission deems necessary for effective administration of elective coverage.

4. Benefits. A self-employed individual who has been approved for coverage by the commission may apply for and receive benefits on the same terms as an employee applying for or receiving benefits under §§ 60.2-802 through 807 of the Code of Virginia and 16VAC5-90-20 and 16VAC5-90-90.

5. Program integrity. A self-employed individual who willfully or recklessly makes or causes to be made a false statement about a material fact to the commission with the intent to obtain family and medical leave benefits will be subject to the same penalties that would apply to an employee under the Act and 16VAC5-90-60.

6. Intermittent Leave and Reduced Leave Schedules. For leave taken on an intermittent or reduced leave schedule basis, the commission will calculate a self-employed claimant’s prorated weekly benefits and weekly usage using the methods set forth in 16VAC5-90-90 A 1, except that:

a. The commission will calculate a self-employed claimant’s hourly benefit rate using a rebuttable presumption that the claimant works 40 hours a week in a typical workweek;

b. A self-employed claimant may rebut the presumption that the claimant’s typical workweek is 40 hours a week if: (i) the claimant provides the commission sufficient documentation to overcome the presumption of hours, such as billing logs or contracts; and (ii) the commission approves the claimant’s use of a typical workweek.

7. Requests for information. The commission may require copies of additional tax documents, invoices, bank records, or any other documentation deemed necessary by the commission to verify or determine the self-employed person’s income or hours.

8. Contribution underpayments. A self-employed individual elects coverage, but who underpays contributions or fails to pay contributions in a timely manner, shall be liable to the commission for unpaid contributions, interest, and penalties provided in 16VAC5-90-40 F.

a. A self-employed individual who fails to pay complete and timely contributions may also be deemed delinquent and disqualified from benefits until such time as they pay all contributions owed, as well as interest and penalties where applicable.

b. The commission may identify contribution underpayments through any lawful means, including through commission audits, investigations, or external complaints.

c. The commission will provide self-employed individuals notice of any determination of a contribution underpayment, and will assess penalties, as described in 16VAC5-90-40 F.

D. Withdrawal and termination of coverage.

1. Election to withdraw coverage. A self-employed individual may only withdraw elective coverage by filing a written notice of withdrawal to the commission. A notice to withdraw coverage must be submitted using a form prescribed by the commission, online or in another method approved by the commission.

a. A self-employed individual may only withdraw coverage under the terms set forth in § 60.2-815 of the Code of Virginia.

b. The withdrawal shall take effect thirty days after the notice to withdraw is received by the commission, unless: (i) a later date is requested by the self-employed individual on the written notice; or (ii) the individual attempted to withdraw coverage less than three years after electing coverage.

2. Termination because of conversion from self-employed to employee status. Upon request from a formerly self-employed individual who has become an employee who is responsible for contributions under subsections D and E § 60.2-806 of the Code of Virginia, the commission may terminate the formerly self-employed individual’s elective coverage without a penalty.

a. The commission may terminate a formerly self-employed individual’s elective coverage because of their conversion to an employee at any point in time, notwithstanding 16VAC5-90-80 B 4.

b. Before terminating coverage, the commission may require a formerly self-employed individual to submit any information that the commission deems necessary to verify that the individual is no longer a self-employed individual for purposes of the Act and is employed by an employer that is making contributions if required § 60.2-806.

c. An individual whose elective coverage is terminated because of their conversion from self-employed to employee status shall remain eligible for benefits so long as the individual either: (i) paid contributions on taxable income from self-employment equal to or greater than the minimum amount that an employee must earn to qualify as a covered individual under § 60.2-800 of the Code of Virginia during the base period; or (ii) meets the monetary eligibility criteria set by § 60.2-612 of the Code of Virginia.

3. Early termination by commission upon closure of a business. Upon request, and notwithstanding 16VAC5-90-80 B 4, the commission may terminate coverage early and forgive penalties owed by a self-employed individual who elected coverage, who has not claimed benefits within the past year, and whose businesses subsequently closed within their first three years of coverage. A self-employed individual must submit an application for early termination and forgiveness in the form and manner required by the commission. The commission will not terminate coverage and forgive penalties unless the self-employed individual demonstrates that they do not have another business or source of self-employment income with which to pay contributions. Before terminating coverage, the commission may require a formerly self-employed individual to submit any information the commission deems necessary to review the application.

4. Termination by commission for delinquent contributions. The commission may terminate a self-employed individual’s elective coverage when the self-employed individual is delinquent on contributions in accordance with 16VAC5-90-80 C 8, when the self-employed individual fails to report complete and accurate information required by 16VAC5-90-80 C 3, or at the commission’s discretion. When the commission determines that a self-employed individual’s coverage shall be terminated under this subsection, the commission will notify the self-employed individual within 10 days of the determination.

a. The notice shall include: (i) the reason for the termination; (ii) instructions explaining what steps, if any, the individual may take to come into compliance and avoid termination of coverage; and (iii) the date that the termination will take effect absent action on behalf of the self-employed individual.

b. All outstanding contributions owed under § 60.2-815 of the Code of Virginia and 16VAC5-90-80 C 2 are due within thirty days after the individual receives notice that the commission is terminating their coverage.

c. A self-employed individual whose elective coverage is terminated by the commission may not reelect coverage as a self-employed individual for three years following the date of termination.

A. Intermittent leave benefits, generally.

1. Intermittent leave benefits. Under § 60.2-807 of the Code of Virginia, the commission may pay family and medical leave benefits to a covered individual for leave taken on an intermittent and reduced schedule basis. The commission shall calculate a covered individual’s total weekly benefit amount for intermittent leave and reduced leave schedules as provided by § 60.2-804 of the Code of Virginia. For leave taken on an intermittent or reduced schedule basis, weekly benefit amounts must be prorated on an hourly basis as follows:

a. The commission shall calculate a covered individual’s hourly benefit rate by dividing the covered individual’s total weekly benefit amount by the number of hours worked in the claimant’s typical workweek.

b. The commission shall calculate the covered individual’s benefit payment for intermittent leave and reduced leave schedules by multiplying the hourly benefit rate by the number of hours of family and medical leave taken during a benefit week.

c. For purposes of this section, "hours worked" means all hours the employee was or is scheduled to work, regardless of whether the employee actually worked those hours or used authorized leave for those hours.

2. Weekly usage. As provided by § 60.2-803 of the Code of Virginia, family and medical leave benefits are available for up to 12 weeks in a benefit year. A covered individual using intermittent leave or a reduced leave schedule shall use a prorated portion of a week of leave.

a. A covered individual’s weekly usage shall be determined by dividing the number of hours of family and medical leave taken in a benefit week by the total number of hours worked in the claimant’s typical workweek. For example, an employee whose typical workweek was 40 hours a week and who took 40 hours of continuous leave would use one full week of leave. If the same employee took 8 hours of intermittent leave in one week, their weekly usage would be 1/5 of a week.

b. In any benefit week, the total hours of family and medical leave taken by a covered individual may not exceed the number of hours in a covered individual’s typical workweek.

c. In any benefit year, the total hours of family and medical leave taken by a covered individual may not exceed 12 times the number of hours in a covered individual’s typical workweek.

