Unpaid Leave

Chapter 5: Section 4

Leave Without Pay

Leave without pay (LWOP) is a temporary non-paid status and absence from duty that, in most cases, is granted at the employee’s request. It may be granted whether or not the employee has annual or sick leave to his or her credit. In most instances, granting LWOP is a matter of supervisory discretion and may be limited by agency internal policy. Employees, however, have an entitlement to LWOP in the following situations:

• The Family and Medical Leave Act of 1993 provides covered employees with an entitlement to a total of up to 12 weeks of unpaid leave during any 12-month period for certain family and medical needs. (See below and 5 CFR 630 subpart L.) 

• The Uniformed Services Employment and Re-employment Rights Act of 1994 provides employees with an entitlement to LWOP when employment is interrupted by a period of service in the uniformed service. (See Military Leave in Section 1 of this chapter and 5 CFR 353.106.) 

• Executive Order 5396 of 1930 provides that disabled veterans are entitled to LWOP for necessary medical treatment. 

Other uses for which LWOP may be approved include: for academic courses or training that would be of benefit to the agency; personal reasons for which other types of leave are not available; or protection of employee status and benefit eligibility pending action on claims for disability retirement or injury compensation. 

LWOP affects certain benefits, as described below (note: special rules apply to an employee who is granted LWOP to serve as a full-time officer or employee of certain employee organizations or who is temporarily assigned to a state or local government or to an institution of higher learning). Also see fact sheets at www.opm.gov/policy-data-oversight/pay-leave-administration.

Service Crediting—Except for absence due to military service or because of compensable injury, an employee who has been on leave without pay for six months or less during any calendar year is given service credit for that period and the service computation date is not affected. No credit for government service will be given for any portion of LWOP in excess of six months during the same calendar year.

Note: Employees with full-time appointments who are receiving benefits from the Office of Workers’ Compensation Benefits and who work part of the day and are on approved LWOP for part of the day are given full-time credit. This policy does not apply to those not under full-time appointments or to re-employed annuitants.  

The first 30 calendar days of each non-pay period is creditable service for career tenure. A total of 22 workdays in a non-pay status is creditable service toward completion of probation. Any non-pay status is creditable service toward time in grade requirements for promotion.

Within-Grade Increases—For General Schedule (GS) employees, a total of two workweeks in a non-pay status in a waiting period is creditable service for advancement to steps 2, 3, and 4; four workweeks for advancement to steps 5, 6, and 7; and six workweeks for advancement to steps 8, 9, and 10 (see 5 CFR 531.406(b)). For Federal Wage System employees (WG, WL, and WS schedules), a total of one workweek in a non-pay status is creditable service for advancement to step 2, three workweeks for advancement to step 3, and four workweeks for advancement to steps 4 and 5 (see 5 CFR 532.417(b)). 

Retirement Benefits—A total of six months in a non-pay status in any calendar year is creditable service. Coverage continues at no cost to the employee. When employees are in a non-pay status for only a portion of a pay period, their contributions are adjusted in proportion to their basic pay (see 5 U.S.C. 8332 and 8411).

Annual and Sick Leave Accrual—Under 5 CFR 630.208, full-time employees do not accrue annual or sick leave during a pay period in which accumulated LWOP for the leave year reaches 80 hours. If employees continue in an extended LWOP status, they will not earn any more sick or annual leave until they return to a pay status. If accumulated LWOP for full-time employees equals less than 80 hours at the end of the last pay period of the leave year, the LWOP does not count for the new leave year.

For purposes of computing accrual rates for annual leave, six months of non-pay status in a calendar year is creditable service.

Military Leave—See Military Leave in Section 1 of this chapter for considerations for employees going on leave without pay for military active duty.

Severance Pay—LWOP time is creditable toward the 12 months of continuous employment needed to qualify for severance pay. However, time not creditable for leave accrual is excluded in the calculation of the payment.

Life Insurance—Basic and optional life insurance continue without cost to you while you are in non-pay status for up to 12 months, at which time the insurance ends. The 12 month LWOP status may be continuous or broken by periods of less than four consecutive months in pay status.

If you have four or more consecutive months during which you received some pay in each pay period after a period of non-pay status, generally you are entitled to begin the 12-month continuation of insurance again. See the FEGLI Handbook at www.opm.gov/healthcare-insurance/life-insurance.

