2012 Federal Employees Almanac
Chapter 5, Section 4: Unpaid Leave
- By Almanac Staff
- February 19, 2012
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 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 (FMLA, Public Law 103-3, provides covered employees with an entitlement to a total of up to 12 weeks of unpaid leave (LWOP) during any 12-month period for certain family and medical needs. (See below and 5 CFR Part 630, subpart L.)
- The Uniformed Services Employment and Re-employment Rights Act of 1994 (P.L. 103-353) 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 July 17, 1930, provides that disabled veterans are entitled to LWOP for necessary medical treatment.
Other uses for which LWOP may be approved are an employee's desire to enroll in 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. Employees may not be in a pay status while receiving workers' compensation payments from the Department of Labor.
LWOP affects certain benefits, as described below (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).
Service Computation Date -- Except for absence due to military service or because of compensable injury, when an employee has been on leave without pay for six months or less during any calendar year, he 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.
Service Time -- 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 of the general schedule; 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 prevailing rate 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 while in a non-pay status. 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 -- Under 5 CFR 630.208, full-time employees who accumulate 80 hours of LWOP must have their credits for annual and sick leave reduced by an amount equal to the amount of leave that they would earn during the pay period in which accumulated LWOP equals 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 the 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 is dropped and the employees are entitled to earn annual and sick leave until they once again accumulate 80 hours of LWOP in 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 special 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 the employee while he or she is in non-pay status for up to 12 months, at which time the insurance is terminated. The 12 month LWOP status may be continuous or broken by periods of less than four consecutive months in pay status.
If the employee has four or more consecutive months during which he or she received some pay in each pay period after a period of non-pay status, the employee generally is entitled to begin the 12-month continuation of insurance again. See the FEGLI Handbook at www.opm.gov/insure/life.
Health Insurance -- Under 5 CFR Part 890, agencies must provide employees entering leave without pay status (or whose pay is insufficient to cover their Federal Employees Health Benefits premium payments), written notice of their opportunity to continue their FEHB coverage. 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 employees are in a non-pay status. The government also is responsible for advancing from salary the employee share as well. Employees on LWOP remain responsible for payment of the employee share of the cost of enrollment for every pay period during which the enrollment continues. The employee may choose between paying the agency directly on a current basis or having the premiums accumulate and withheld from his or her pay upon returning to duty.
If an employee in non-pay status returns to pay status for less than four consecutive months, then returns to non-pay status, the employee does not begin a new period of 365 days during which he or she is entitled to continue the health benefits enrollment. Instead, the second non-pay period is treated as a continuation of the first. If an employee is 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 the employee returns to pay status for at least four consecutive months during which he or she is paid for at least part of each pay period, the employee will be entitled to begin a new period of up to 365 days continuation of enrollment while in non-pay status.
For exceptions to this, see the FEHB Program Handbook at www.opm.gov/insure/health/reference/handbook/fehb00.asp.
Federal Long-Term Care Insurance Program -- If you are paying FLTCIP premiums via payroll deduction, contact LTC Partners at (800) 843-3557 or www.ltcfeds.com to arrange direct billing.
Federal Employees Dental and Vision Insurance Program -- 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).
Thrift Savings Plan -- Contributions to TSP accounts, including "catch-up" contributions by investors age 50 and older, 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.
Those in non-pay status cannot take out new loans. Loan payments on an existing loan normally can be suspended for up to one year. If you enter non-pay status to perform military service you will be permitted to suspend payments on your loan until you return to pay status. Interest continues to accrue during a period of a loan suspension.
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 already invested money among 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 nonpay status may be reimbursed up to whatever balance is in a dependent care account, as long as the expenses incurred during the nonpay status allow you (or your spouse if married) to work, look for work, or attend school full-time. Once dependent care allotments are successfully 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 (877) 372-3337, TTY (800) 952-0450.
With few exceptions, agencies determine administratively the situations in which they will excuse employees from duty without charge to leave. Each department or agency has discretion to excuse employees from their duties without loss of pay or charge to leave. The Government Accountability Office's Civilian Personnel Law Manual, Title II-Leave, Chapter 5 (www.gao.gov/special.pubs/og96006.txt) contains guidance on the use of excused absence. The Department of Defense's internal guidance is in the Civilian Personnel Manual, DoD 1400.25-M. Some collective bargaining agreements have provisions regarding the use of excused absences.