3. Missing records. If the commission is unable to determine a covered individual’s typical workweek because of an employer’s failure to submit complete records required by 16VAC5-90-40 A 3, the commission may approximate that covered individual’s typical workweek based on the covered individual’s previous work schedules, information provided by a claimant, or other information available to the commission.

B. Applications for and use of intermittent or reduced leave schedules.

1. Use of intermittent leave, generally. A covered individual may take leave for a qualifying event pursuant to § 60.2-802 of the Code of Virginia on an intermittent or reduced leave schedule basis, subject to the benefit duration requirements of § 60.2-802 and 60.2-803 of the Code of Virginia. Intermittent leave can include leave that is planned, such as for routine medical appointments, or unplanned, such as for an incident of a serious health condition, related to the qualifying event.

2. Caring for a new child. A covered individual receiving paid family and medical leave benefits for bonding leave to care for a new child shall have the option to take and receive benefits for intermittent leave or reduced leave schedules in at least two increments during the first year after the birth, adoption, or placement of that child.

3. Additional certification requirements. In addition to the information required in16VAC5-90-20 G, the commission shall require additional certifications for claims for intermittent leave or a reduced leave schedule, including:

a. For a claimant seeking intermittent leave or a reduced leave schedule for their own serious health condition or the serious health condition of a family member, certification from a health care provider must include the health care provider’s reasonable estimate of the frequency and duration of leave and estimated treatment schedule, if applicable;

b. A complete “Intermittent Leave or Reduced Leave Schedule—Coordination Certification Form” demonstrating that the claimant seeking foreseeable leave on an intermittent or reduced leave schedule basis has coordinated with their employer as set forth in 16VAC5-90-30; and

c. Any additional certification information the commission deems necessary for administration of intermittent leave or reduced schedule under the Act in increments greater than four hours.

4. Notice of leave taken. A covered individual approved for intermittent leave or a reduced leave schedule is not required to file a separate claim for each separate block of leave taken associated with a single qualifying event. To receive benefits, the covered individual must report any leave taken to the commission on a weekly basis within 21 days from the end of the week in which the leave was taken. If the individual does not report any leave for a week by the deadline established by the commission, no benefits will be paid for that week, unless the claimant provides good cause for late reporting.

5. Leave increments. The minimum increment of intermittent leave or a reduced leave schedule for which the commission will pay family and medical leave benefits is one hour.

a. An employer may establish a reasonable written policy requiring covered individuals to take intermittent leave in specific increments of time, subject to the provisions of this subdivision:

(1) An employer’s written policy may not require employees to use leave under the Act in increments greater than four hours.

(2) Where an employer policy requires an employee to use leave in increments of more than one hour, the employer policy must create an exception for an urgent and unforeseeable need for leave, such as when an employee experiences a medical emergency or unexpectedly goes into labor while at work.

(3) An employer policy that requires increments of leave of more than one hour may not require covered individuals to take intermittent leave under this Act in larger increments of time than the employer requires for other forms of paid or unpaid leave.

b. The commission may require a covered individual to accumulate at least eight hours of total leave taken and reported to the commission before paying the covered individual their accumulated benefits for intermittent or reduced schedule leave. A covered individual need not take eight hours of leave consecutively to receive benefits.

6. Work schedules. A covered individual receiving intermittent leave or reduced leave schedule benefits must notify the commission of their work schedule when they apply for benefits and, where known, the covered individual’s anticipated leave schedule. The commission may contact the covered individual’s employer to verify the covered individual’s work and leave schedule.

7. Recertification. Once the commission has made a determination that a covered individual is eligible for benefits on a reduced leave schedule or intermittent leave basis, the covered individual must submit recertification documentation sufficient to recertify their need for leave at intervals as determined by the commission, but no more frequently than every six months.

a. Upon determination of recertification or denial, the commission will notify the covered individual and the employer from which the covered individual is taking leave within five business days. The commission’s notice will include any changes in the duration or frequency of the approved leave.

b. If a covered individual fails to recertify their claim, the commission shall stop paying family and medical leave benefits. The commission will notify the covered individual and their employer of the closure withing five business days of closing a claim.

8. Overtime. If a covered individual would normally be required to work overtime but is unable to do so because of a qualifying event that limits their ability to work overtime, the covered individual may apply for family and medical leave benefits on an intermittent or reduced leave schedule basis. For example, if a covered individual would typically be required to work 48 hours each week but, due to a serious health condition, the covered individual is unable to work more than 40 hours that week, the employee would use eight hours of leave under the Act or 1/6 of a week of leave. Voluntary overtime hours that a covered individual does not work due to a qualifying event do not qualify for benefits.

C. Coordination of intermittent or reduced leave schedules between employers and employees.

1. Notice. A covered individual is responsible for notifying their employer of any intermittent leave use in a manner consistent with16VAC5-90-30.

2. Coordination required. A covered individual and their employer have a mutual responsibility to coordinate with each other regarding intermittent leave and reduced leave schedules. Coordination includes:

a. An employee needing foreseeable intermittent leave or a foreseeable reduced leave schedule shall provide their employer with a requested leave schedule at least thirty days prior to the anticipated start date of leave;

b. When the need to take intermittent leave or reduced schedule leave is not foreseeable, an employee must provide their employer a requested leave schedule as soon as practicable;

c. Where practicable, an employee should meet with their employer prior to scheduling planned leave to discuss a leave schedule that best suits the needs of both the employer and the employee. If the claimant does not do so, the employer may initiate discussions with the employee; and

d. An employer may suggest an alternative leave schedule that better accommodates the business needs of the employer. If the employer and employee cannot establish a schedule that accommodates both parties, the employer cannot require an employee to change their leave schedule to accommodate the employer, except as provided in 16VAC5-90-90 C 3.

3. Undue disruption. A claimant seeking intermittent leave or a reduced leave schedule shall make a reasonable effort to schedule leave so as not to unduly disrupt the employer’s operations. An employer may require the employee to use the employer’s suggested alternative leave schedule or to otherwise adjust a requested schedule for intermittent leave or a reduced leave schedule only when all of the following are met:

a. The employee failed to make a reasonable effort to schedule family and medical leave so as not to unduly disrupt the employer’s operations;

b. The employee’s proposed schedule would require unusually significant difficulty or expense in relation to the resources and specific circumstances of the employer;

c. For leave related to a serious health condition or to care for a covered service member, the employer’s suggested alternative schedule is approved by the applicable medical providers and would not unduly disrupt an employee’s access to medical care. An employer may not contact the applicable medical provider directly to coordinate or seek approval of an employee’s intermittent or reduced leave schedule;

d. The employer made a good-faith effort to coordinate a mutually agreeable leave schedule, including that the employer’s alternative schedule would not cause significant difficulty or expense to the employee; and

e. The employer’s alternative schedule is not contrary to the rights, benefits, or protections afforded to a covered individual under the Act and this chapter.

