Can You Take Unpaid Leave From Work? FMLA, USERRA, and State Laws

You can take unpaid leave from work with your job protected if your situation fits one of a handful of federal or state laws, chiefly the Family and Medical Leave Act, the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, and jury duty statutes. Outside those laws, unpaid leave depends entirely on what your employer chooses to allow.

The Default Rule When No Law Applies

Most jobs in the United States are “at will.” An employer can end the relationship for almost any reason that isn’t illegal discrimination or retaliation. If your reason for needing time off doesn’t fit a specific statute, and your employer hasn’t promised leave in a handbook or contract, taking unapproved days can cost you the job. That’s why identifying which protection covers your situation matters before you stop showing up.

Family and Medical Leave Act (FMLA)

The FMLA is the broadest federal unpaid leave law. Eligible employees get up to 12 workweeks of unpaid, job-protected leave in a 12-month period. Your group health coverage continues on the same terms as if you were still working, and when you come back, you’re entitled to your old job or an equivalent one with the same pay, benefits, and working conditions.¹

Who Qualifies

Two layers of eligibility apply. Your employer is covered if it has 50 or more employees during at least 20 workweeks in the current or previous year. Public agencies and public and private elementary and secondary schools are covered regardless of headcount.¹

You personally must also meet three tests: at least 12 months of employment with this employer, at least 1,250 hours worked in the 12 months before your leave starts, and a worksite where the employer has 50 or more employees within a 75-mile radius.¹ That last one catches people at big national companies who happen to work from small satellite offices.

Qualifying Reasons

FMLA leave is available for:²

The birth of your child and care for the newborn, or placement of a child with you for adoption or foster care.
Caring for your spouse, child, or parent with a serious health condition.
Your own serious health condition that keeps you from doing your job.
Certain needs arising from a spouse’s, child’s, or parent’s active-duty deployment or call to active duty.

A separate provision allows up to 26 workweeks in a 12-month period to care for a current servicemember or recent veteran with a serious injury or illness, if you are the spouse, child, parent, or next of kin. Military caregiver leave is the only FMLA entitlement that exceeds 12 weeks.

Taking Leave in Blocks or Bits

You don’t always have to take FMLA leave in one continuous stretch. When you or a family member has a serious health condition, you can take it intermittently, a few hours or days at a time, when there’s a medical need and that schedule fits it. The same flexibility applies to military caregiver leave. Intermittent leave can cover weekly therapy visits or unpredictable flare-ups of a chronic condition.³

For bonding with a healthy newborn or newly placed child, intermittent leave is available only if your employer agrees. No agreement is needed if the mother has a pregnancy-related health condition or the child has a serious health condition.³

One Exception for High Earners

If you’re a salaried employee among the highest-paid 10 percent of workers within 75 miles of your worksite, your employer can classify you as a “key employee.” That designation lets the employer deny reinstatement, though not the leave itself, if restoring you would cause substantial and grievous economic injury to operations.⁴ The employer must notify you of the status when you ask for leave and give you a chance to come back early if it plans to deny reinstatement. It’s rarely invoked, but senior executives should know it exists.

Unpaid Leave as a Disability Accommodation

The Americans with Disabilities Act creates a second route to unpaid leave, one that doesn’t turn on FMLA eligibility. Under the ADA, a period of unpaid leave can be a reasonable accommodation for an employee with a disability. That applies even if your employer is too small for FMLA to cover it, and even if you’ve already used your 12 FMLA weeks.⁵

The process runs through a back-and-forth conversation with your employer called the “interactive process.” You explain what you need, the employer weighs whether granting it would cause undue hardship (significant difficulty or expense), and you look for a workable solution together. Requesting more time than the employer’s standard policy allows, or more than 12 weeks, is not on its own enough to prove undue hardship.⁵

If an extension won’t work, the employer may need to consider moving you to a different vacant position you’re qualified for. Employers cannot enforce a rigid maximum-leave policy that automatically terminates anyone who exceeds a set number of days. Each situation is evaluated individually.⁵

Military Service Leave Under USERRA

USERRA protects employees who leave civilian jobs for military service, including active duty, training, and National Guard obligations. Unlike FMLA, it applies to virtually all employers regardless of size, and it covers cumulative absences of up to five years with a single employer.⁶

When you come back, USERRA guarantees not just your old job but the position you would have held had you never left, including any promotions or raises you likely would have received. It’s called the “escalator principle.” How quickly you must report back depends on how long you were gone:

1 to 30 days: return on the next regular workday after travel time and eight hours of rest.
31 to 180 days: request reemployment within 14 days.
More than 180 days: request reemployment within 90 days.

USERRA also blocks termination without cause for six months after service lasting 31 to 180 days, and for a full year after service exceeding 180 days.⁷

Jury Duty Leave

Federal law bars employers from firing, threatening, or retaliating against permanent employees for serving on a federal jury. When you’re reinstated, you keep your seniority and benefits as if you had been on a leave of absence. Employers that violate this face civil penalties of up to $5,000 per violation and can be ordered to reinstate the employee and pay lost wages.⁸

This federal protection covers federal jury service only. State and local jury duty is protected by state law, and many states go further, sometimes requiring paid time off. Your state’s labor agency can tell you what applies.