Some of the more common situations in which agencies usually approve excused absence are: for donating blood; for attending meetings for the benefit of the federal service; to employees returning from active military duty (see Military Leave in Section 1 of this chapter); when the employee is absent or tardy unavoidably for reasons that are acceptable to the supervisor; for certain volunteer activities, preventive health screenings, inclement weather or other emergencies (see Chapter 8, Section 2); and for voting. In addition, the President occasionally grants excused absences for various reasons, such as allowing part or all of the day off on December 24 or 26 when the Christmas Day holiday falls on certain weekdays.
Voting -- Agencies may allow employees sufficient time off to register and vote in federal, state, county, or municipal elections, to the extent that it does not interfere seriously with operations. As a general rule, where the polls are not open at least three hours either before or after an employee's regular hours of work, an amount of excused leave (no charge to annual leave) may be granted which will permit the employee to report to work three hours after the polls open or leave work three hours before the polls close, whichever requires the lesser amount of time off. If an employee's voting place is beyond normal commuting distance and vote by absentee ballot is not permitted, the employee may be granted sufficient time off (not to exceed one day) in order to be able to make the trip to the voting place to cast a ballot. Time off in excess of one day must be charged to annual leave or leave without pay.
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 special 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.
The FMLA defines a son or daughter as 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). The child must be under 18 years old, or 18 or older and incapable of self-care because of a mental or physical disability.
Labor Department guidance (www.dol.gov/whd/opinion/adminIntrprtnFMLA.htm) states that whether an employee stands in loco parentis to a child depends on the facts and the intent. Either day-to-day care or financial support may establish a relationship where the employee has assumed the responsibilities of a parent with regard to a child, but 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 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.
The guidance does not affect policies regarding taking leave for personal purposes or eligibility for purposes related to a spouse, nor does it apply to situations such as caring for a child while the child's parents are on vacation.
An August 31, 2010 memo to agencies at www.chcoc.gov/transmittals addresses how the guidance applies to federal employees. 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.
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.
An employee is expected to make a reasonable effort to schedule treatment, subject to the approval of the health provider, so as not to disrupt unduly the operations of the agency. In the case of a serious illness the agency may transfer the employee to another position that better meets the needs of the agency and the employee.
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. An employee must provide medical documentation within 15 calendar days. If this is not possible, despite the employee's diligent, good faith efforts, medical certification must be provided within a reasonable period of time, but no later than 30 calendar days after the date the agency requests such certification. Medical certification forms are at www.opm.gov/oca/leave.
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. An employee using the unpaid leave is 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 any returning employee to the accrual of any employment benefits other than those to which the employee 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 retain the right to have a uniformly applied policy that requires 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 can require periodic status reports on the employee's ability or intention to return to work. (For more information about FMLA rights, see www.opm.gov/oca/leave/html/fmlafac2.asp, or regulations at 5 CFR Part 630, Subpart L, as well as your own agency's FMLA policies.)
Military Family Leave -- Amendments to 5 U.S.C. 6381-6383 made by Public Law 110-181 authorize 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 amount of accumulated and accrued sick leave an employee may substitute for unpaid FMLA leave to care for a covered service member may not exceed a total of 26 administrative workweeks in a single 12-month period or, for a part-time employee, an amount equal to 26 times his or her scheduled tour of duty each week.
That same law amended 5 U.S.C. 6382 to provide 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.
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 Part 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 (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, Office of Personnel Management memo to agencies 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 (www.opm.gov/oca/leave/html/famqa.htm), federal supervisors already had discretion to grant workers time off for such purposes, but the president's memo was designed to "make supervisors more sensitive to employees' needs." Such requests by employees, OPM stressed, "should continue to be evaluated in terms of whether the employee's services are required or can be spared during the time period covered by the leave request." However, as a general rule, such requests should 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.
The heads of departments and agencies are to support its employees' commitment to community service and ensure that all employees are aware of the various flexibilities available to them to participate in volunteer activities. Federal departments and agencies may review their work scheduling practices and leave scheduling policies to make maximum use of existing flexibilities, to allow federal employees to plan and take time off to participate in volunteer activities and community service.