Guide to employee benefits and HR rules in Virginia

Is your organization compliant with Virginia's employment and HR laws?

If you're based in Virginia or employ workers in Virginia, it's important to familiarize yourself with the state's benefits and HR compliance laws. This guide to HR laws in Virginia will provide a general overview of the laws you need to know.

Topics covered in this guide include:

• Why are an employee's rights in Virginia?
• What are employers required to provide to Virginia employees?
• Health insurance coverage in Virginia
• Wage laws in Virginia
• Other HR rules in Virginia
• Frequently asked questions

What are an employee’s rights in Virginia?

State and federal laws protect employee rights. If you currently have or plan to hire workers in the state, you must know what rights your employees have.

Some Virginia-specific state rights include:

• At-will employment
• Virginia employers and employees can end their relationship anytime, for any reason, without notice.
• Right-to-work laws
• Under Virginia law, an employer isn’t allowed to discriminate against an employee based on their membership or non-membership in a labor union or labor organization.
• Whistleblower laws
• The Virginia Fraud Against Taxpayers Act punishes people who make false claims, misuse state property, or evade payment to the state. Successful claimants can receive 15-30% of the recovery, depending on the involvement of the Virginia Attorney General. Additionally, employers can't retaliate against whistleblowers for filing a claim or helping the state with its own claim.
• Employment applications
• It's against Virginia law for an employer to ask about expunged criminal charges. A "ban the box" order prohibits questions about criminal history on state job applications, except for certain positions.
• Applications must ask if applicants are legally eligible to work in the United States. It's a Class 1 misdemeanor to hire someone not authorized to work in the country.
• Equal pay
• Virginia's Equal Pay Act prohibits business owners from discriminating on the basis of race, religion, sex, sexual orientation, gender identification or expression, political affiliation, national origin, marital status, veteran status, disability, or age when determining pay.
• Weapons in the workplace
• In Virginia, there’s an exception to the general prohibition on carrying a concealed weapon. It allows individuals who can legally possess a firearm to carry a handgun in their personal vehicle, as long as it's secured in a container or compartment.
• However, a Virginia Attorney General opinion about the exception states that an employer can prohibit firearms in vehicles on their premises if there is a company policy or signage.
• Immigration verification
• Along with Federal I-9 compliance, Virginia requires all state agencies to use E-Verify for new hires.

What are employers required to provide to Virginia employees?

In addition to what federal law requires, Virginia employment law mandates that employers must provide eligible employees with specific employee benefits and accommodations.

Required benefits include:

• Retirement plans
• Organizations with 25 or more employees that have been open for at least two years and don’t offer a retirement plan must register for RetirePath. RetirePath allows your employees to participate in an individual retirement account (IRA).
• Jury duty leave
• Family and medical leave
• Witness leave
• Virginia law mandates paid or unpaid leave for employees summoned as court witnesses.
• Crime victim leave
• In Virginia, employers must offer employees who are crime victims paid or unpaid leave to attend all criminal proceedings.
• Military leave
• Virginia follows the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). When the employee returns to work, they should receive the same pay increases and other benefits as if they had been present throughout their absence.
• Virginia has an additional requirement for employers, which also applies to the members of the Civil Air Patrol. Their leave of absence is capped at:
• 10 days per year for training
• 30 days per year for responding to active duty
• Sick leave
• According to the Code of Virginia Article 2.1, all employees must accrue at least one hour of paid sick leave for every 30 hours they work. Unused sick time must roll over to the following year. The state caps sick leave at 40 hours per year unless you allow a higher limit.
• Other leaves of absence
• The Virginia Sickness and Disability program allows full-time state employees in Virginia who are active members of VRS or VaLORs, and state police officers who are active members of SPORS, to receive sick leave based on their length of service.
• State employees can take paid leave for personal reasons or emergencies. State employees receive family and personal leave based on their length of service.
• State employees can take up to 30 business days of leave per year for organ or bone marrow donation leave in addition to their regular paid leave.
• Workers’ compensation insurance
• The Virginia Workers' Compensation Act applies to most employers in Virginia with three or more employees. The Virginia Workers' Compensation Commission administers the law. Under the Act, employees who suffer injuries or diseases relating to their employment may be eligible to receive several types of benefits.
• Breastfeeding breaks
• Virginia House Joint Resolution 145 encourages employers to provide unpaid breaks and appropriate spaces for employees to breastfeed or express milk.
• Furthermore, according to the federal Fair Labor Standards Act (FLSA), employers must offer reasonable breaks for employees to express breast milk for their nursing child for up to one year after the child's birth. Employers must also provide a private place, other than a bathroom, for employees to use while they express breast milk.
• Unemployment benefits

Virginia doesn’t require the following benefits:

• Vacation leave
• Holiday leave
• Voting leave
• Bereavement leave
• Severance pay
• Parental leave
• Virginia doesn't require an employer to offer its employees parental leave. But, under the Virginia Human Rights Act (VHRA), pregnancy is considered a disability, and employers must provide the same leave benefits to pregnant women as they do to other employees with temporary disabilities. The federal Family and Medical Leave Act (FMLA) also requires employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave for specified medical or family reasons under certain circumstances.
• Meal breaks
• Virginia law only requires a meal break for minors. Employees under 16 can't work for more than five hours without a 30-minute lunch period.
• Health insurance benefits
• Federal law requires employers to provide affordable health benefits with minimum essential coverage (MEC) and minimum value (MV) for organizations with 50 or more full-time equivalent employees (FTEs).

