What Is Unpaid Leave?
Learn what unpaid leave means (authorized time off without pay including FMLA, personal leave, medical leave), federal and state requirements, job protection rights, benefits continuation, and best practices for employers.
What Is Unpaid Leave?
Unpaid leave is authorized time away from work without pay, approved by the employer according to company policy or legal requirements. During unpaid leave, employees are absent from work, do not receive wages, but may retain certain benefits and job protections depending on the type of leave.
Unpaid leave differs from unpaid time off penalties for unauthorized absences. It is formally approved, documented leave for legitimate reasons such as medical conditions, family responsibilities, personal matters, or military service.
Quick Answer
Unpaid leave is approved time off without pay for reasons like serious illness (FMLA), personal matters, military service, or education. FMLA provides up to 12 weeks job-protected unpaid leave annually for qualifying conditions. Employers must continue health benefits during FMLA leave.
Types of Unpaid Leave
FMLA Leave (Family and Medical Leave Act)
What it covers: Birth, adoption, or foster placement of a child; care for employee’s serious health condition; care for spouse, child, or parent with serious health condition; military family leave.
Duration: Up to 12 weeks per year (26 weeks for military caregiver)
Job protection: Must restore employee to same or equivalent position
Eligibility: Employees at covered employers (50+ employees within 75 miles) who worked 1,250 hours in past 12 months and have been employed 12+ months
Benefits: Employer must continue group health insurance
Personal Leave of Absence
What it covers: Personal reasons not covered by FMLA (e.g., extended travel, family matters not qualifying under FMLA, personal projects)
Duration: Varies by employer policy (typically 30 days to 6 months)
Job protection: Not federally protected; depends on employer policy and state law
Eligibility: Set by employer (often requires tenure, manager approval)
Benefits: Typically suspended unless employer policy specifies otherwise
Medical Leave (Non-FMLA)
What it covers: Medical conditions not qualifying for FMLA or exceeding FMLA duration
Duration: Varies; may require medical certification
Job protection: ADA requires reasonable accommodation (may include extended leave); some states provide additional protections
Considerations: May qualify as ADA reasonable accommodation if employee has disability
Military Leave
What it covers: Active duty, training, or other qualifying military service
Duration: Cumulative 5 years under USERRA
Job protection: Strong protections under Uniformed Services Employment and Reemployment Rights Act (USERRA)
Eligibility: Employees called to military service
Benefits: Employer may continue benefits; employee can elect continued coverage up to 24 months
Other Types
Jury duty / Court leave: Required by federal and state laws; no retaliation permitted
Bereavement leave: Typically 3-5 days; some states require; others at employer discretion
Educational / Sabbatical leave: Varies (weeks to months); often for longer-tenure employees; usually unpaid
Legal Requirements for Unpaid Leave
Federal Requirements
FMLA: 12 weeks unpaid leave for qualifying reasons; job protection; health benefits continuation
USERRA: Military leave protections; reemployment rights; benefits continuation
ADA: Reasonable accommodation may include unpaid leave for disabilities
Federal jury duty: Cannot terminate employees for federal jury service
State-Specific Laws
Many states extend beyond federal minimums:
California: Pregnancy Disability Leave (PDL) up to 4 months; California Family Rights Act (CFRA) 12 weeks
New York: Paid Family Leave 12 weeks (not unpaid); additional protections for bone marrow/organ donors
Massachusetts: Small Necessities Leave Act 24 hours/year for school activities; Parental Leave Act 8 weeks (6+ employees)
Washington: Paid Family and Medical Leave 12-16 weeks; Washington Family Leave Act unpaid protections
Check your state labor department for specific requirements.
Unpaid Leave Rights and Protections
Job Protection
FMLA-protected leave: Employer must restore employee to same position or equivalent position with equivalent pay, benefits, and working conditions
USERRA (military): Strong reemployment rights; escalator principle applies (employee returns to position they would have attained if continuously employed)
ADA accommodation: Extended leave as reasonable accommodation protects against termination due to disability-related absence
Non-protected leave: Employer not required to hold position during non-protected personal leave unless policy or contract specifies
Benefits Continuation
Health insurance during FMLA: Employer must continue group health coverage on same terms as if employee continued working. Employee pays usual employee share of premium.