D. Modifications to intermittent leave and reduced leave schedule claims.

1. Modifying an approved claim. A covered individual or their designated representative may apply to the commission to modify their intermittent leave or reduced leave schedule claim. For example, a covered individual that needs to increase the frequency with which they attend physical therapy from every other week to every week may apply to the commission for an increase in the frequency of leave for which the commission will pay benefits. A covered individual seeking a modification must apply through a form approved by the commission. The covered individual also must inform any employer from whom they are taking leave that they are seeking a modification of their claim.

a. When a covered individual’s need to modify their leave is foreseeable, the covered individual must apply for a modification to the commission and notify their employer no less than 14 calendar days prior to the effective date of the modification.

b. When the need to modify leave is not foreseeable, a covered individual must apply for a modification to the commission and notify their employer as soon as practicable.

c. An application to modify a family and medical leave claim must include:

(1) The reason for the modification;

(2) The requested duration of the modified leave;

(3) A complete “Family and Medical Leave Intermittent Leave and Reduced Leave Schedule Modification Form” and all other documentation required by the commission to support the request for modification from the claimant, a health care provider, or a certifying party, where applicable;

(4) For leave related to a serious health condition, a complete “Family and Medical Leave Modification – Health Care Provider Certification Form” completed and signed by the health care provider of the person with a serious health condition and containing appropriate medical facts about the reason that the claimant needs a modified leave; and

(5) Any other information that the commission deems necessary for administration of requests for a modification of intermittent leave and reduced leave schedule family and medical leave benefits.

d. If a covered individual or their designated representative applies for a modification after the deadlines established in this subdivision, the commission may consider their request for a modification upon a showing of good cause, as defined in 16VAC5-90-20 F 4.

2. Changing from intermittent to continuous leave. If a covered individual seeks to change an approved intermittent leave claim to a continuous leave claim for the same qualifying event, the covered individual must file a new claim.

3. Changing from continuous to intermittent leave. If a covered individual seeks to change an approved continuous leave claim to a claim for leave taken on an intermittent or reduced leave schedule basis for the same qualifying event, the covered individual must file a new claim.

4. Separation from employment. The commission will close an open claim for a covered individual who is receiving benefits on an intermittent leave or a reduced leave schedule basis and subsequently becomes unemployed or changes employers. The claim will terminate upon unemployment or the change in employment. The individual may file a new claim upon reemployment.

A. Definitions.

"Additional conditions or restrictions" as used in § 60.2-816 of the Code of Virginia means material conditions or restrictions and does not include incidental conditions or restrictions that do not interfere with, restrict, or lessen an employee’s rights under the Act.

“Approved private insurance plan (APIP)” means a commercial plan or self-insured plan provided by an employer to employees that is approved by the commission to satisfy employer responsibilities under the Act and that meets or exceeds the requirements of the Commonwealth Plan, whether it is administered by an employer, a third-party administrator, or an insurer.

“Approved private insurance plan administrator (APIP Administrator)” or “APIP administrator” means an entity tasked with the administration of an approved private insurance plan, and may include an employer, a third-party administrator, a labor union, or an insurer.

“Commercial plan” means paid family and medical leave insurance policy issued pursuant to § 38.2-107.3 of the Code of Virginia.

“Insurer” means any company engaged in the business of making contracts of insurance and in good standing with the State Corporation Commission in accordance with its statutes and regulations.

“Self-insured plan” means a plan in which an employer retains and accounts for all financial risk associated with the benefits and administration of the plan, whether it is administered by the employer or a third-party administrator.

“Self-insured APIP” means a self-insured plan that has been approved by the commission.

B. General provisions.

1. Format. In accordance with § 60.2-816 of the Code of Virginia, an employer may apply to the commission for approval to meet their obligations under the Act through a commercial plan or self-insured plan that provides paid family and medical leave benefits equal to or greater than the benefits provided by the Commonwealth Plan under the Act.

2. Job protection and retaliation. Employees who are covered by an APIP shall retain all applicable rights provided in §§ 60.2-808 and 60.2-809 of the Code of Virginia. An employer’s participation in an APIP does not negate employer responsibilities under §§ 60.2-808 and 60.2-809 of the Code of Virginia.

3. Application. These rules govern employees who are localized to Virginia pursuant to 16VAC5-90-40 D and govern employers and private plan administrators with regard to employees who are localized to Virginia pursuant to 16VAC5-90-40 D.

C. Initial application requirements and effective date of new private plans.

1. State Corporation Commission Approval Required. An insurer must file with and gain approval from the State Corporation Commission to offer the insurance policy that comprises a commercial plan before that commercial plan may be marketed or issued to employers in the Commonwealth of Virginia. Employers who purchase a commercial plan may then submit an application to the commission under this section.

2. Commission approval required. To obtain approval of a private plan to satisfy certain requirements of the Act, an employer must submit a complete private plan application to the commission, in a manner prescribed by the commission. Applications may be submitted at any time, and the commission will review complete private plan applications as they are received.

3. Application process. A complete private plan application for private plan approval must include:

a. The employer’s federal employer identification number (“EIN”);

b. The employer’s name;

c. The employer’s business address;

d. The employer’s mailing address;

e. A designated contact person, with that person’s name and contact information;

f. A copy of the employer’s plan of self-insurance or, if utilizing a commercial plan, a copy of that insurance policy form;

g. An attestation, completed by the employer, that the employer understands, and the private plan satisfies, the requirements set forth in the Act;

h. An attestation, completed by the employer, that the forms used by the employees or health care providers will be no more onerous than the forms used by employees or health care providers under the Commonwealth Plan;

i. A copy of the posted notice required by 16VAC5-90-100 L of these rules;

j. Other information as required on the application form; and

k. An administrative fee of:

(1) $1,000.00 for private plan applications received on or before December 31, 2028; and

(2) For private plan applications received on or after January 1, 2029, an amount determined by the commission pursuant to § 60.2-816 B and published on the commission’s website.

4. Application deadlines for plan in effect prior to February 2028. Employers seeking to meet their obligations under the Act with a commercial or self-insured plan that was in effect prior to January 31, 2028, must submit a complete application to the commission for approval of their existing plan no later than January 31, 2028, unless the commission requires applications by an earlier date. The commission cannot guarantee that it will approve APIP applications received after January 31, 2028, prior to the contribution start date on April 1, 2028.

5. Application filed after February 1, 2028: Employers that file an application for approval to meet their obligations under the Act using an APIP after February 1, 2028 must ensure that the new approved private insurance plan takes effect no earlier than sixty days after the date the commission receives a complete private plan application, so that the commission has sufficient time to review the application and the employer has sufficient time to provide notice to employees in accordance with 16VAC5-90-100 L of these rules.

