The Virginia Chamber of Commerce is pleased to submit comments in response to the Department of Labor and Industry’s Notice of Intended Regulatory Action regarding the development of regulations as required by Chapters 1128 and 1129 of the 2026 Acts of Assembly. As the largest business advocacy organization in the Commonwealth, representing thousands of employers of all sizes and in all industries, the Virginia Chamber has a direct interest in ensuring the rulemaking process results in regulations that are workable, clearly understood, and implemented in a manner that ensures employers are able to comply.

1. Good-Faith Compliance Should Not Be Penalized

Chapters 1128 and 1129 recognize that enforcement should distinguish between willful noncompliance with the statute and inadvertent, good-faith violations. § 40.1-33.6:7(D) explicitly provides for an opportunity for employers to correct alleged violations, and subsection (F) limits the imposition of penalties to knowing violations of the law. These provisions clearly envision a regulatory framework which seeks to hold bad actors accountable without unnecessarily burdening employers who operate, and will continue to operate, in good faith. To ensure this vision is executed in practice, we respectfully urge the Department’s rulemaking include the following actions:

• Define the “reasonable time to correct” as no less than 30 days from notice of an alleged violation, and further afford employers the opportunity to request an extension of the 30-day period for good cause;
• Clarify that a “knowing violation” means an employer has either (i) actual knowledge an act violates the statute, (ii) acts in deliberate ignorance of the requirements of the statute, or (iii) acts in reckless disregard for the requirements of the statute, not simply technical noncompliance where an employer acts in good faith and upon reasonable grounds to believe they were compliant.
• Clarify the collective bargaining exemption in § 40.1-33.6:2(M), specifically whether the exemption applies to subsequent collective bargaining agreements or collective bargaining agreements that last beyond December 31, 2030;
• Clarify which, if any, requirements of the statute apply to an employer who voluntarily provides employees paid time off in excess of that required by the statute;
• Define the terms “interfere with, restrain, deny the exercise of, or deny the attempt to exercise…” in § 40.1-33.6:6(B), and provide specific examples of acts or omissions that meet this standard;
• Ensure the “informal conference” process created by § 40.1-33.6:7(E) appropriately coordinates with the cure period in subsection (D). Coordination between these subsections will ensure that employers have a legitimate opportunity to resolve first-time, unintentional violations before civil penalties are assessed; and
• Develop and make available model notice and recordkeeping templates to ensure employers, particularly small businesses without dedicated human resources or legal teams, can comply with the requirements of the law. Model templates or similar resources can benefit employers, employees, and the Department alike by fostering consistency in implementation across the Commonwealth.

In all areas of the rulemaking, we respectfully urge the Department to establish clear and workable regulations that ensure employers can implement the requirements of Chapters 1128 and 1129 in good-faith and which make a clear distinction between administrative or technical violations and knowing, willful violations.

2. Internal Contradictions and Conflicts with the Virginia Human Rights Act

Chapters 1128 and 1129 create an unresolved tension that we respectfully urge the Department to address in its rulemaking before it becomes an unnecessary source of employer liability. Subsection (G) of § 40.1-33.6:3 broadly prohibits an employer from requiring “disclosure of details of health information about an employee or an employee’s family member . . . as a condition of providing paid sick leave,” and further requires that any information the employer may possess be treated as confidential and disclosed only to the employee or with the employee’s consent.

Subsequently, subsection (H) permits an employer to require, “for paid sick leave of three or more consecutive days . . . related to subdivision A 1 or 2, documentation signed by a health care professional indicating that paid sick leave is necessary.” A signed certification of medical necessity is necessarily a disclosure of health information. In other words, the statute simultaneously forbids requiring disclosure of health information “details” while authorizing disclosure of those details as a condition of leave for longer absences. Chapters 1128 and 1129 do not provide a definition or other information which would allow for distinction between a compliant certification and a detail that would violate the provisions of subsection (G). We commend this inconsistency to the Department’s attention, and respectfully urge the Department’s rulemaking to specify, with clear examples, what a certification as authorized by subsection (H) may or may not contain. In the absence of clarification, it is unclear how an employer may request documentation for an extended absence without inadvertently violating the prohibiting on disclosure of “details of health information.” Failure to clarify this issue would create unnecessary liability for employers across the Commonwealth while also creating uncertainty for employees, health care providers, and the Department.

