Unpaid time off is when an employee takes time away from work and doesn’t get paid.
Can employers deny unpaid time off requests? In most cases, yes.
The main exception to this is if your unpaid leave request is covered by the federal Family and Medical Leave Act (FMLA). Only companies with 50 or more employees have to provide this. And the unpaid leave has to be for a new child, adopting a child, caring for a family member, or dealing with a health condition that impacts your ability to work.
There’s a lot of nuance but that’s the gist of it.
Some states have their own version of FMLA, like Wisconsin. And some states have paid sick leave laws. A few have even started enacting PTO laws like Nevada. So employees could be covered by a range of state laws.
But if a leave request isn’t covered by your state or the federal FMLA, your company can do whatever it wants. That includes denying an unpaid time off request.
FMLA Protections for Unpaid Leave
Federal law governing unpaid time off is managed by the Family and Medical Leave Act (FMLA). The FMLA requires employers with at least 50 employees to give employees up to 12 weeks of unpaid leave per year for the following reasons:
- Birthing a baby or caring for a baby up to their first birthday
- Adopting a child or caring for an adopted or foster child for up to one year after placement
- A covered family emergency or caring for a family member with a health condition
- A health condition the employee has that affects their ability to work
If an employee’s family member is a service member with a health condition, the employee may take up to 26 weeks of unpaid leave without repercussions under the FMLA.
To qualify for FMLA, the employee must have worked for the company for at least 12 months and worked at least 1,250 hours with their employer.
For any employee considering taking FMLA leave, the Employee’s Guide to the Family and Medical Leave Act is a great resource.
What About Protections at Companies with Less Than 50 Employees?
If your company has fewer than 50 employees, it does not fall under FMLA regulations. This means that employees are not entitled to unpaid time off.
There might still be a state requirement but the federal FMLA won’t apply.
For employers, that means you can do whatever you want.
For employees at small companies, you’re completely at the mercy of whoever sets the leave policies at your company. And there’s nothing you can do if your unpaid leave request gets rejected.
State Protections for Unpaid Leave
Most states don’t have any additional protections for unpaid leave.
The federal FMLA is the primary act covering unpaid leave. If that doesn’t cover you, you’re probably out of luck if you need additional leave. Most states have decided that the FMLA is good enough so there’s no reason to add more regulation on top of it.
But you may be covered by sick leave laws or PTO laws in your state. Many states do have sick leave laws. Look all of them up to know what’s available.
And as a company, you’ll want to know what you’re required to provide.
Here are a few examples of state laws regarding unpaid and paid time off:
- Pennsylvania: Pennsylvania does not require employers to pay or allow employees to take unpaid time off from work when they’re sick, celebrating a holiday, or taking a vacation. However, employers can create their own employee leave policies and must abide by their policies.
- New Jersey: New Jersey employees can earn up to 40 hours of paid sick time per year. However, there are only specific circumstances an employee can use their earned sick time.
- Illinois: Illinois requires employers to allow employees time off for jury duty without repercussion if the employee gives proper notice and verification. However, employers do not need to pay employees for jury duty leave.
That’s a brief sample, time off regulations vary WIDELY across states. Also, these laws change every year.
To understand what’s covered, search for these terms:
- [your state] fmla
- [your state] unpaid leave
- [your state] pto laws
- [your state] sick leave laws
That’ll dig up the core regulations that need to be followed. And tell you what your options are as an employee.
Can an Employer Deny Unpaid Time Off?
If your unpaid time off request is not protected by FMLA or a state law, your unpaid time off request can be denied.
Yes, that sucks.
You could submit a notice and simply not show up to that shift. But your job isn’t protected either. You might not have a job when you get back.
Is Unpaid Time Off an Option to Take Time Off When You Don’t Have PTO?
Maybe.
If you really need to take time off and don’t have enough PTO to do it, you can always ask your manager if you’re able to take the time off unpaid.
But you’re at their mercy in most cases. Since there aren’t many protections in place for unpaid time off, your request is subject to the whims of your manager.
That said, it is a reasonable request to make. You’re offering to forgo pay in order to get some of your time back.
How Unpaid Time Off Works Differently for Hourly and Salaried Workers
The irony of American working traditions is that the folks that need unpaid time off more often (hourly) are likely to face more hurdles getting it. And the folks that can get it approved more easily (salaried), don’t need to ask in the first place.
I’ll explain.
Salaried Unpaid Time Off Requests
Salaried roles get paid the same amount on every pay cycle, regardless of how much a person works. This creates some trade-offs. For some roles or during slow periods, they might work less than 40 hours per week. Or they might work a lot more (80 hour weeks and up).
The fuzziness in work hours means that salaried folks can usually squeeze in time for life stuff. Unless you have an extremely strict in-desk requirement, no one will notice if you duck out for a doctor’s appointment. And If you do need to be unavailable, you usually have a solid PTO policy to use. You don’t even have to worry about unpaid time, you have enough paid time off in the first place.
Even better, companies with a lot of salaried employees often have HR teams trying to do the right thing. So if something crazy happened and an employee did need a bunch of unpaid time off, you can usually work something out. But that’s extremely rare since 99% of stuff is easily covered with hour flexibility and the core benefits package.
Hourly Unpaid Time Off Requests
Every single hour is documented and part of a larger shift schedule. There’s nowhere to fudge hours in one week in order to make them up the next. So every hour becomes inflexible.
