Leave of Absence: What It Means for Employers

What it means in practice

In HR, "leave of absence" is the umbrella term for extended, approved time away from work that does not end the employment relationship. Every leave raises the same questions: is the job protected by law, is the time paid, what happens to benefits, and what position does the employee return to? The answers depend on the reason for the leave and which laws cover the employer.

Job-protected versus discretionary leave. A job-protected leave is one a statute requires the employer to grant and to hold the job, or an equivalent one, for. Federal examples are the Family and Medical Leave Act, leave as a reasonable accommodation under the Americans with Disabilities Act, military service under USERRA and federal jury service. A discretionary leave is one the employer chooses to offer, such as an unpaid personal leave or a sabbatical. The Department of Labor says the FLSA does not require payment for time not worked, such as personal leave, and treats these benefits as a matter of agreement. Discretionary leave terms, including whether the job is held open, come from the employer's written policy, often in the employee handbook, unless the absence also qualifies under a law.

FMLA leave. The Family and Medical Leave Act (FMLA) is the main federal job-protected leave. Besides private employers with 50 or more employees, it covers public agencies and schools regardless of size (29 CFR 825.104). An eligible employee has 12 months of employment, 1,250 hours of service in the prior 12 months and 50 or more co-workers within 75 miles (29 CFR 825.110). Qualifying reasons include the employee's own serious health condition (see medical leave of absence), caring for a family member, bonding with a new child (see parental leave and maternity leave) and certain military family needs.

Leave under the ADA. The EEOC's 2016 resource on employer-provided leave says employers with 15 or more employees must provide reasonable accommodations, which can include leave for a disability even where the employer does not offer leave to other employees. The EEOC says leave as an accommodation includes the right to return to the original position unless holding it open would cause undue hardship. The FMLA regulations say the two laws are "wholly distinct" and that an employer must provide leave under whichever gives the employee greater rights (29 CFR 825.702). For leave for an employee's own disability, see disability leave.

Military leave. USERRA applies to all public and private employers in the United States, even one with a single employee (20 CFR 1002.34). During service the employee is deemed on furlough or leave of absence, and calling the employee "terminated" does not change that (20 CFR 1002.149). After advance notice, which may be verbal (20 CFR 1002.85), the employee keeps reemployment rights for up to five cumulative years of service, with exceptions such as required National Guard and Reserve training (20 CFR 1002.99 and 1002.103). USERRA does not require pay during service, though an employer may choose to pay (20 CFR 1002.7). Details are on our military leave from work page.

Jury duty. The Department of Labor's jury duty page says the FLSA does not require pay for jury service, though some state laws do. For federal juries, 28 U.S.C. 1875 bars an employer from discharging, threatening to discharge, intimidating or coercing a permanent employee because of jury service. A violating employer is liable for lost wages and benefits, may be ordered to reinstate the employee and faces a civil penalty of up to $5,000 per violation per employee. State court jury service is governed by state law.

Discretionary and paid time. Personal leaves and sabbatical leave are not required by federal law. Pay during any leave usually comes from the employer's paid time off (PTO), sick leave pay or vacation pay programs, or from a state insurance benefit. FMLA leave is generally unpaid, but the employee may choose, or the employer may require, that accrued paid leave run at the same time, and the employer must tell the employee about any procedural conditions for the pay (29 CFR 825.207). Under USERRA the rule is different: the employee may ask to use accrued vacation during service, but the employer may not require it (20 CFR 1002.153).

How a leave request works, step by step. (1) Recognize a possible legal leave. An employee asking for FMLA-qualifying leave for the first time need not mention the FMLA, though calling in "sick" alone is not enough notice (29 CFR 825.302 and 825.303). (2) Within five business days of the request, or of learning the leave may qualify, give the FMLA eligibility notice and the rights and responsibilities notice (29 CFR 825.300(b) and (c)). (3) Once the employer has enough information, give the designation notice within five business days (29 CFR 825.300(d)). (4) If the FMLA does not apply or is exhausted and the reason is medical, treat the request as a possible ADA accommodation and use the interactive process the EEOC describes. (5) Check state law, because a state leave may apply when the FMLA does not. (6) Settle pay and benefits: paid leave substitution, health coverage and premiums. (7) Plan the return, including any fitness-for-duty certification, which the FMLA allows only under a uniformly applied policy and only if the designation notice said it would be required (29 CFR 825.312).

