Unpaid Leave Laws in the U.S.
In one line
There is no single federal "unpaid leave law" in the United States. Federal law protects your job, not your wages; whether the money keeps coming depends on state law and company policy. The gap between one state and another is wider than the gap between federal and state law.
Three things that are not the same
"Unpaid leave" in ordinary conversation collapses three separate sets of rules. Mixing them together produces conclusions that are simply wrong.
| Concept | What it answers | Who sets it |
|---|---|---|
| Unpaid Leave / Leave Without Pay (LWOP) | I stop working and stop being paid, but I am still employed here | Mostly company policy |
| Job-Protected Leave | While I am out, the company cannot fire me, and must reinstate me when I return | Federal FMLA + state law |
| Paid Family and Medical Leave (PFML) | While I am out, who pays me | State insurance programs (there is no federal one) |
All three can apply at once, or only one can. Someone at a small company in Texas who asks for unpaid leave may qualify for none of them — the company grants it if it wants to, and can end the employment if it does not.
Federal law
FMLA: the core statute, with a high bar
The Family and Medical Leave Act (1993) is the only generally applicable federal leave statute. What it provides is unpaid, job-protected leave.
| Item | Rule |
|---|---|
| Covered employers | Private employers with 50 or more employees within a 75-mile radius (in 20 or more workweeks); public agencies and public schools are covered regardless of size |
| Employee eligibility | 12 months of employment with that employer, and 1,250 hours actually worked in the preceding 12 months |
| Duration | Up to 12 weeks per 12-month period; 26 weeks to care for a covered servicemember (single 12-month period) |
| Paid? | No. The employer may require or permit the employee to substitute accrued paid leave |
| Health insurance | The employer must maintain group health coverage on the same terms as if the employee were working; the employee still pays their usual share |
| Reinstatement | Return to the same job, or one substantially equivalent in pay, benefits and working conditions |
Qualifying reasons: the employee's own serious health condition; caring for a spouse, child or parent with a serious health condition; bonding after birth, adoption or foster placement; certain qualifying exigencies arising from a family member's military service.
What FMLA does not do
- It does not guarantee pay. FMLA never requires an employer to pay anything.
- It does not reach small employers. The 50-employee threshold excludes a large share of U.S. employers.
- It does not cover new hires. Under 12 months or under 1,250 hours means no entitlement.
- It does not cover "personal reasons." Taking a year off, going home to be with family, going back to school — none of these are FMLA reasons.
- It does not protect the specific position. The employer may return you to a "substantially equivalent" job, not necessarily the same one.
Other federal statutes
| Statute | What it provides | Threshold |
|---|---|---|
| ADA (Americans with Disabilities Act) | Unpaid leave can be a reasonable accommodation, and may run longer than FMLA's 12 weeks | 15 or more employees |
| PWFA (Pregnant Workers Fairness Act, effective 2023) | Reasonable accommodation, including unpaid leave, for pregnancy, childbirth and related conditions | 15 or more employees |
| USERRA | Job protection and reemployment rights during military service, up to five cumulative years | No employer size threshold |
| Title VII / PDA | Prohibits discrimination in leave policy on the basis of sex, pregnancy and other protected traits | 15 or more employees |
| Jury System Improvements Act (28 U.S.C. §1875) | Prohibits discharging or threatening an employee for serving on a federal jury | All employers |
| FLSA | Does not regulate leave, but determines whether docking an exempt employee's pay destroys the exemption | All employers |
One change to PWFA
On May 21, 2025, the U.S. District Court for the Western District of Louisiana, in State of Louisiana v. EEOC, vacated the portion of the EEOC's implementing rule requiring accommodation for elective abortion, with nationwide effect. Situations arising from treatment of a pregnancy-related medical condition are not affected by that ruling. The PWFA statute itself remains in force.
The pay-docking trap for exempt employees
When a salaried exempt employee takes unpaid leave, the FLSA salary basis rule comes into play:
- A full day of absence for personal reasons may be deducted without affecting exempt status.
- Deductions for less than a full day generally destroy the exemption, reclassifying the employee as non-exempt and triggering back overtime.
- The one clearly permitted hourly deduction is intermittent FMLA leave.
This is why many companies would rather put an exempt employee on unpaid leave for a full week or a full day than dock them by the hour.
What federal law leaves alone
There is no generally applicable federal paid-leave requirement — no paid sick leave, no paid parental leave, no paid vacation. The only federal paid-leave mandate is Executive Order 13706, which covers federal contractors. Whether a private employer offers paid leave is a matter of state law, local ordinance and company policy.
