1. A. Employers may apply to the Commission for approval to meet their obligations under this chapter through a private plan that provides paid family and medical leave benefits equal to or greater than the benefits provided under this chapter. The Commission may approve such private plan if the Commission determines that such private plan:

   1. 1. Confers all of the same rights, protections, and benefits provided to covered individuals under this chapter, including:

      1. a. The provision of family and medical leave benefits for all purposes specified in subsection A of § 60.2-802;
      2. b. The provision of family and medical leave benefits for the maximum number of weeks required in § 60.2-803 per benefit year;
      3. c. The provision of family and medical leave benefits as specified in subdivision A 3 § 60.2-802 for a covered individual with a serious health condition;
      4. d. A wage replacement rate for all family and medical leave benefits that equals or exceeds the rate required by subsection A of § 60.2-804;
      5. e. A maximum weekly family and medical leave benefit amount that equals or exceeds the amount specified in subsection D of § 60.2-804 and a minimum weekly family and medical leave benefit amount that equals or exceeds the amount specified in subsection C of § 60.2-804;
      6. f. The provision of family and medical leave benefits on an intermittent basis as specified in § 60.2-807;
      7. g. No additional conditions or restrictions on family and medical leave benefits, or leave taken in accordance with such benefits, beyond those explicitly authorized by this chapter or regulations issued pursuant to this chapter;
      8. h. The provision of family and medical leave benefits to any employee covered under such private plan who would otherwise be eligible for such benefits pursuant to this chapter; and
      9. i. An employee contribution amount that does not exceed the amount such employee would otherwise contribute for family and medical leave benefits pursuant to § 60.2-806.

   2. 2. Complies with the following provisions:

      1. a. Such private plan shall provide family and medical leave benefits for all eligible employees throughout the course of their employment;
      2. b. If such private plan is in the form of self-insurance, the employer shall provide documentation to demonstrate sufficient financial capacity to meet all current and anticipated claim obligations under the program in a form, amount, and manner determined by the Commission; and
      3. c. If such plan is in the form of a third-party provider of insurance, the forms of the policy must be issued by an insurer and approved by the Commission.
2. B. Employers with an approved private plan shall reapply to the Commission for approval to meet their obligations under this chapter every two years. At the time of certification and recertification, employers shall disclose any changes in the family and medical leave benefits provided through the private plan and shall pay a fee, to be determined by the Commissioner, which shall be deposited into the Fund.

3. C. The Commission shall withdraw approval for an employer's private plan pursuant to subsection A if such employer violates the terms or conditions of such private plan, including by:

   1. a. Failing to pay benefits;
   2. b. Failing to pay benefits timely and in a manner consistent with the provisions of this chapter;
   3. c. Misusing private plan money;
   4. d. Failing to submit reports or comply with other requirements or terms set by the Commission; or
   5. e. Failing to comply with this chapter or regulations promulgated pursuant to this chapter.
4. D. An employee covered by a private plan approved under this section shall retain all applicable rights provided in § 60.2-808 and 60.2-809.
5. E. A contested determination or denial of family and medical leave insurance benefits by a private plan is subject to appeal before the Commission and any court of competent jurisdiction pursuant to § 60.2-812.
6. F. The Commission shall establish a fine structure for employers and entities offering private plans that violate this section. The Commission shall transfer any fines collected pursuant to this subsection to the state treasurer for deposit into the Fund. The Commission shall establish a process for the determination, assessment, and appeal of fines under this subsection.
7. G. The Commission shall annually determine the total amount expended by the Commission for costs arising from the administration of private plans. Each employer offering a private plan pursuant to this section shall reimburse the Commission for the costs arising out of the private plans in the amount, form, and manner determined by the Commission.
8. H. The Commission, in consultation with the State Corporation Commission, may establish rules, processes for data sharing, and a memorandum of understanding related to their respective roles in implementing the approval of coverage pursuant to this section, authorizing products, and requiring filings related to private family leave insurance, paid family and medical leave, group disability, and individual or group accident and sickness policies.
9. I. No employer shall be deemed to have fulfilled its obligations under the paid family and medical leave insurance program through a private family leave insurance policy issued pursuant to § 38.2-107.2 unless the Commission determines that such policy, in combination with a temporary disability insurance policy issued to such employer, meets the minimum requirements necessary for approval pursuant to this section.
10. J. Nothing in this section shall preclude an employer from providing benefits in addition to paid family and medical leave benefits as provided in this chapter.

2026, cc. 981, 1093.