West Virginia — Leave Laws

West Virginia's Parental Leave Act (W. Va. Code § 21-5D-1 et seq.) covers only state government employees and county board of education employees; it does not apply to private employers of any size. The statute defines "Employer" to include "any department, division, board, bureau, agency, commission or other unit of state government and any county board of education" — private businesses are excluded. Private-sector employees in West Virginia rely on federal FMLA coverage (employers with 50+ employees) or employer-provided policies.

Source: W. Va. Code § 21-5D-2(d)

West Virginia's Paid Parental Leave Pilot Program, enacted as Article 5J of Chapter 21, is a temporary pilot program—not a permanent addition to state leave law. Practitioners should note that the statutory text is explicit about the program's expiration: "This article shall be of no further force and effect on December 31, 2027." (W. Va. Code § 21-5J-10).

This means:

• The entitlement to up to 12 weeks of paid parental leave for qualifying state employees is only in effect from July 1, 2024, through December 31, 2027.
• Unless the West Virginia Legislature takes further action to extend, renew, or make permanent the pilot, no right to paid parental leave under Article 5J will exist for qualifying events occurring after the sunset date.
• All other provisions of Article 5J—including eligibility definitions, application process, and leave integration mechanics—will also lapse at that point.
• Employers and employees should monitor for possible legislative extension prior to December 2027, but as of now, the law unambiguously expires.

This expiration clause is found directly in the enabling statute—it is not the result of agency rulemaking or executive order. The 2024 pilot is distinct from the ongoing, unpaid (and much older) Parental Leave Act under Article 5D, which remains in force for eligible public employees even after the pilot’s sunset.

Source: W. Va. Code § 21-5J-10

Under the West Virginia Parental Leave Act, "Employee" is defined as "any individual, hired for permanent employment, who has worked for at least twelve consecutive weeks performing services for remuneration within this state for any department, division, board, bureau, agency, commission or other unit of state government, or any county board of education in the state." The statute imposes two distinct eligibility gates that a public-sector worker must satisfy before gaining leave rights.

Permanent employment requirement. The individual must be hired for permanent employment, not temporary or seasonal work. The statute carves out four categories of workers who do NOT qualify as "Employee" even if they work for a covered public employer:

• Elected officials and members of any board or commission;
• Individuals who hold a full-time, salaried public office under the state constitution or state law;
• Principal administrative officers of any department, division, board, bureau, agency, commission or other unit of state government, or any county board of education; and
• A person in a vocational rehabilitation facility certified under federal law who has been designated an evaluee, trainee, or work activity client.

12-week service requirement. The individual must have worked for at least twelve consecutive weeks performing services for remuneration within West Virginia before becoming entitled to leave. This tenure threshold is measured from the date of hire and runs consecutively — an employee who works eleven consecutive weeks, quits, and is later rehired must start the count over. Unlike the federal FMLA's 1,250-hour rule, West Virginia's Act does not contain an hours-worked floor; the statute requires only that the employee has worked "for at least twelve consecutive weeks performing services for remuneration," meaning a part-time permanent employee working even minimal weekly hours can qualify once the twelve-week tenure clock runs.

The twelve-week tenure test is significantly shorter than the federal FMLA's twelve-month employment requirement (plus 1,250 hours in the prior twelve months). A newly hired state government employee who works three full months can claim leave under the state Act even though she would not yet qualify for federal FMLA coverage. Conversely, the permanent-employment gate excludes temporary state employees altogether, a category that may be eligible for FMLA if employed by a covered state agency that employs 50 or more within 75 miles.

Source: W. Va. Code § 21-5D-2(c)

The West Virginia Parental Leave Act gives eligible public-sector employees (permanent employees of state government agencies and county boards of education) a right to be restored to their position upon returning from up to 12 weeks of parental or family leave. The core job restoration provision is found in W. Va. Code § 21-5D-6(a), which provides that the employer "shall return the employee to the employee's previous position of employment" after the leave period ends. The statute does permit the employer to hire a temporary replacement during the leave but makes clear that this does not modify the returning employee’s right to reoccupy their prior role.

Importantly, the Act does not create a carveout for key or highly compensated employees, nor does it allow the employer to deny reinstatement due to operational hardship. The only structural limitation is that the leave period cannot exceed twelve weeks in any twelve-month period.

Additionally, under § 21-5D-6(b), an employee may not lose seniority or other employment benefits accrued before or during the leave, except where benefits are contingent on actual work performed (such as performance bonuses). Accrual of new benefits may be paused during the unpaid leave period, but nothing earned up to the start of the leave can be stripped due to the employee’s absence.

In sum: eligible public-sector employees under the West Virginia Parental Leave Act have a statutory right to job restoration at the end of leave, with no general exception for reorganization, operational need, or so-called "key employee" status. Employers may use temporary replacements but must return the employee to their position.