Health insurance coverage in Virginia

Even if you aren’t required to provide health insurance to your employees, health benefits are an excellent way to attract and retain top talent, especially in a tight labor market. However, rising premium costs have made it challenging for small and medium-sized businesses to offer traditional group health insurance.

But in Virginia, individual health insurance is cheaper on average than group coverage in every county. The chart below shows the difference in monthly premiums for Virginia's three most populated counties.

Let's go over how you can take advantage of this.

Health reimbursement arrangement (HRA)

A health reimbursement arrangement (HRA) is an IRS-approved, employer-funded health benefit that allows you to reimburse your employees, tax-free, for their individual health coverage premiums and other qualifying medical expenses.

With an HRA, you have complete control over your benefits budget while giving your employees more freedom to choose how they want to use their benefits.

Some HRAs, such as the individual coverage HRA (ICHRA), can satisfy the federal requirements for applicable large employers (ALEs). This allows organizations of all sizes that offer an HRA to save money on their health benefits.

Learn more about each HRA

Health stipend

A health stipend is a fixed sum of money offered to your employees to help pay for their healthcare expenses. A health employee stipend isn't a formal group health plan, so you have complete control over which expenses are eligible for reimbursement.

This makes a health stipend an excellent option for small businesses looking to offer a health benefit that covers costs health insurance or HRAs may not cover, such as mental health expenses.

However, a stipend doesn’t satisfy the Affordable Care Act’s employer mandate, and all reimbursements are taxable for employers and employees.

Wage laws in Virginia

There are various federal and state laws you need to consider when it comes to setting employee wages in Virginia.

Minimum wage laws

As of January 2023, Virginia’s standard minimum wage is $12 per hour. It will increase to $13.50 per hour in January 2025 and to $15 per hour in January 2026.

Tipped employees

Virginia laws don't regulate tipped minimum wage. Employers can offer tipped positions, but tips and employer contributions must equal at least the regular rate of $12.

Subminimum wage rate

The subminimum wage is the regulated hourly rate for specific categories of workers.

Only two types of workers in Virginia can receive pay below the state minimum wage:

• Part-time student workers
• Trainees under 20 during the first 90 days of employment

Employers must pay student workers at least 85% of the minimum wage. Employers must pay trainees under 20 at a rate of at least $4.35 for their first 90 days of employment.

Overtime hours

Federal law dictates that non-exempt employees must receive an overtime rate of 1.5 times their regular pay for any hours worked beyond 40 in a single workweek.

Along with federal exemptions, Virginia also enforces overtime restrictions on additional occupations:

• Farm workers
• Caddies on golf courses
• Taxicab drivers
• Summer camp workers
• Minors under 16
• Student workers
• Any person who is enrolled in secondary and trade schools
• Babysitters who work up to 10 hours per week
• Any person employed as a temporary foreign worker
• Salespeople
• Mechanics

Payment of wages

In Virginia, employers are legally obligated to provide regular compensation to their employees every two weeks.

Final pay

In Virginia, employers must give a final paycheck on or before the scheduled payday to anyone who leaves or is fired. This includes all unpaid wages and benefits.

Recordkeeping

Virginia law requires employers to maintain employee records for three years, including their personal information, wages, and work history.

Child labor standards in Virginia

Child labor laws in Virginia prohibit minors under the age of 14 from working. Minors under 16 need permits and have work-hour restrictions. Employers must keep records that verify the hours per week worked and breaks given to minors under 16. Additionally, there are regulations that outline the particular types of work that are prohibited or restricted for children under the age of 18.

Minors under 18 can't work in the following places or occupations:

• Any job with hazards that can cause serious harm or death, such as mining, logging, manufacturing, or explosive storage.
• Worksites that manufacture paints, colors, or white lead.
• Establishments where the consumption of alcoholic beverages is the main business.
• As a driver or helper on a truck or a commercial vehicle with more than two axles.

Other HR rules in Virginia

There are a few other HR rules you need to be aware of in Virginia.

Veteran's preference

In Virginia, employers can give preference to veterans for hiring or promotion-related decisions.

Anti-retaliation provisions

In Virginia, there are specific circumstances where employers can't retaliate against their employees.

These include:

• Having their earnings garnished for any one indebtedness.
• Filing a complaint or participating in an investigation under the Virginia Occupational Safety and Health Act.
• Having a certain genetic characteristic.
• Filing a claim with the Commissioner of Labor and Industry for unpaid or untimely paid wages.
• Serving in the Virginia National Guard, Virginia Defense Force, or National Guard of another state.

Protection from defamation

Virginia law protects employers from defamation if they disclose factual information about a current or former employee's job performance.

Marijuana use

In 2021, Virginia passed a law decriminalizing the possession of up to one ounce of marijuana for people 21 or older. The law also included strengthened protections for medical marijuana users. Virginia House Bill 1862 states that employers cannot punish or fire employees for using cannabis as long as it doesn't affect their work. However, employers can take action if employees use or possess marijuana during work hours.

No smoking

Smoking isn't allowed in enclosed areas unless exempted by statute according to the Virginia Clean Indoor Air Act.

Drug testing

Virginia allows employers to drug test employees and terminate them if they test positive. State contractors with contracts over $10,000 must also follow drug-free requirements.

Licensed home health organizations and exempt home care organizations must establish drug-free workplaces, including employee testing. They must also report positive results to health regulatory boards.

Employers are not allowed to charge job applicants for their own medical exams, and both prospective employees and current employees must give consent to a test. Also, employers can't force current employees to cover the cost of their own exams.

Frequently asked questions