6. Forms. The employer must submit to the commission any Forms to be used by employees or health care providers for purposes of applying for leave under the Act, modifying a claim, or appealing denial of a claim, at least thirty days prior to making them available to employees for usage.

7. Effective date. An employer is released from its contributions obligation under the Commonwealth Plan, on the first day of the calendar quarter following the effective date of the plan and approval by the commission of its APIP application. Employees remain eligible for benefits under the Commonwealth Plan until the effective date of the APIP.

D. Additional application requirements for self-insured APIPs.

1. Application requirements. Applicants for individual self-insurance must submit a complete “Paid Family and Medical Leave Self-Insurance Application Form” to the commission, accompanied by audited financial statements for the most recent three years of operation and any other information required by the commission. The commission shall only approve an application for self-insurance if the application demonstrates that the applicant meets the following minimum requirements:

a. At least three years of operation under the current corporate identity;

b. Positive tangible net worth;

c. Either: (i) no fewer than 50 full-time employees within Virginia; or (ii) no fewer than 250 employees in all U.S. jurisdictions. For purposes of this paragraph only, the term “employee” is not limited to employees localized to Virginia; and

d. A debt/equity ratio (total liabilities to net worth), based on audited figures, of less than 2.2, except that upon satisfactory and acceptable proof from the applicant that the debt/equity ratio for the applicant's industry is greater than 2.2, that median figure shall be used as the minimum standard.

2. Proof of solvency. Applicants seeking to establish a self-insured APIP must provide proof of assured funds. Such additional information shall include:

a. A claims run that covers open claims and all other claims that occurred within the last three policy years. For any policy year that predates December 1, 2028, an applicant may substitute comparable information about FMLA leave taken by their employees;

b. A surety bond issued by a surety company certified by the United States Treasury Department Bureau of the Fiscal Service and authorized to do business in the Commonwealth. The surety bond must be conditioned that the employer shall: (i) comply with all State laws and regulations governing it; and (ii) fulfill all obligations to pay employee claims. The surety bond must be issued in an amount equal to two years of future benefits and issued on a form prescribed by the commission; and

c. Any other information deemed necessary by the commission for administration of self-insured APIPs.

3. Financial review criteria. Applicants will be reviewed for their financial solvency, efficiency, profitability, stability, and future prospects. The commission’s review will be based on the materials submitted by the applicant and on third-party analyses and ratings of the applicant’s financial operations (including ratings of its credit). The commission’s analysis will consider the applicant’s current situation, any trends over the past three years, and applicable comparisons with other employers in the same or similar industries. Critical financial issues, indicators, and ratios include an applicant’s:

a. Net worth (tangible and intangible);

b. Operating results and working capital;

c. Nature and proportion of assets and liabilities;

d. Level and nature of debt, and overall relation of debt to equity;

e. Independent credit ratings;

f. Profitability in relation to sales, assets, and net worth; and

g. Any other critical indicators or issues that the commission determines necessary for administration of self-insured private plans.

4. Additional review criteria. The commission will also review an applicant’s proposed management of family and medical leave benefits claims. Elements that will be considered include:

a. Demonstration of clear corporate responsibility for managing family and medical leave benefits claims, procedures, policies, and reserves;

b. Reasonableness of proposals for maintaining excess coverage (proposed carrier, retention and limits for specific coverage, retention and limits for aggregate coverage);

c. Feasibility of proposed plan for managing claims (including specification of a third-party administrator or description of in-house claims management operations);

d. Existence of loss control programs, demonstrable effectiveness of such programs, and feasibility of any proposed improvements to such programs; and

e. Any other criteria the commission determines necessary for administration of self-insured private plans.

5. Requirements upon approval. If the commission approves the application, the applicant will be informed of the decision and required to provide the following:

a. Proof of excess coverage provided by a company approved by the State Corporation Commission to write such coverage in Virginia. The coverage must be in the amount stipulated in the application, subject to any modifications in limits or retention level that may have been specified as a condition of the commission's approval of the application. The coverage may not be provided by any captive or subsidiary of the self-insurer, or by any captive or subsidiary of the self-insurer's parent company.

b. A copy of the agreement between the applicant and the proposed third-party administrator (if not already provided as part of the application).

c. A copy of a parental guarantee if required by the commission. The guarantee must be provided on the currently approved version of the commission's parental guarantee form.

d. Documentation that any additional conditions of the commission's approval have been met.

E. Minimum requirements for approval of an APIP.

1. Unique application required. Each employer that intends to meet its obligations under the Act with an APIP must independently apply for APIP approval, demonstrate compliance with this Section, demonstrate that APIP offers coverage to all employees who would be covered by the Commonwealth Plan, and otherwise comply with the Act and this chapter. Employers must apply for and receive approval regardless of how many other employers use or intend to use the same private insurance plan to meet their obligations under the Act.

2. Equal or greater rights, protections, and benefits. A private insurance plan must confer equal or greater rights, protections and benefits provided to employees by the Commonwealth Plan, including the minimum requirements established by § 60.2-816 of the Code of Virginia and this Section.

3. Coverage. Pursuant to § 60.2-816 of the Code of Virginia, an APIP must cover all of an employer’s employees who are localized in Virginia in accordance with 16VAC5-90-40 D and who meet the monetary eligibility criteria established in §%u202F60.2-612 A 1 of the Code of Virginia.

4. Monetary eligibility for benefits. An APIP must provide benefits to all employees who meet the monetary eligibility criteria established by § 60.2-800 of the Code of Virginia, regardless of whether an employee meets those criteria through wages paid by the employer offering the APIP.

5. Benefit amounts. If the APIP Administrator does not have access to a claimant’s verified wages earned from other employers, the APIP Administrator may determine a claimant’s family and medical leave benefit amount in consultation with the commission. An APIP that does so must permit a claimant to request a reconsideration or appeal the benefit amount pursuant to 16VAC5-90-110 B to consider complete wage information for their other employment.

6. Employee contributions. Throughout the duration of an APIP, employers may withhold contributions from employees in an amount not to exceed the amount authorized by § 60.2-816, if such a deduction is pursuant to the terms of the APIP.

7. Equal access to benefits. An APIP may not impose additional conditions or restrictions on the use of leave beyond those expressly authorized by the Commonwealth Plan.

a. An APIP shall allow intermittent leave and reduced leave schedules to be taken in the same, or less restrictive, increments as provided under the Commonwealth Plan.

b. An APIP must ensure that any quantitative limits on benefits or non-quantitative limitations on applications, claims, and benefits are no more restrictive than those used by the Commonwealth Plan, including by establishing claims processing procedures that do not impose heightened barriers to receiving leave benefits in comparison to the claims processing procedures established by the Commonwealth Plan.

c. A claimant may appeal any APIP determination to an appeals process managed by the APIP or directly to the commission pursuant to 16VAC5-90-110. An APIP may not require a claimant to go through any internal review, reconsideration, or appeal before appealing an APIP determination to the commission.