State Laws That Go Further

Many states, and some cities, have leave laws that reach beyond the FMLA. They matter most to workers who fall outside its coverage: employees at smaller employers, people who haven’t hit the 12-month or 1,250-hour thresholds, or those who need leave for reasons the FMLA doesn’t recognize.

State laws commonly cover employers with fewer than 50 employees, broaden “family member” to include domestic partners, grandparents, or siblings, and add qualifying reasons such as attending a child’s school event or dealing with domestic violence. Thirteen states and Washington, D.C., have also enacted paid family and medical leave programs, with several more set to begin paying benefits in 2026.⁹ Where a paid program exists, it may partially or fully replace wages during time you’d otherwise take as unpaid FMLA leave. Check your state’s department of labor.

Health Insurance and Pay While You’re Out

During FMLA leave, your employer must keep your group health insurance in force on the same terms as when you were working. That doesn’t mean paying for it entirely. If you normally contribute toward your premium, you still owe your share while on leave. If your payment runs more than 30 days late, the employer can drop coverage, but only after mailing a written warning at least 15 days before the cutoff.¹⁰

If your coverage lapses because you missed payments, the employer must still restore it when you return, without new waiting periods, pre-existing condition exclusions, or medical exams.¹⁰

If you don’t come back after your leave expires, your employer can recover the premiums it paid on your behalf during the unpaid portion. It cannot recover those costs if you couldn’t return because of a continuing or new serious health condition, or circumstances beyond your control.¹¹

FMLA leave is unpaid by default, but you can choose to use accrued paid vacation or sick time, and your employer can require you to burn through accrued paid leave before switching to unpaid status. Both clocks run together: a week of vacation used during FMLA leave counts as one of your 12 weeks, not a separate one.¹²

How to Request the Leave

For foreseeable leave (a planned surgery, an expected due date, a scheduled deployment), the FMLA requires at least 30 days’ advance notice. When the need is unforeseeable, give notice as soon as practicable.¹³ Put your request in writing. Include the reason, expected start date, and how long you expect to be out. You don’t have to name “FMLA” specifically; you just have to give the employer enough information to recognize that the reason may qualify.

Your employer can require a medical certification to verify a serious health condition. The Department of Labor publishes standard forms, WH-380-E for your own condition and WH-380-F for a family member’s. You typically have 15 calendar days to return the completed form. If the employer questions it, it can pay for a second opinion.

Employers have their own deadlines. Within five business days of your request, your employer must tell you whether you’re eligible. Once it has enough information to determine your reason qualifies, it has another five business days to formally designate the leave as FMLA-protected.¹⁴

Leave Your Employer Offers Voluntarily

When no federal or state law fits, unpaid leave is entirely at your employer’s discretion. Many companies offer some form of personal leave or sabbatical, and the terms are whatever the employer sets. There’s no legal minimum. If your employer offers discretionary leave, the details should be in the handbook: who’s eligible, how to apply, how long the leave can last, and whether your job is held open. Read carefully. A company that grants unpaid personal leave isn’t necessarily required to hold your role unless the handbook or a written agreement says so.

If Your Employer Refuses or Retaliates

Employers cannot retaliate against you for requesting or taking FMLA leave. They can’t fire you, demote you, cut your hours, or count FMLA absences under a no-fault attendance policy.¹⁵ You have two ways to enforce that.

You can file a complaint with the Department of Labor’s Wage and Hour Division. The process is free, confidential, and available regardless of immigration status. You’ll need your contact details, the employer’s name and location, and a description of what happened.¹⁶

You can also file a private lawsuit. The deadline is generally two years from the date of the violation, or three years if it was willful. A successful claim can recover back pay, lost benefits, reinstatement, and other damages.¹⁷ ADA violations go to the Equal Employment Opportunity Commission. USERRA violations can be filed with the Department of Labor’s Veterans’ Employment and Training Service.

1
eCFR. Part 825 The Family and Medical Leave Act of 1993
2
Office of the Law Revision Counsel. 29 USC Ch 28 – Family and Medical Leave
3
eCFR. Intermittent Leave or Reduced Leave Schedule
4
eCFR. 29 CFR 825.217 – Key Employee, General Rule
5
U.S. Equal Employment Opportunity Commission. Employer-Provided Leave and the Americans with Disabilities Act
6
Office of the Law Revision Counsel. 38 USC Ch 43 – Employment and Reemployment Rights
7
OSC.gov. Your USERRA Rights as an Employee
8
Office of the Law Revision Counsel. 28 US Code 1875 – Protection of Jurors Employment
9
NCSL. Snapshot Children and Families – State Policies on Paid Family Leave
10
eCFR. Employee Failure to Pay Health Plan Premium Payments
11
U.S. Department of Labor. Employer Recovery of Benefit Costs
12
eCFR. 29 CFR 825.207 Substitution of Paid Leave
13
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
14
eCFR. 29 CFR 825.300 – Employer Notice Requirements
15
eCFR. Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights
16
U.S. Department of Labor. Information You Need to File a Complaint
17
U.S. Department of Labor. Enforcement of the FMLA