The ambiguity outlined above is further complicated in cases where the underlying absence relates to a disability under the Virginia Human Rights Act. § 2.2-3905.1(B)(5) requires covered employers to engage in “a timely, good faith interactive process” with an employee who has requested a disability accommodation, while § 2.2-3905.1(B)(2) prohibits an employer from taking “adverse action against an employee who requests or uses a reasonable accommodation. In cases where an absence of three or more days is disability-related, the certification authorized by § 40.1-33.6:3(H) functions as a disability-related medical inquiry. Yet Chapters 1128 and 1129 are silent on how that inquiry should relate to or be reconciled with the required interactive process.

Given these requirements, an employer following § 40.1-33.6:3(H) in good faith could find the request for documentation characterized in a separate proceeding as non-interactive or, worse, as an adverse action related to use of a reasonable accommodation. Subsection (G)’s default confidentiality rule, which limits disclosure to the employee or with the consent of the employee, further complicates the issue because a “timely, good faith interactive process” is likely to require an employer to share and discuss relevant health information internally among supervisors, human resources, and/or safety personnel to evaluate accommodation options. In the absence of clarification through legislative action, the Virginia Chamber respectfully urges the Department to provide clarification through this rulemaking process. We respectfully urge the Department to consider the following actions:

• Clarify, through regulatory definitions and illustrative examples, the boundary between “reasonable documentation” authorized under subsection (H) and “details of health information” prohibited under subsection (G);
• Provide that when a documentation request under subsection (H) coincides with a pending or anticipated disability accommodation request, an employer may satisfy the requirements of both statutes through a single, coordinated request rather than separate, potentially duplicative, requests;
• Clarify that an employer’s good-faith request for subsection (H) documentation alone does not constitute an adverse action or a failure to engage in an interactive process under § 2.2-3905.1; and
• Consult with the Office of the Attorney General’s Office of Civil Rights in this aspect of the rulemaking process, as the Department’s regulations cannot bind that office’s interpretation of the Virginia Human Rights Act. Consistency between the Department and the Office of the Attorney General is essential to ensuring employers are not exposed to liability for good-faith compliance efforts.

Clarification of potential contradictions within Chapters 1128 and 1129 and as they relate to the Virginia Human Rights Act is essential for employers to implement paid sick leave requirements across the Commonwealth, and we respectfully urge the Department to acknowledge these statutory deficiencies in its rulemaking to better direct legislative attention to the issues presented here.

3. Ensuring Constitutionality of Investigative Entry and Warrantless Searches

§ 40.1-33.6:7(C) authorizes the Commissioner of the Department of Labor and Industry to initiate investigations into alleged violations of the statute. Under subsection (C), the Commissioner or a designee is afforded authority to enter an employer’s premises and is granted subpoena authority. Subsection (C) does not include an explicit warrant requirement, nor does it afford an employer the right to refuse a warrantless search. The Supreme Court of the United States has long held that general commercial employers are entitled to the due process protections of the Fourth Amendment to the Constitution of the United States (Marshall v. Barlow’s Inc., 436 U.S. 307 (1978)), excepted in narrow circumstances for “closely regulated” industries (New York v. Burger, 482 U.S. 691 (1987)). Because Chapters 1128 and 1129 apply broadly to employers across the Commonwealth, the “closely regulated” exception does not apply and regulatory clarity is necessary for employers and the Department alike. As such, we respectfully urge the Department to adopt regulations which:

• Require that premises entry for investigative purposes proceed with the consent of the employer or, in the absence of consent, proceed through the statute’s subpoena mechanism or through the process outlined in § 40.1-49.9 of the Code of Virginia;
• Specify procedures for employers to object to or seek review of a demand for entry or records before compliance is required; and
• Clarify that “records” subject to review are limited in scope to those reasonably related to the alleged violation under investigation and that § 40.1-33.6:7(C) does not authorize open-ended access to all employer “records.”

The Virginia Chamber of Commerce thanks the Department for its thoughtful consideration of this comment and the issues raised, and we look forward to continued engagement and active participation with the Department as paid sick leave regulations are developed.