State law
States with a mandatory paid family and medical leave (PFML) program
These states fund an insurance pool through payroll contributions. During leave the state fund (or a state-approved private plan) pays a portion of wages, rather than the employer paying salary. Most of these programs carry job protection as well.
| State / District | Benefits began | Maximum duration | Notes |
|---|---|---|---|
| California | 2004 | SDI (own illness or injury) up to 52 weeks; PFL (family care) 8 weeks | Job protection comes separately, from CFRA |
| New Jersey | 2009 | TDI 26 weeks; FLI 12 weeks | Job protection comes separately, from the NJ FLA |
| Rhode Island | 2014 | TDI 30 weeks; TCI 8 weeks (from 2026) | TDI and TCI combined cannot exceed 30 weeks in 52 |
| New York | 2018 | PFL 12 weeks | The program itself includes job protection and health-coverage continuation |
| District of Columbia | 2020 | 12 weeks | |
| Washington | 2020 | Generally 12 weeks, up to 16–18 combined | Job restoration applies to employers with 25+ employees from 2026 |
| Massachusetts | 2021 | Medical 20 weeks, family 12 weeks, up to 26 combined | |
| Connecticut | 2022 | 12 weeks (plus 2 for pregnancy-related incapacity) | |
| Oregon | 2023 | 12 weeks (plus 2 for pregnancy-related reasons) | Job protection requires 90 days of employment |
| Colorado | 2024 | 12 weeks (plus 4 for pregnancy complications) | From 2026, up to 12 additional weeks for neonatal intensive care (NICU) |
| Delaware | 2026-01-01 | 12 weeks | Employers may not require employees to exhaust PTO first |
| Minnesota | 2026-01-01 | Medical 12 weeks, family 12 weeks, up to 20 combined | Job protection requires 90 days of employment; employers pay at least half the premium |
| Maine | 2026-05-01 | 12 weeks | Job protection requires 120 consecutive days of employment |
| Maryland | 2028-01-03 (contributions from 2027-01-01) | 12–24 weeks | Delayed twice already |
| Virginia | 2028-12-01 (contributions from 2028-04-01) | 12 weeks | Signed April 22, 2026; first in the South |
New Hampshire (from 2023) and Vermont (from 2023) additionally run voluntary state programs underwritten by private insurers, which employers may opt into but are not required to.
States with their own unpaid job-protected leave law
These are the "state FMLAs." Thresholds are usually lower than the federal one and qualifying reasons are usually broader. A company under 50 employees that falls outside federal FMLA may still be bound by these.
| State / District | Law | Employer threshold | Duration | Worth noting |
|---|---|---|---|---|
| California | CFRA | 5 or more | 12 weeks / 12 months | Family definition far broader than federal, covering grandparents, grandchildren, siblings and one "designated person"; Pregnancy Disability Leave (up to 4 months) stacks on top of CFRA |
| Connecticut | CT FMLA | 1 or more | 12 weeks / 12 months (plus 2 for pregnancy incapacity) | Eligible after 3 months of employment |
| New Jersey | NJ FLA | 30 → 15 (from 2026-07-17) | 12 weeks / 24 months | Covers family care only; the employee's own illness goes through TDI. From 2026-07-17 eligibility drops to 3 months and 250 hours |
| Oregon | OFLA | 25 or more | 12 weeks | Since 2024-07-01, divided with Paid Leave Oregon; OFLA now mainly covers sick-child care, bereavement and pregnancy disability |
| Washington | Job restoration duty | 25 employees in 2026; 15 in 2027; 8 in 2028 | Tracks PFML | Steps down each year, eventually reaching 8-employee businesses |
| District of Columbia | DC FMLA | 20 or more | Family 16 weeks + medical 16 weeks / 24 months | More than double the federal duration |
| Vermont | VT PFLA | 10 for parental, bereavement, safe and exigency leave; 15 for family leave | 12 weeks / 12 months, plus 24 hours of short-term leave per year | Reasons expanded from 2025-07-01; employers may not force employees to use PTO first |
| Maine | ME Family Medical Leave | 15 or more at one location | 10 weeks / 2 years | Runs alongside the PFML program |
| Rhode Island | Parental and Family Medical Leave Act | 50 private, 30 public | 13 weeks / 2 calendar years | |
| Massachusetts | Parental Leave Act (MPLA) | 6 or more | 8 weeks | Separate from and in addition to PFML |
| Minnesota | MN Paid Leave | Nearly all employers | See table above | Job protection requires 90 days of employment |
| Colorado | FAMLI | All employers | See table above | Job protection requires 180 days of employment |
| Hawaii | HI Family Leave Law | 100 or more | 4 weeks / year | Mandatory TDI applies separately |
| Wisconsin | WI FMLA | 50 or more | Parental 6 weeks + own condition 2 weeks + family member 2 weeks | Counted separately; they cannot be combined into a single 10-week block |
| Tennessee | Maternity Leave Act | 100 or more at one location | 4 months | Limited to pregnancy, childbirth, adoption and nursing |
Remaining states have no family or medical leave statute of their own and rely on federal FMLA; below the FMLA threshold, everything falls back on company policy.