Even worse, the benefits package for hourly employees is often limited or nonexistent. Sick days are few, PTO is limited, and HR teams are typically very inflexible.
So hourly folks need more approvals for common life stuff but don’t have nearly as many options to take care of it. It sucks.
That’s why unpaid time off requests are much more common in hourly roles. The worst part is these folks are far more likely to have their requests denied too.
America’s Cultural Problem with Unpaid Time Off
For me, the biggest barrier to unpaid time off is America’s aversion to it. Most Americans don’t even consider unpaid time off to be a thing.
- In all the jobs I’ve had, I’ve never taken unpaid time off. Not once. The thought didn’t even cross my mind.
- In all the companies and teams I’ve managed, I’ve never even gotten a single FMLA request.
- Amongst my peer group, the pressure to NOT take available time off is common across a ton of companies. Even paid time off that’s already been earned.
- As a manager, my biggest struggle is encouraging people on my teams to take time off when it’s available.
It’s not just unpaid time off, America has a problem with vacation in general. Even when we have a strong PTO policy or clear regulations, many of us feel guilty about taking time off.
Those same folks get promoted. Then they become managers. Then they inadvertently or directly pressure everyone underneath them to not take vacation.
And unpaid time off requests become unthinkable.
It also doesn’t help that there the one core federal leave act (FMLA) is laughably weak:
- It only offers unpaid leave. There is no federally mandated paid leave law. The fact that we don’t have a federal sick leave law at this point is really sad.
- FMLA only applies to companies with 50 employees or above. That’s a solid-sized company. It should be much lower than that. I’d argue it should apply to companies of any size but I’d count lowering it to 25 employees as a win.
- Covered situations are limited. What about time off for mental health? What about caring for people in non-typical family structures?
- It isn’t available until you’ve worked for a full year. Horrible life events don’t conveniently wait until you’ve been in a job for 12 months. What if you get pregnant a few months after starting a job and your company doesn’t offer any PTO or parental leave? You could be required to go back to work immediately after giving birth. Getting the approval to take time off to give birth might even be an issue. Crazy.
Not only do we have an ingrained culture to not take time off, the few federal protections are barely protections.
How I Recommend Handling Unpaid Time Off
For companies, my main recommendation is to get solid PTO and standard leave policies in place. When these are done right, they’ll cover the vast majority of situations that come up for employees. Folks will feel like they can take time off when they need it.
Unpaid time off requests will then be extremely rare. To the point that you can handle them case-by-case.
That’s my primary goal when handling unpaid time off policies: get all the paid time off policies good enough so that folks don’t need to worry about taking unpaid time at all. They’re getting the time they need, and it’s paid.
Step 1: Have a Solid PTO Policy in Place
Your PTO policy is one of the most important parts of your business. I prefer to use an accrual system that gives 3 weeks of PTO per year. And I cap the hours at 120 hours to encourage people to keep using their PTO instead of endlessly banking it.
To keep things simple, I recommend lumping sick days, vacation days, and personal days into a single PTO bucket.
I’ve used this system across multiple companies and it works really smoothly.
You will occasionally have an employee struggle with it, they’ll keep drawing down PTO immediately and then won’t have any PTO to deal with emergencies. But those folks struggle to maturely handle any policy. For everyone else, it works great.
A few of the other mechanics:
- 100% of the accrued PTO hours carry over each year
- PTO starts accruing on the first day of employment
- All unused PTO gets paid out when an employee leaves the company for any reason
Whatever PTO policy you decide to adopt, make sure to check your state’s sick leave laws to make sure you’re doing enough.
Step 2: Define Jury Duty, Bereavement, and Parental Leave at Your Company
Even at companies with only 10-15 employees, jury duty, bereavement, and parental leave come up frequently. Other than sick leave, these are the main reasons that folks need to take time off unexpectedly.
If you put together policies for these situations, the need for unpaid leave will go way down.
At my companies, I like to provide paid leave for:
- 10 days for bereavement leave.
- A loose jury duty policy that covers whatever is required by the courts.
- 3 months of parental leave.
That’s way ahead of industry norms, mainly because industry norms in America are terrible. I believe these amounts are the bare minimum in order to do what’s right to support employees.
The other benefit of separating these policies out from your main sick leave and vacation policies is that it takes the pressure off PTO. If folks don’t need to use a bunch of sick time after a difficult birth, they have more time available for whatever comes up later on.
Step 3: Understand How FMLA Relates to Your Business
Finally, make sure you know how the FMLA impacts your company. This is a pretty serious area of employment law. Tons of companies get in trouble for not handling FMLA requests appropriately. Start with the FMLA guidebook for employers.
If you have questions about the FMLA, I strongly recommend talking to an employment attorney. Not only will you get actual legal guidance, you’ll have someone to reach out to in the event that there’s a complaint from an employee.
Even if your company isn’t required to comply with FMLA, it’s still a good roadmap for the type of unpaid leave policy you should consider implementing.
Great Resources for Unpaid Time Off
Start here if you’re trying to figure out all of your options for taking unpaid leave:
- Federal and Medical Leave Act: The official overview page on the FMLA.
- Employee’s Guide to the Family and Medical Leave Act: An official PDF from the Department of Labor that breaks down how the FMLA works from an employee’s perspective.
- Employer’s Guide to the Family and Medical Leave Act: The official PDF for employers, it breaks down all the requirements and nuance really well.