8. Claim processing. An APIP Administrator must make initial determinations within 14 days of receiving a complete application. An APIP Administrator must decide reconsiderations within the same schedule established by 16VAC5-90-110 B.

9. Confidentiality. An APIP Administrator and an employer with an APIP, must store and maintain the confidentiality of information related to family and medical leave benefits in accordance with all applicable federal, state, and local laws and regulations related to the confidentiality of health information. Such information must be kept separate from all other employment records. Failure to do so may constitute a violation of § 60.2-809 of the Code of Virginia. An APIP Administrator may share information with an employer or other party that needs such information for purposes of coordinating benefits, including information on claimant’s weekly benefit amounts, that is necessary to coordinate family and medical leave benefits with any other compensation or benefits for which the claimant may be eligible.

a. An APIP Administrator shall not share information with any party besides the claimant’s employer, the commission, a relevant insurer, or another party that needs such information for purposes of coordinating benefits.

b. An APIP Administrator shall not share a claimant or a claimant’s family member’s specific medical diagnosis, medical history, specific medical condition, or similar personal health details with the claimant’s employer.

10. Access to records. All private plans must provide an employee, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the employee’s claim for benefits within seven days of the request.

11. Forms. An APIP may only require claimants or health care providers to fill out forms that are either provided by or approved by the commission for use in administering benefits under the Act. The commission will only approve APIP forms that are no more onerous to claimants or health care providers than the forms provided by the commission.

a. If an APIP Administrator makes changes to an approved form, the Administrator must submit the revised form to the commission for review and approval at least 30 days prior to use. The requirement that an APIP Administrator submit changes to approved forms for review does not apply to de minimis changes.

b. If the commission determines that an APIP Administrator used a form that was not approved for use by the commission, the commission may assess upon the APIP Administrator a fine in the amount specified in 16VAC5-90-100 N.

c. The commission shall not assess a fine against an APIP for using a form that was approved for use or published by the commission.

d. The commission’s approval of forms under this subdivision is separate and independent from approval of forms by the State Corporation Commission under Title 38.2 of the Code of Virginia and any regulations promulgated pursuant to that title.

12. Filing requirements. An APIP Administrator must determine whether an application for benefits is properly filed and must do so in a manner consistent with 16VAC5-90-20.

13. Cost-sharing. As provided in § 60.2-816 G of the Code of Virginia, the commission shall annually determine and assess each employer providing benefits through an APIP a share of the commission’s costs arising from the administration of private plans. Employers providing benefits through an APIP must pay their cost-sharing assessment to reimburse the commission for those costs.

a. The commission will establish cost-sharing assessments for the following calendar year by October 1 of each year.

b. The amount of each employer’s assessment will be determined based on the total cost to the commission of administering private plans and will be assessed proportionally based on the number of employees employed by the employer.

c. All employers providing benefits through an APIP must reimburse the commission by remitting their cost-sharing assessments to the commission no later than December 31. The commission may extend the deadline to pay the cost-sharing assessment for good cause.

d. No cost-sharing assessment will be due from an employer who did not have APIP coverage for the entire relevant fiscal year.

14. Language access. APIP Administrators must make reasonable efforts to provide meaningful access in English, Spanish, and any language that is the first language spoken by at least five percent of the employer's workforce.

15. Failure to pay benefits. Family and medical leave benefits must be paid by the APIP that awarded the benefits for the full duration of the employee’s approved benefits claim, pursuant to § 60.2-816.

a. If an APIP Administrator fails to pay benefits as required by § 60.2-816, those claims shall be paid by the commission. The employer is liable to the commission for any amounts of benefits that the commission pays because of an employer or APIP Administrator’s failure to pay required benefits. The commission may pursue all legal means to collect such amounts from the employer.

b. In the event an APIP fails to pay claims due to an insurance carrier’s insolvency, if the APIP is covered by an insurance guaranty association, the claims must be paid by the insurance guaranty association pursuant to its rules and procedures as a condition of APIP approval. If the APIP is not covered by a guaranty association, then the employer will become responsible for paying all claims approved by the APIP prior to the date of insolvency. The employer shall immediately notify the commission of the insolvency, the notice requirements under 16VAC5-90-100 L of these rules are waived, and the employer will be deemed covered under the Commonwealth Plan.

c. If a self-insured employer fails to pay approved family and medical leave benefits and commission approval of the APIP is withdrawn pursuant to 16VAC5-90-100 H of these rules, those claims shall be paid by the commission. The employer is liable to the commission for such amounts, and the commission may pursue all legal means to collect such amounts from the employer.

F. Additional minimum requirements for approval of an APIP in the form of self-insured APIPs.

1. General. Employers that intend to meet their obligations under the Act under a self-insured APIP must meet all of the minimum requirements established by 16VAC5-90-100 E, as well as the additional requirements set forth in this subsection.

2. Separate account. Employers who are approved to provide benefits under a self-insured APIP, and who withhold contributions from employees, must:

a. Establish and maintain a separate account for employees localized to Virginia: (i) into which all localized employee contributions are deposited and kept; and (ii) from which only benefits for localized employees and APIP administrative costs may be paid. Employers may not withdraw from the account except to pay benefits and APIP administrative costs. Upon any voluntary or involuntary termination of a self-insured APIP, the employer must remit the remaining balance of the account to the commission.

b. Hold and account for any funds collected from employee withholdings separately from all other employer funds; and

c. Make account records available to the commission upon request, including for audits, investigations, and other oversight.

3. Liability. The separate account of an employer who is approved to provide benefits under a self-insured APIP does not represent the extent of liability of the employer.

G. Review of private plan applications.

1. Opportunity to cure deficiencies. If the commission does not approve an employer’s application for approval to use a private insurance plan, the commission shall notify the employer in writing of any deficiencies that must be addressed in order for the private plan application to be approved.

a. Within thirty days of the date of the notification, the employer must demonstrate to the commission that any deficiencies were cured. If deficiencies are not cured within thirty days, the commission may deny the application.

b. The employer may request to meet with the commission to discuss the deficiencies and how they can be addressed.

2. Self-insurance template. For applications for self-insured private plans received by the commission , the employer must use a self-insurance private plan template approved by the commission and published on its website reflecting Section D of this subsection. If the commission makes changes to the self-insured private plan template, it will deliver an addendum to the employer with a self-insured private plan that shall function as an approved amendment to the previously approved self-insured private plan. An employer must incorporate the addendum into the self-insured private plan by the effective date provided in the addendum. Failure to amend a self-insured private plan template by the effective date provided by the commission may result in the involuntary withdrawal of private plan approval.

3. Separate applications. Each application is a separate application for purposes of determining the effective date of an approved private plan.