Health Insurance—Under 5 CFR 890, agencies must provide employees entering leave without pay status with a written notice of their opportunity to continue their Federal Employees Health Benefits program coverage. The same written notice also must be provided to employees on LWOP whose pay is insufficient to cover their FEHB premium payments. Generally, an employee’s health insurance enrollment may be continued for up to 365 days of LWOP status. The non-pay status may be continuous or broken by periods of less than four consecutive months in a pay status. The government contribution continues while you are in a non-pay status. While on LWOP, you remain responsible for your share of the premium cost incurred in every pay period during which the enrollment continues. You may choose between paying the agency directly on a current basis or having the premiums accumulate and withheld from your pay upon returning to duty. 

If you return to pay status for less than four consecutive months, then return to non-pay status, you do not begin a new period of 365 days during which you are entitled to continue the health benefits enrollment. Instead, the second non-pay period is treated as a continuation of the first. If you are in a pay status during any part of a pay period, the entire pay period is not counted toward the 365-day limit. On the other hand, if you return to pay status for at least four consecutive months during which you are paid for at least part of each pay period, you will be entitled to begin a new period of up to 365 days continuation of enrollment while in non-pay status.

Also see the FEHB Handbook at www.opm.gov/healthcare-insurance/healthcare/reference-materials.

Federal Long-Term Care Insurance Program—If you are paying FLTCIP premiums via payroll deduction, you can contact Long Term Care Partners at (800) 843-3557 or www.ltcfeds.com to arrange direct billing. If you do not, and LTC Partners receives no premium for one or two pay periods, it will adjust future deductions with a cap of an additional $50 per pay period until the balance is collected. If it receives no premium payment for three consecutive pay periods, it will begin billing you directly.

Federal Employees Dental and Vision Insurance Program—FEDVIP premiums normally must be paid through payroll withholding because of pre-tax status of the premium payments. If you begin a period of non-pay status (or pay that is insufficient to have your FEDVIP premiums withheld), you must make arrangements to make direct premium payments or else coverage for yourself and any covered family members will be canceled. Contact Benefeds at www.benefeds.com, phone (877) 888-3337 (TTY (877) 889-5680). The program will generate a direct bill for past due premiums when no premium is paid for two consecutive pay periods. 

Thrift Savings Plan—Investments in TSP accounts, including “catch-up contribution” amounts, cannot be made when not in a pay status. Receipt of workers’ compensation payments is not deemed to be pay status for this purpose. Agency contributions for FERS employees stop during periods of non-pay status. While in non-pay status new loans are not allowed, within certain exceptions, and those with existing loans must stay current unless they request and receive a suspension from the TSP. See Loans in Chapter 6, Section 3.

Investors in non-pay status can manage an existing account by making a contribution election, which will be effective when returning to pay status, or by transferring money in their accounts among the investment funds, which will be effective under standard rules governing interfund transfers. They also can make in-service withdrawals, either age-based or hardship-based, but cannot make post-employment withdrawals unless they separate from service.

Flexible Spending Accounts—If you go on a period of LWOP or other non-pay status, your agency will not withhold your allotment during the period you are on leave. 

Incurred eligible health care expenses will not be reimbursed until you return to a pay status and the allotments are restarted (in which case the remaining allotments would be recalculated over the remaining pay periods to match your annual election amount). Eligible dependent care expenses incurred during the non-pay status may be reimbursed up to whatever balance is in a dependent care account, as long as the expenses allow you (or your spouse if married) to work, look for work, or attend school full-time. Once dependent care allotments are restarted, remaining allotments would be recalculated over the remaining pay periods to match your annual election amount.

LWOP for military service is considered a qualifying life event that allows changes in FSA deductions and you may:

• cancel coverage as of the start of the leave, with otherwise allowable expenses incurred during the LWOP not eligible for reimbursement; or

• continue coverage per the revised election amount during the leave period, with allowable expenses incurred during the leave eligible for reimbursement.

Those choosing the latter option must fund the account either by prepaying allotments through accelerated deductions prior to the LWOP, or by freezing the account and recalculating payroll deductions upon return from leave.

Contact FSAFEDS at www.fsafeds.com, (877) 372-3337, TTY (866) 353-8058.

Family and Medical Leave Act

The 1993 Family and Medical Leave Act (Public Law 103-3) provides federal employees with unpaid leave for family and medical purposes. The law provides for 12 administrative workweeks of unpaid leave during any 12-month period for the following conditions:

• birth of a son or daughter and care of newborn (within one year after birth);

• placement of a son or daughter with the employee for adoption or foster care (within one year after placement);

• care for a spouse, son, daughter, or parent with a serious health condition; or

• a serious health condition that makes the employee unable to perform the duties of his or her position.