Source: W. Va. Code § 21-5D-6

The West Virginia Parental Leave Act draws a clear line between foreseeable and unforeseeable leave regarding notice requirements for eligible public-sector employees. The statute directs that when leave is foreseeable—such as when a birth or adoption is anticipated—an employee must provide their employer with written notice at least two weeks prior to the intended leave date. This requirement is set out plainly in W. Va. Code § 21-5D-4(a), which states: “When leave is foreseeable, the employee shall provide the employer with written notice of the intended leave at least two weeks prior to the leave.”

In contrast, for unforeseeable leave triggered by a medical emergency, the law waives this two-week requirement. Instead, it requires the employee to provide written notice as soon as practicable under the circumstances: “In medical emergencies, written notice shall be provided as soon as practicable.” The statute itself does not define “medical emergency” or set a specific timeframe for providing this emergency notice, so timing is left open to the facts of each case.

The Act does not contain any explicit examples of foreseeable events or explicit penalties for failing to provide timely notice. Nor does it contain an express mechanism for employer waiver. Nothing in § 21-5D-4(a) addresses whether or how an employer may enforce the notice rule if it is not met; the statute is silent as to consequences or remedies.

Source: W. Va. Code § 21-5D-4(a)

West Virginia law requires all employers—including those in the private sector—to excuse employees from work for the period they are required to attend jury duty. Under W. Va. Code § 52-1-21, an employee who receives a summons for jury service must present it to their immediate supervisor by the next workday after receiving it, and the employer must then excuse the employee from work for the days they are serving as a juror. The law does not require employers to pay employees for time missed due to jury service—there is no statutory obligation to provide paid jury duty leave.

Anti-retaliation and remedies: W. Va. Code § 52-3-1 prohibits employers from discharging, threatening, or intimidating an employee, or reducing their pay or benefits, because they are absent for jury service. If an employer violates this rule, the affected employee may file a court action for reinstatement and may recover back pay. The statute also authorizes the court to impose a fine of $100 to $500 for contempt. However, neither this section nor § 52-1-21 creates a right to paid leave for jury service in the private sector.

Public-sector exception: For employees of West Virginia state government agencies (subject to the Division of Personnel), administrative rule entitles them to paid jury duty leave, and such leave does not deduct from annual or sick leave balances. This is a policy overlay, not part of the state leave statute applicable to private employers.

Summary:

• Private-sector employers must provide job-protected but unpaid leave for jury duty.
• Retaliation or adverse action against employees for attending jury duty is prohibited and subject to legal remedy.
• State government employees receive paid jury duty leave by administrative policy, not by statute.

Source: W. Va. Code § 52-1-21, W. Va. Code § 52-3-1

Interaction of PLA, FMLA, and Effective July 2026 Paid Parental Leave

The West Virginia Parental Leave Act (WVPLA) and federal FMLA interact for public-sector employees as follows:

Unpaid Leave (Current Rule):

• WVPLA (W. Va. Code § 21-5D-1 et seq.) covers permanent state or county board of education employees with at least 12 consecutive weeks of service.
• FMLA (29 U.S.C. § 2611 et seq.) covers state/public employees working for employers with 50+ employees and requires both 12 months of service and 1,250 hours in the preceding year.
• If an employee qualifies under both statutes, leave runs concurrently, not consecutively ("no double dipping"). W. Va. Code § 21-5D-4(e) states the state PLA does NOT grant additional rights where similar entitlements exist under another law, including FMLA.

New Paid Parental Leave — Effective July 1, 2026:

• Effective July 1, 2026, SB 114 (W. Va. Code § 21-5J, as enacted) creates a paid parental leave benefit for qualifying public-sector employees. The paid and unpaid leave laws will be integrated:
• The maximum combined job-protected leave in a 12-month period remains 12 weeks total for a qualifying event, whether paid or unpaid.
• Paid parental leave under Article 5J and unpaid parental leave under Article 5D are not additive beyond this 12-week cap, nor is there any right to stack paid (state) and unpaid (federal) leave for the same event.
• Where both paid and unpaid (federal or state) leave apply, they exhaust concurrently.

Division of Personnel Policy and Guidance:

• The West Virginia Division of Personnel follows the statutory concurrent leave rules. Employees eligible under multiple leave statutes are entitled to the greater or more generous provisions, but total leave for a single qualifying event does not multiply.
• Procedures and forms for all parental leave types—including FMLA and the new paid pilot—are available through the Division of Personnel’s employee resource portal.

Summary:

• For public employees eligible under both WVPLA and FMLA, leave periods run concurrently.
• For leave events on or after July 1, 2026, paid and unpaid parental leave likewise exhaust concurrently, and the maximum combined duration remains 12 weeks in a 12-month period.

Source: W. Va. Code § 21-5D-4(e) Source: SB 114, 2026 Regular Session (enacting Paid Parental Leave) Source: West Virginia Division of Personnel - Paid Leave Information and Forms