H. Revocation of private plan approval.

1. Repeat violations. The commission may deny approval to use a private insurance plan based on a record of more than one violation in the past three years, including administrative determination, arbitral award, civil judgment, or settlement agreement, involving the APIP administrator or the employer seeking approval of a self-insured APIP, including for violations of: the Act and this chapter, another jurisdiction’s similar paid family and medical leave law, or any law or regulation implemented by the State Corporation commission .

2. Involuntary termination of approval. The commission may terminate an employer’s private insurance plan approval when the commission determines that the APIP or the employer has not satisfied the minimum requirements of the Act and or that the terms or conditions of the plan have been violated.

a. Causes for plan termination include:

(1) Failure to pay benefits in the amount and duration required by the Act and this chapter, or failure to pay benefits in the amount and duration required by the APIP where the APIP provides benefits in a greater amount or duration than required by the Act and this chapter;

(2) Failure to make timely benefit determinations or to pay benefits timely and in a manner consistent with the Commonwealth Plan;

(3) Failure to provide documentation to demonstrate sufficient financial capacity to meet all current and anticipated claim obligations under the program as described in § 60.2-816 2 B of the Code of Virginia; or

(4) Misuse of private plan funds.

b. The commission will provide an employer and the APIP Administrator notice of involuntary termination at least 14 days prior to the effective date of the termination.

c. Involuntary terminations shall result in the establishment of a past-due mandatory contribution debt in the amount that would have been owed to the Commonwealth Plan had the employer been in the Commonwealth Plan since the most recent private plan approval was granted. Involuntary terminations may also result in civil penalties against an employer, including execution on and collection of any bond amount.

3. Appeal rights. The outcome of a private plan approval revocation is subject to an appeal, in accordance with 16VAC5-990-110 C.

I. Renewal requirements.

1. Frequency. Pursuant to § 60.2-816 B of the Code of Virginia, employers providing benefits through an APIP shall reapply to the commission for approval to meet their obligations under the Act via an APIP every two years. If a complete application has been timely filed and approval is pending after expiration, the commission may elect to extend the previous approval while it is reviewing the recertification application.

2. Timeline. Employers seeking recertification of their private plan approval must submit an application for recertification at least ninety days before the expiration of their private plan approval.

3. Expiration. If a new application is not received upon expiration of an APIP, the commission will notify the employer that they will be considered enrolled in the Commonwealth Plan upon the expiration of the APIP. A fine may apply in conjunction with 16VAC5-90-100 N.

J. Recordkeeping and reporting requirements.

1. APIP administrator recordkeeping requirements. An APIP Administrator must keep and maintain documentation of the following for a minimum of four years:

a. Applications for benefits;

b. Benefits paid, including payment dates and amounts;

c. Outcome of internal initial applications for benefits;

d. Internal reconsideration requests and appeals received;

e. The outcome of internal reconsiderations and appeals received;

f. Documents, including wage data, containing the information upon which benefits determinations were based; and

g. Contributions received from employees.

2. Employer recordkeeping. An employer must keep and maintain all records required by 16VAC-90-40 A for a four-year period.

3. Quarterly reporting. A private plan administrator must, on a quarterly basis, submit to the commission a private plan administration summary of the previous calendar quarter for employees localized in Virginia. The private plan administration summary must be submitted no later than the last day of the month immediately following the end of the calendar quarter addressed by the summary. After a private plan administrator has submitted timely quarterly administration summaries for three years, the private plan administrator may, unless otherwise directed by the commission , submit its private plan administration summary annually, which will be due on January 30 of each year. Information received by the commission in the private plan administration summary will be aggregated and publicly reported as described in § 60.2-818 of the Code of Virginia. The private plan administration summary must include aggregate summaries of the following:

a. Total number of benefits applications received;

b. Total number of benefit applications approved, pending, denied, or closed.

c. Total benefit amounts paid and amount of benefits paid to beneficiaries per week;

d. Total number of employees covered under the private plan;

e. Program participation by leave type listed in § 60.2-802 of the Code of Virginia;

f. Gender of beneficiaries;

g. Race and ethnicity of beneficiaries;

h. Age of beneficiaries;

i. Total number of appeals received; and

j. Total number of appeals affirmed, reversed, modified, or withdrawn; and

k. For leaves taken under § 60.2-802 A 2 of the Code of Virginia, family members for whom leave was taken to provide care.

4. Requests for information. Within thirty days of the commission's written request, an APIP administrator or an employer with an APIP shall provide any documentation that it is obligated to maintain. If the employer or private plan administrator requests an extension and provides good cause for the extension, the commission may extend the thirty-day deadline. If the employer or private plan administrator does not provide the requested documentation by the deadline, the commission may withdraw its approval of the private plan.

K. Oversight of APIPs by the commission.

1. Review. The commission may initiate a review of an APIP to determine whether it is in compliance with the Act upon receipt of a complaint or at the commission's discretion.

2. Documentation. During a review, an APIP Administrator and employer must provide all information and documentation requested by the commission within thirty days of receiving a request, unless another deadline is established by the commission.

3. Termination. Failure by an employer or APIP Administrator to cooperate with a commission review of an APIP is grounds for the commission’s termination of the employer’s APIP approval.

L. Notice to employees.

1. Notice to employees, generally. An employer that elects to meet their responsibilities using an APIP must provide notice to employees as required by 16VAC5-90-40 E, except that the employer may not use the commission’s sample notice to satisfy their notice responsibilities.

2. Employer election of private plan. No later than thirty days before the effective date of approval of an APIP, an employer must deliver to each of its employees a written notice of its election and approval by the commission to administer benefits with an APIP in lieu of participating in the Commonwealth Plan. For an employee whose start date or Virginia transfer is later than thirty days before the effective date of an approved private plan, an employer must deliver the written notice to the employee immediately upon hire or transfer. This paragraph applies both to newly adopted APIPs and to renewed APIPs.

3. Notice of appeal rights. When providing claimants with notice of an initial determination or redetermination, an APIP Administration must attach a written statement explaining the claimant’s reconsideration and appeal rights, including their right to file an appeal with the commission pursuant to 16VAC5-90-110 B. This notice will clearly state the manner in which a claimant may seek reconsideration of the initial determination or file an appeal.

M. Transition to or from a private plan.

1. Plan changes during approved leave. If a covered individual is using approved leave under the Act when their employer changes from the Commonwealth Plan to an APIP, from an APIP to the Commonwealth Plan, or from one APIP to another APIP, the plan under which the employee was covered when their benefits were approved is required to continue paying benefits for continuous, intermittent, and reduced schedule leave through the remainder of the previously approved claim. If a claimant requests an extension of their original leave, or recertification is required, the claimant may reapply for benefits with their new plan.

2. Termination of an APIP. An employee is no longer covered by an APIP if the commission withdraws the approval of the private plan. A private plan for which the commission has withdrawn approval shall pay or continue to pay benefits under the terms of the APIP to an employee who filed a valid claim for benefits under the APIP before the effective date of termination, until the duration of the claim ends.

a. If the employer or APIP Administrator does not pay the employee all benefits due, the employee may apply to the commission for any unpaid benefits. The commission may recover the costs of unpaid benefits from the APIP Administrator or employer.

b. An employee previously covered by a terminated APIP is, if otherwise eligible, immediately entitled to benefits under the Act to the same extent as though they were not covered by an APIP.