Benefits during leave. During FMLA leave the employer must keep the employee's group health coverage on the same conditions as if the employee had worked continuously, including family coverage and plan changes that apply to everyone (29 CFR 825.209). If an employee does not return after unpaid FMLA leave for a reason other than a continuing serious health condition or circumstances beyond the employee's control, the employer may recover its share of health premiums, but not for any period covered by substituted paid leave; returning for at least 30 calendar days counts as returning (29 CFR 825.213). Under USERRA, an employee with employer health coverage may elect to continue it for up to 24 months (20 CFR 1002.164), and receives the non-seniority benefits the employer gives similarly situated employees on comparable leaves (20 CFR 1002.150). The EBSA COBRA FAQ says an employee who does not return after FMLA leave and loses coverage may qualify for COBRA.

Returning to work. After FMLA leave an employee is entitled to the same position or an equivalent one, even if the employee was replaced (29 CFR 825.214 and 825.215). The employee has no greater right than if continuously employed: if the job was eliminated in a layoff the employee would have been part of, restoration is not required (29 CFR 825.216). If the employee cannot perform an essential function at the end of FMLA leave, the FMLA gives no right to another position, but the ADA, state law or workers' compensation may. A returning service member is entitled to the "escalator" position, the job the employee would have reached with reasonable certainty had the service not happened (20 CFR 1002.191), and reemployment must be prompt, generally within two weeks of the application absent unusual circumstances (20 CFR 1002.181). After 31 to 180 days of service, the employee must apply for reemployment within 14 days; after more than 180 days, within 90 days (20 CFR 1002.115).

Exempt employees. For exempt employees, the salary basis rule permits deductions for full-day absences for personal reasons other than sickness or disability, and a proportionate deduction for unpaid FMLA leave. An employer may not deduct for absences caused by jury duty, attendance as a witness or temporary military leave, but may offset jury fees, witness fees or military pay received for that week (29 CFR 541.602(b)).

Example: an exempt employee's partial FMLA week. As a hypothetical, an exempt employee paid $1,200 for a normal 40-hour week takes 8 hours of unpaid FMLA leave. The regulation allows a proportionate deduction: 8 of 40 hours is 20 percent, so the employer may pay $960 for that week. The same 8-hour absence for personal reasons outside the FMLA could not be deducted, because only full-day personal absences may be.

Example: recovering health premiums. As a hypothetical, an employee takes 12 weeks of FMLA leave, the first 4 covered by substituted paid vacation, and the employer pays $150 a week toward the employee's health coverage. The employee then resigns without a qualifying reason. The employer may recover its premium share only for the 8 unpaid weeks, $1,200, and not for the 4 paid weeks. Any deduction from final wages must not violate federal or state wage payment law (29 CFR 825.213(d) and (f)).

Where states differ: California. States add leaves the federal law does not, and they reach smaller employers. These two are examples, not a complete list. The California Civil Rights Department's CFRA guide says the California Family Rights Act covers employers with 5 or more employees and employees with more than a year of service and 1,250 hours in the past year, for up to 12 weeks per year, with the same or comparable job on return and health coverage continued. Where CFRA and the FMLA both apply, the employee gets the more protective law. Separately, the Employment Development Department says Paid Family Leave pays benefits for up to 8 weeks in a 12-month period but "PFL provides benefit payments but not job protection." See California labor laws.

Where states differ: Washington. Washington's Paid Leave program says that starting January 1, 2026, job protection applies when the employer has 25 or more employees and the employee has worked there at least 180 calendar days, with no minimum hours. The employer must return the employee to the same job or a similar job with the same pay, benefits and working conditions, and from 2026 must maintain health benefits during Paid Leave. The employer may count job-protected FMLA leave against Paid Leave job protection if it notifies the employee in writing within 5 business days. The employer-size threshold falls to 15 in 2027 and 8 in 2028.

Recordkeeping. FMLA-covered employers must keep FMLA records for at least three years, including the dates of leave designated as FMLA leave, hours of partial-day leave, written notices, leave policies, premium payments and records of designation disputes. Leave designated as FMLA leave may not include state or employer-plan leave that is not also FMLA-covered. Certifications and medical histories must be kept as confidential medical records, separate from personnel files (29 CFR 825.500).

Questions employers ask. Is a leave of absence paid? Federal law does not require pay; pay comes from employer paid leave, substitution under the FMLA or a state benefit. Does an employer have to hold the job during a personal leave? No federal law requires it for purely discretionary leave, but if the absence also qualifies under the FMLA, ADA, USERRA or a state law, that law's protection applies. Can FMLA leave count against attendance points? No. The regulations bar counting FMLA leave under no-fault attendance policies or using it as a negative factor in discipline or promotion (29 CFR 825.220(c)). What happens when FMLA leave runs out? The FMLA obligations end, but the EEOC says more leave may still be a reasonable accommodation for a disability, though indefinite leave is an undue hardship.

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