To be eligible, employees must have completed at least one year of civilian service with the government. Temporary and intermittent employees are excluded from the coverage. The law prohibits any interference with the employee’s right to take this leave through coercion, intimidation, or threat.

The unpaid family and medical leave is in addition to the employee’s paid annual and sick leave or any compensatory time off available to the employee. The employee may offset some of the unpaid leave under this law by substituting annual or sick leave, as appropriate.

Employees wishing to take family or medical leave need to provide up to 30 days’ advance notice if practicable. As a rule, an employee may not invoke his or her entitlement to FMLA leave retroactively. However, if an employee and his or her personal representative are incapable of invoking the employee’s entitlement to FMLA during the entire period of absence from work, the employee may retroactively invoke entitlement to FMLA within two days after returning to work. 

Spousal eligibility does not extend to unmarried domestic partners unless they meet the requirements of common law marriage in a jurisdiction where such marriages are recognized (see an October 21, 2013 memo at www.chcoc.gov/transmittals). See Qualifying Family Members in Section 1 of this chapter for information regarding eligibility to use sick leave or shared leave for purposes related to a domestic partner of either gender.

For FMLA purposes, a child must be under 18 years old, or 18 or older and incapable of self-care because of a mental or physical disability. The FMLA definition of child includes a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis (in the place of a parent) under standards set by the Labor Department and adopted by the Office of Personnel Management as applying to federal employees. That policy (at www.dol.gov/whd/opinion/adminIntrprtnFMLA.htm) states that either day-to-day care or financial support may establish such a relationship where the employee has assumed the responsibilities of a parent with regard to a child; there is no requirement to provide both. The entitlement to use the leave for purposes related to a child applies to all persons who assume responsibility for parenting a child, regardless of the biological or legal relationship. This means that if those standards are met, leave can be taken to care for the children of domestic partners of either gender or for a spouse’s children by a former marriage, for example. Leave may be taken by someone who steps in to parent a child when that child’s parents are absent or incapacitated, even if that person is not a legal guardian, among other possible situations. However, it does not apply to caring for a child while the child’s parents are on vacation.

Where an agency has questions about whether an employee’s relationship to a child is covered under the FMLA, the agency may require the employee to provide reasonable documentation or a statement of the family relationship.

Also see an August 31, 2010 memo at www.chcoc.gov/transmittals

Health Condition—When leave is being requested for a serious health condition, or to care for a seriously ill child, spouse or parent, the leave may be taken intermittently or on a reduced work schedule without the agency’s approval.

You are expected to make a reasonable effort to schedule treatment, subject to the approval of the health provider, so as not to unduly disrupt the operations of the agency. In the case of a serious illness the agency may transfer you to another position that better meets the needs of the agency and your needs.

Also, where the request for leave is based on a medical problem, an agency may require medical certification with the date of the onset, prognosis, and statement of need for care. You must provide medical documentation within 15 calendar days. If this is not possible, despite your diligent, good faith efforts, medical certification must be provided within a reasonable period, but no later than 30 calendar days after the date the agency requests such certification. Medical certification forms are under Leave Forms at www.opm.gov/policy-data-oversight/pay-leave/leave-administration.

If the agency doubts the validity of the original certification of eligibility, it may require a second opinion. Cost of the second opinion would be paid by the agency. If the second opinion varies from the first opinion, the agency may require a third opinion. The third opinion is final and binding.

Return to Employment—Several conditions are attached to return to employment upon completion of unpaid leave. As an employee using the unpaid leave, you are entitled to be returned to the same or equivalent position with equivalent benefits, pay, status and other terms and conditions of employment. Under the law, this leave cannot result in the loss of any employment benefit accrued before leave began.

Further, the law does not entitle you to the accrual of any employment benefits other than those to which you would have been entitled if the leave had not been taken.

The law requires the government to continue health insurance benefits for employees taking this leave at the same level and under the same conditions as would be in effect if the employees had continued on the job. Employees who don’t return to work from leave must pay the government back for health premiums it paid while they were on this leave.