3. Former employees and benefit applications. A covered individual that has been separated from an employer with an APIP for less than 26 weeks is eligible for benefits as follows:

a. If the former employee remains unemployed on the date that an application for benefits is filed, the former employee will remain eligible for coverage by their former employer’s APIP.

b. If the former employee has become employed by a different employer at the time that an application for benefits is filed, the former employee shall be covered based on the new employer's coverage. If the new employer is covered under the Commonwealth Plan, the former employee may apply for benefits from the commission. If the new employer has an APIP, the claimant may apply for benefits provided by the APIP.

4. Employer obligations after termination of private plan approval.

a. Within seven days of the effective date of a voluntary or involuntary termination of private plan approval, the employer must notify all employees of the termination and notify all employees of the new alternate coverage as a result of the termination.

b. Employers transitioning to the Commonwealth Plan must provide all employees with information describing benefits available under the Commonwealth Plan. The commission will publish a sample notice which employers may use to satisfy their requirements under this subdivision in English, Spanish, and any language that is the first language spoken by at least five percent of the Commonwealth’s population.

c. If an employer's workforce becomes covered by the Commonwealth Plan because the employer's private plan approval was involuntarily terminated, the employer must remain covered by the Commonwealth Plan and pay contributions to the state for a period of at least three years.

N. Fines and penalties.

1. Monetary amount. The commission may assess the following monetary penalties against an employer with an APIP found to have violated this chapter:

a. For employers with fewer than 50 employees:

(1) $500 for the first violation; and

(2) $1,000 for the second, and each successive violation.

b. For employers with 50 or more employees:

(1) $1,000 for the first violation; and

(2) $2,000 for the second, and each successive violation.

2. Waiving collection for prompt correction. The commission must waive collection of any penalty if the employer corrects the violation within thirty days of receiving a notice of the violation and the notice is for a first violation.

3. Waiving collection for good faith error. The commission may waive collection of any penalty if the commission determines the violation to be a good faith error by the employer.

4. Lapse in coverage. If an employer's private plan benefit coverage is found to have lapsed during any period in which the APIP should have been in effect, the employer may be assessed a fine equal to the amount of the contributions the employer would owe to the Commonwealth Plan for the time period in which coverage was not provided plus a penalty of 1.0% of that employer’s total payroll for the same period.

5. Employee Cost-Sharing Prohibited. An employer may not deduct any employee portion to pay this fine.

6. Appeals. Fines under this subsection can be appealed in accordance with the process outlined in 16VAC5-990-110 C.

A. Definitions.

"Appeal" means a written statement filed with the commission to challenge one or more issues in a determination. Filing an appeal initiates a process by which the commission must review the contested issues.

“Determination” means either: (i) a written commission decision; or (ii) a private plan decision that is either written or designated as a “determination” by the private plan administrator. Examples of a determination include a written document issued by the commission or an APIP Administrator that memorializes the following:

a. Approval or denial of all or part of a claim for benefits under the Act;
b. A redetermination in which the commission or an APIP Administrator has reconsidered a determination;
c. An assessment of contributions;
d. Imposition of locals, fines, penalties, or any other monetary liability;
e. Identification of an overpayment or underpayment, requirement to reimburse the commission for benefits, or denial of a request to waive an overpayment or underpayment;

f. Disqualification of a claimant from benefits for alleged misrepresentation or fraud; or
g. Denial or withdrawal of the approval of a private plan or a finding that a private plan committed a violation of the Act or this chapter.

“Party” means a person expressly identified as a “party” in the Act or this chapter, or who has a right or a legal interest potentially affected by the outcome of an appeal including:

a. The commission is a party to any appeal of commission determinations.
b. An APIP Administrator, as defined in 16VAC5-90-10 A is a party to any appeal involving a private plan.

Scope. This Section does not apply to complaints or reports related to program integrity, which will be investigated pursuant to 16VAC5-90-60.

B. A claimant's right to a reconsideration of the commission’s initial determination.

1. Right to reconsideration. Any claimant who is adversely affected by an initial determination of the commission may seek a reconsideration of that initial determination. A reconsideration is an informal, non-adversarial process in which a claimant may discuss their claim with a commission representative and provide additional information relevant to their claim.
2. Choice to appeal. A claimant who is adversely affected by an initial determination may elect to: (i) file a request for reconsideration, which may be subsequently followed by an appeal; or (ii) file an appeal without first using the reconsideration process.
3. Requests for reconsideration. A claimant may file a request for reconsideration with the commission within 30 days of the initial determination. The deadline to request a reconsideration may be extended by up to a maximum of 30 days for good cause as defined in 16VAC5-90-20 F 4.

a. A claimant may file a request for reconsideration in the form and manner described in the written statement that the commission will provide a claimant alongside the initial determination pursuant to 16VAC5-90-20 I 2 c.
b. The commission will only consider a request for reconsideration filed by a claimant seeking reconsideration of an initial benefits determination. All other determinations may be challenged by filing an appeal pursuant to 16VAC5-90-110 C.

4. Reconsideration process. Upon receiving a request for reconsideration, the commission will promptly connect the claimant to a Claims Manager who will review the claim, provide the claimant with information about the reasons for the initial determination, and allow the claimant an informal opportunity to provide additional information to the commission to cure their claim.

a. A claimant must file a request for reconsideration with the commission within 30 days of the initial determination. The deadline to request a reconsideration may be extended by up to a maximum of 30 days for good cause as defined in 16VAC5-90-20 F 4.
b. When reconsidering an initial determination, the commission may request any information or documentation that the commission deems necessary for the reconsideration.
c. Upon reviewing a request for reconsideration, the Claims Manager will issue a redetermination decision within 30 days. The Claims Manager may extend the deadline to issue a redetermination decision by 30 additional days with the permission of the claimant. The redetermination will either affirm the initial determination or amend the determination. The redetermination will briefly state the reason for the commission’s decision.

5. Notice from the commission. Upon receiving a request for reconsideration, the commission will notify the claimant and an employer from which the claimant has applied to take family and medical leave of the request for reconsideration. Upon issuing a redetermination, the commission will notify a claimant and their employer as described in 16VAC5-90-20 I.
6. Commission review. The commission may review or reconsider any determination at its own discretion for accuracy, quality, and potential resolution of any aspects of the determination that may be resolved administratively, without the need for an appeal.
7. Appeal rights. A claimant who is adversely affected by the commission’s redetermination decision may file an appeal pursuant to 16VAC5-990-110 C

C. Appeals procedures.

1. Filing requirements. A party adversely affected by a final, written determination or redetermination may appeal by filing a letter of appeal. To be considered by the commission, a letter of appeal must:

a. Be filed online or in another method approved by the commission;
b. Be filed no later than 30 days after the date of the determination or redetermination that is the subject of the appeal. The deadline to file an appeal may be extended by up to a maximum of 30 days for good cause for late filing as defined in 16VAC5-90-20 F 4;
c. Be signed by the party, the party’s designated representative, or the party’s attorney; and
d. Identify the determination or decision being appealed and state that the filer disagrees with the determination or decision and wants to appeal.

