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)

Eligible public-sector employees under the West Virginia Parental Leave Act are entitled to a total of 12 weeks of unpaid family leave during any 12-month period for the birth or adoption of a child, or to care for a son, daughter, spouse, parent, or dependent with a serious health condition. Employees must first exhaust all accrued annual and personal leave before transitioning to the 12-week unpaid entitlement. Leave for a serious health condition may be taken intermittently when medically necessary.

Source: W. Va. Code § 21-5D-4

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)