Other benefits during FMLA: Employer not required to continue other benefits (life insurance, disability, retirement contributions) but may do so per policy
COBRA eligibility: If employment ends or hours reduce below benefit eligibility during unpaid leave, COBRA continuation coverage may be available
Protection from Retaliation
Cannot terminate for taking protected leave: FMLA, USERRA, ADA, jury duty leave are protected from retaliation
Cannot discourage: Employers cannot discourage employees from taking protected leave or retaliate after return
Burden of proof: If termination occurs soon after return from protected leave, employee may have retaliation claim
Best Practices for Managing Unpaid Leave
Policy Development
Comprehensive policy: Document all types of unpaid leave offered (FMLA, personal, medical, military, bereavement)
Clear eligibility: Specify tenure, hours, and other requirements for each leave type
Request procedures: Define how employees request leave, required notice, and documentation
Benefits during leave: Clarify which benefits continue, employee premium responsibilities
Return to work: Explain reinstatement process, fitness-for-duty requirements if any
Communication and Training
Manager training: Train supervisors on FMLA rights, request procedures, and retaliation prohibitions
Employee awareness: Ensure employees know their rights and how to request leave
Eligibility notices: Provide FMLA eligibility and rights/responsibilities notices when leave is requested
Written documentation: Use standardized forms for requests, approvals, certifications
Administration
Centralized tracking: Use HR system to track FMLA entitlement, intermittent leave usage
Medical certification: Obtain proper certification; request recertification as allowed
Benefits coordination: Ensure payroll and benefits staff understand premium payments during leave
Intermittent leave: Track intermittent FMLA carefully; may be used in increments as small as one hour
Coverage Planning
Cross-training: Prepare multiple employees to cover critical functions using employee empowerment principles
Temporary staffing: Use temps or contract-to-hire workers for extended leaves
Workload redistribution: Assign tasks to other team members through fair employee roster planning; offer voluntary overtime if needed
Project planning: Account for potential absences when planning timelines
Returning from Unpaid Leave
Reinstatement Rights
FMLA: Employee entitled to same position or equivalent position with equivalent pay, benefits, seniority, and other terms
USERRA (military): Reemployment in position employee would have attained with continuous service (escalator principle)
ADA: Reasonable accommodation principles apply; interactive process to determine appropriate return
Personal leave (non-protected): No legal requirement to reinstate unless company policy or state law provides protection
Fitness-for-Duty Certification
When permitted: Employers may require fitness-for-duty certification to return from FMLA leave if employer has uniformly-applied policy requiring certification after similar leaves and certification relates only to the serious health condition that caused the leave.
Limitations: Cannot delay reinstatement beyond certification time; cannot require more information than reasonably necessary
Not permitted for intermittent leave: Cannot require for intermittent FMLA leave
Frequently Asked Questions
What is unpaid leave?
Unpaid leave is authorized time away from work without pay, approved by the employer. Common types include FMLA (Family and Medical Leave Act) leave, personal leave, medical leave, military leave, and educational leave. Some unpaid leave is job-protected by law; other types depend on employer policy.
How much unpaid leave can you take under FMLA?
FMLA provides up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons (birth/adoption, serious health condition, military family leave). Employees must work for covered employers (50+ employees) and meet eligibility requirements (1,250 hours in past year, 12 months tenure). Military caregiver leave allows up to 26 weeks.
Do you have to pay benefits during unpaid leave?
Under FMLA, employers must continue group health insurance on the same terms during unpaid leave. Employees typically pay their usual premium share. Other benefits (life insurance, disability, retirement contributions) are not required to continue under FMLA but depend on company policy and plan terms.
Can you be fired while on unpaid leave?
Job-protected unpaid leave (FMLA, ADA, USERRA) prevents termination due to the absence. Employers must return employees to the same or equivalent position. However, employees can be terminated for legitimate reasons unrelated to the leave (e.g., layoffs affecting their position, performance issues unrelated to leave).
How is unpaid leave different from paid leave?
Unpaid leave provides approved time off without wages. Paid leave (sick leave, vacation, PTO) provides time off with regular wages. Some employees use accrued paid leave to cover unpaid FMLA leave. Several states now offer paid family leave programs providing wage replacement during qualifying leaves.
Do you accrue PTO during unpaid leave?
Federal law does not require PTO accrual during unpaid FMLA leave. Whether employees accrue vacation, sick leave, or other benefits during unpaid leave depends on employer policy. Many employers suspend accruals during extended unpaid leaves.
Can you work another job while on unpaid leave?
Generally, working another job during approved unpaid leave for your own serious health condition may be considered leave abuse. However, working elsewhere during FMLA leave to care for a family member may be permissible depending on circumstances. Employer policies may address outside employment during leave.
What happens if you don’t return from unpaid leave?
For FMLA leave, if employee does not return to work, employer may recover health insurance premiums paid during the leave (with exceptions for circumstances beyond employee’s control). Employee may be terminated for voluntary resignation. Non-FMLA leave terms depend on employer policy.
Sources
- U.S. Department of Labor – Family and Medical Leave Act (FMLA)
- U.S. Department of Labor – USERRA Military Leave
- U.S. Equal Employment Opportunity Commission – ADA and Leave
- Society for Human Resource Management – Leave Policies