States also have a range of short special-purpose leaves
These usually run from a few hours to a few days, are generally unpaid (occasionally paid), carry job protection, and many states impose no employer size threshold:
- Jury duty leave: nearly every state prohibits discharge for jury service.
- Voting leave: roughly thirty states require time off to vote, some of it paid.
- Military family leave: more than twenty states provide leave for spouses or parents of servicemembers during deployment or leave.
- School activity leave: California, Illinois, Minnesota, Nevada and others let parents attend children's school activities.
- Domestic violence / sexual assault safe leave: California, New York, Illinois, Vermont and others provide time for medical care, court appearances and relocation.
- Organ and bone marrow donation leave: California, New York and others require leave, sometimes paid.
- Bereavement leave: California (5 days since 2023), Illinois, Oregon and Vermont have legislated; most states still have no mandate.
- Paid sick leave ordinances: roughly twenty states and dozens of cities have laws. These can cover short absences, but they accrue by the hour and are not a substitute for extended unpaid leave.
What actually happens during unpaid leave
Beyond the statutory text, these are the things that affect daily life.
| Item | Usual outcome |
|---|---|
| Wages and paystubs | Stopped. No paystub is generated for the period, and no income for it appears on the W-2 |
| Health insurance | Must be maintained during FMLA leave; outside FMLA it is up to company policy, commonly the employee pays the full premium or moves to COBRA |
| Benefit accrual | Paid time off and sick leave accrual typically pause; 401(k) deferrals and match stop because there are no wages |
| Length of service | Generally continues to accrue, but policies differ by company |
| Unemployment benefits | Generally not available. Voluntary unpaid leave is usually treated as still employed, not unemployed |
| Social Security and Medicare credits | No contributions are recorded for the period, so no quarters of coverage accrue |
Extra care where a work visa is involved
For someone on H1B, unpaid leave is not purely an HR question.
Under DOL regulations (20 CFR 655.731(c)(7)), when an H1B employee is in nonproductive status for a reason on the employer's side — no work assigned, waiting on a license, waiting on a project — the employer must still pay the full required wage listed on the LCA. This is the rule commonly referred to as the prohibition on "benching."
There is only one situation in which the employer need not pay: the non-productive period is at the employee's voluntary request and for the employee's own convenience (personal travel, caring for a relative), or the employee is genuinely unable to work (maternity leave, incapacitating injury), and the period is not one that the employer's benefit plan or a statute such as FMLA or the ADA would require to be paid.
Risk runs both ways
- For the employee: voluntarily requested unpaid leave falls into the exception, and the employer may lawfully stop paying. No paystubs are generated for that period, so confirm with the employer in advance whether documentation can be produced later for an H1B transfer, a green card filing or a visa renewal.
- For the employer: if the real reason is that the company has no work to assign, but it is packaged as "the employee requested unpaid leave," a DOL investigation will treat it as benching, requiring full back wages and potentially penalties.
The same logic applies to other employment-based statuses (O-1, E-3, L-1 and others). F-1 OPT and STEM OPT follow a different set of rules — what matters there is the cap on days of unemployment rather than wages, and whether unpaid leave still counts as "employment" has to be assessed separately.
Common misconceptions
Unpaid leave is my right; the company has to approve it.
No. Only a request that meets FMLA or the applicable state law is a right. Everything else is company policy, and the company may decline.
FMLA means I get paid.
No. FMLA is unpaid throughout. The money comes from a state PFML program, an employer's short-term disability plan, or your own accrued paid leave.
The company is in California, so California law applies — even though I am in Texas.
Generally the law of the state where the employee actually works applies, not the state of incorporation. Remote workers are protected by the law of the state they work in, and from 2026 New Jersey, among others, expressly reaches out-of-state employers with even a single remote worker in the state.
Where federal and state law conflict, federal law controls.
Not in this area. Leave law applies whichever is more favorable to the employee. Federal FMLA is a floor, not a ceiling, and employers must satisfy both sets of requirements.
How to use this page
This is a starting point for research, not legal advice. The numbers and thresholds change every year — in 2026 alone, PFML programs went live in Minnesota, Delaware and Maine, Washington lowered its job-restoration threshold, and New Jersey dropped its employer threshold from 30 to 15.
When an actual decision is at stake, check these three sources:
- Federal FMLA: DOL Wage and Hour Division
- The Department of Labor or workforce agency website for the state where you work
- Your own company's employee handbook and leave policy