2. Hearing officer. The commission will assign each properly filed appeal, along with the record in connection to a claim, to a Hearing Officer. The Hearing Officer shall review the appeal, create an administrative record for the claim and the appeal, and conduct hearings and pre-hearing proceedings. The Hearing Officer will preside impartially over the appeal and ensure the appeals process is fair to all parties.

a. A Hearing Officer has the power to administer oaths and affirmations, take testimony, certify official acts, issue procedural orders, preclude or limit evidence or legal arguments, issue remedies or sanctions, and take any other reasonable steps the Hearing Officer deems necessary to resolve the pending appeal and control the hearing.
b. A Hearing Officer is bound by all applicable statutes, regulations, and precedent established by the commissioner pursuant to 16VAC5-90-110 C 8. A Hearing Officer does not have the authority to rule any statutory or regulatory requirements invalid on any grounds.

3. Procedural rules. The commissioner has the power to develop rules of procedure and evidence governing appeals, including rules governing the conduct of hearings. A Hearing Officer shall be bound by the commission’s rules of procedure and evidence.

a. Upon receipt of a timely filed appeal, the Hearing Officer will issue a procedural order governing the proceedings. Parties to the appeal must comply with all procedural orders issued in an appeal.
b. If a scheduled telephone call, meeting, conference, or hearing will be part of the process, the Hearing Officer will consult parties to an appeal about their availability when scheduling.
c. The Hearing Officer may conduct hearings and other appeals proceedings through electronic means, telephone, or in person. A party to an appeal may waive their right to a hearing in favor of a decision based on the paper record of an appeal. If the appeal involves multiple parties, all parties must waive the right to a hearing.

4. Standard of review. A de novo standard of review will apply to appeals under this Section. A Hearing Officer will decide an appeal on the basis of a review of the evidence in the record and applicable law, without deference to the initial determination or redetermination. The facts will be determined by the Hearing Examiner based on the preponderance of the evidence.
5. Evidence. Parties may present witnesses and offer into the record documents or other information as evidence. Parties have the right to object to documents or other information offered by other parties and to ask questions of witnesses. Where a party is unrepresented, a Hearing Officer shall assist that party in presenting that party’s evidence. The Hearing Officer must ensure that all relevant facts are clearly and fully developed in the record.

a. If parties to an appeal do not possess evidence or information necessary for a Hearing Officer to make proper, accurate, or complete findings of fact and conclusions of law, the commission may seek that information from another entity including an employer, health care provider, or an APIP administrator.

6. Decision. The Hearing Officer will consider the facts, law, and information pertinent to the appeal and issue a written Decision that includes a reasoned basis for the outcome of the appeal.

a. The commission will provide notice and a copy of the Decision to all parties to the appeal.
b. The commission will attach a written statement of a party’s right to seek further judicial review to each Decision and Order.

7. Notice of right to sue. Appeals will be heard and decided in a timely manner. In the event that a claimant does not receive a Decision from the commission within 180 days of filing an appeal, the claimant may choose to request that the commission issue a notice of right to sue.

a. Upon receiving a request for a notice of right to sue, the commission must issue such notice to the requesting claimant within 14 days.
b. Issuance of a notice of right to sue will terminate further proceedings of an appeal unless the commissioner or their designee determines that it would effectuate the purposes of the Act to further process the appeal.

8. Binding precedent. To promote consistent and reasoned decision-making, the commission may establish precedent that binds all Hearing Officers hearing appeals under the Act, including through internal guidance, opinion letters, or determining that select decisions will be precedential. The commission may not establish precedent that is contrary to the rights, benefits, or protections afforded to a covered individual under the Act or this Chapter.
9. Representation. Parties may be self-represented, represented by an attorney, or another designated representative. No person may charge a fee of any kind for representing a party to an appeal, except for services provided by a licensed attorney or in connection with representation by a licensed attorney. Parties are responsible for bearing the costs of representation.
10. Harmless error. The Hearing Officer may disregard any error, defect, or variance in the claim’s determination, redetermination, or other proceeding that does not affect the substantial rights of a party to the appeal.
11. Appeals related to cost-sharing assessments. A Hearing Officer may only overturn or revise an administrative fee assessment upon a finding that the employer did not have APIP coverage for the entire fiscal year, or upon a finding that the commission abused its discretion.

D. Judicial review of commission decisions.

1. Administrative exhaustion. Pursuant to § 60.2-812 B of the Code of Virginia, a party aggrieved by a determination or decision of the commission may file an appeal in a court of competent jurisdiction, after exhausting all administrative remedies established by the commission. A party has exhausted their administrative remedies if:

a. The party filed a timely appeal pursuant to 16VAC5-90-110 C and received a final Decision; or
b. The party filed a timely appeal pursuant to 16VAC5-90-110 C and received a notice of right to sue pursuant to 16VAC5-90-110 C 7.

2. Timeliness. A party seeking judicial review of an agency determination or decision must file in a court of competent jurisdiction either: (i) within 30 days after the commission issues a Decision; or (ii) within 30 days of receiving a notice of right to sue.
3. Standards of review. Pursuant to § 2.2-4027 of the Code of Virginia, a court of competent jurisdiction shall determine whether, with respect to issues of fact, there was substantial evidence in the agency record to support the commission’s decisions or determinations.

1. Trust Fund established. The Family and Medical Leave Insurance Trust Fund is established on the books of the Comptroller in the Virginia State Treasury as a non-reverting fund. Interest earned on moneys in the fund shall remain in the fund and be credited to it.
2. Purpose of the Fund. The purpose of the Fund shall be to pay family and medical leave benefits as required by the Act and to pay the administrative costs of the program.
3. Deposits to the Fund. The Fund consists of:

a. Contributions collected pursuant to the Act together with any interest earned thereon;
b. All funds appropriated for the purposes of the Fund;
c. Property or securities acquired through the use of money belonging to the Fund together with any earnings of such property or securities;
d. Fees, fines and penalties collected under the Act;
e. Interest earned on moneys in the Fund; and
f. Any other money received from any source, including gifts, donations, grants, bequests, and other funds credited to the Fund.

4. Disbursement of funds. Amounts may be disbursed from the Fund for:

a. The payment of family and medical leave benefits in accordance with the Act; and

b. The payment of administrative costs of the program, including associated start-up costs. Funds may not be expended, released, appropriated or otherwise disposed of for any other purpose.

5. Moneys remaining. Any moneys remaining in the Fund, including interest thereon, shall not revert to the general fund but shall remain in the Fund at the end of each fiscal year.