Agencies may require employees who use FMLA medical leave for their own serious health condition to obtain certification from a health care provider confirming their ability to return to work. During the period of leave, an agency also may require periodic status reports on the employee’s ability or intention to return to work. (Also see 5 CFR 630 subpart L, your agency’s FMLA policies, and the Family and Medical Leave fact sheet, the Handbook on Leave and Workplace Flexibilities for Childbirth, Adoption and Foster Care and the Handbook on Leave and Workplace Flexibilities and Work-Life Programs for Elder Care at www.opm.gov/policy-data-oversight/pay-leave/leave-
administration
.)

Military Family Leave—5 U.S.C. 6381-6383 authorizes federal employees to take FMLA leave to provide care for injured members of the Armed Forces or certain veterans under some circumstances. An eligible federal employee is the spouse, son, daughter, parent, or the nearest blood relative of a covered service member or veteran.

A service member covered under the law is: a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty, or a pre-existing condition that was aggravated by active duty, for which he or she is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list. 

Covered veterans are: those undergoing medical treatment, recuperation, or therapy for such injuries or illnesses, and who were members of the Armed Forces (including of the National Guard or Reserves) at any time during the five years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy.

During a 12-month period, an eligible employee is entitled to a combined total of 26 weeks of regular FMLA leave and military family leave. For example, if during a 12-month period an employee wants to take six weeks of regular FMLA leave for the birth of a child, as well as military family leave for care of a service member or veteran, the six weeks of regular FMLA leave would be subtracted from the combined entitlement of 26 weeks, leaving the employee with 20 weeks of military family leave for care of the service member or veteran. The use of this military family leave in a single 12-month period does not limit the use of regular FMLA leave during any other 12-month period.

Note: The total of sick leave an employee may substitute for unpaid FMLA leave to care for a covered service member may not exceed 26 administrative workweeks in a 12-month period or, for a part-time employee, an amount equal to 26 times the scheduled tour of duty each week.

Also, 5 U.S.C. 6382 provides employees with an entitlement of up to 12 administrative workweeks of FMLA leave during any 12-month period because of any qualifying exigency arising out of the fact that the spouse or a son, daughter, or parent of the employee is on covered active duty, or has been notified of an impending call or order to covered active duty, in the Armed Forces. Qualifying exigencies are: issues arising from deployments with seven or fewer days of notice; military events and related activities; child care and school activities; financial and legal arrangements; counseling (including both medical and non-medical counseling); rest and recuperation; post-deployment activities; and other activities that the employing agency accepts as qualifying. An agency may require verification that an activity is qualifying. See 5 CFR 630.1204 and the Family and Medical Leave Qualifying Exigency Leave fact sheet at www.opm.gov/policy-data-oversight/pay-leave/leave-
administration
.

Similar to regular FMLA leave, military family leave is unpaid leave for which an employee may substitute any accumulated annual or sick leave. The normal leave year limitations on the use of sick leave to care for a family member do not apply. See 5 CFR 630 for policies on advancement of sick or annual leave and the use of leave donated under leave sharing programs for this purpose, and for policies regarding multiple eligible service members or multiple injuries or illnesses of the same person. 

Time Off for Family Obligations

Where possible, federal employees should be allowed to take up to 24 hours of unpaid leave annually to meet routine, but important, family obligations, according to an April 11, 1997, presidential memo (at www.opm.gov/oca/leave/html/fampres.htm). Examples of the family obligations that employees might use such leave grants for include: participation in children’s school activities, accompanying children or elderly relatives to routine medical or dental appointments, and helping elderly relatives make living arrangements related to housing, meals, banking services, and similar activities. (Note: Employees’ same-sex domestic partners, their children, and their elderly relatives qualify; see a September 9, 2010 memo at www.chcoc.gov/transmittals.) Agencies also are to cooperate, where possible, with employees’ requests to schedule paid leave or time off (such as annual or sick leave, compensatory time off, or credit hours under flexible work schedules) to allow them to participate in these family activities.

However, this is not an entitlement. According to OPM guidance at the same online address, requests are to be evaluated in terms of whether the employee’s services are required or can be spared during that time and are to be granted unless circumstances exist that would severely limit an agency’s ability to accomplish its mission.

An agency may require employees to provide “administratively acceptable” evidence supporting their family-obligation leave requests, such as certification of medical appointments or similar evidence of a scheduled school activity or need to make arrangements for an elderly relative. Agencies may keep records of such leave, but are not required to do so.

There is no order of precedence dictating how or when employees may use or request time off under the federal government’s various family-friendly leave policies. For example, a supervisor may not require an employee to use leave without pay to cover time off for routine child care or elder care purposes. Also see Family-Friendly Schedules and Work Arrangements in Chapter 8, Section 2.

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