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The State of Unpaid Family and Medical Leave in the U.S. in 2023
Fact Sheet

The State of Unpaid Family and Medical Leave in the U.S. in 2023

This fact sheet provides an overview of unpaid family and medical leave laws in the United States, including the federal Family and Medical Leave Act.

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Woman looking down on daughter in crib
Danelle Buchman puts her young daughter to bed, February 2013, in Maryland. Buchman was not covered under the Family Medical Leave Act when her daughter, born premature, was in the neonatal intensive care unit and Buchman nearly died of a ruptured artery in her uterus. (Getty/Katherine Frey/The Washington Post)

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Workers in the United States currently are not guaranteed a single paid day off by federal law, and many aren’t even entitled to unpaid time. The Center for American Progress presents a series of fact sheets explaining the three major types of laws that give workers rights in relation to workplace leave. This fact sheet addresses unpaid family and medical leave.

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Unpaid family and medical leave is time off work, including relevant employment protections, without being guaranteed the right to be paid during that time. Covered needs include:

  • Medical leave, which covers needs in connection with a worker’s own serious health condition. This could include time off for chemotherapy, recovery from surgery, or prenatal care.
  • Family leave, which can include:
    • Parental leave for bonding with a new child. Parental leave can include parents of any gender, as well as foster and adoptive parents. Parental leave may also be referred to as maternity leave, paternity leave, or bonding leave.
    • Caregiving leave for caring for a loved one with a serious health condition.
    • Deployment-related leave to meet needs in connection with a loved one’s current or impending active-duty military service, such as making legal or financial arrangements, attending official military events, or being with a loved on a short-term rest and recuperation leave.

Defining ‘serious health condition’

Under the federal Family and Medical Leave Act, a serious health condition is an illness, injury, or other medical condition that requires either inpatient care or ongoing treatment by a health care provider.1 Serious health conditions can include acute conditions such as cancer or a stroke, chronic conditions such as asthma or diabetes, and recovery from serious injuries or accidents, as well as both physical and mental conditions. State laws vary in their exact definitions, but most use definitions similar to federal law.

What laws provide unpaid family and medical leave?

A federal law called the Family and Medical Leave Act (FMLA) guarantees covered employees the right to up to 12 weeks of unpaid leave in a year.2

In addition, many states have their own unpaid family and/or medical leave laws, sometimes referred to as state FMLAs. These laws typically offer similar protections and cover many of the same purposes, but they may cover people or situations not covered by the federal FMLA. States with such laws include California,3 Connecticut,4 Hawaii,5 Maine,6 New Jersey,7 Oregon,8 Rhode Island,9 Vermont,10 and Wisconsin,11 as well as Washington, D.C.12

Separately, many states provide rights to unpaid time off that are limited to pregnancy, recovery from childbirth, or parenting. These laws vary substantially in the rights they provide and the scope of coverage. States with such laws include California,13 Iowa,14 Kansas,15 Louisiana,16 Maryland,17 Massachusetts,18 Minnesota,19 Montana,20 Tennessee,21 and Washington state.22 Kentucky provides affirmative leave rights exclusively to adoptive parents.23

What needs do unpaid family and medical leave laws cover?

The federal FMLA guarantees unpaid leave to covered employees for:

  • Medical leave to address their own serious health condition.
  • Caregiving leave to care for a parent, a child under age 18 or incapable of self-care due to a disability, or a spouse with a serious health condition.
  • Parental leave to bond with a new child, for a parent of any gender, including foster and adoptive parents.
  • Deployment-related leave to address the impact of a parent, child, or spouse’s military deployment.

State FMLAs vary in their covered needs but typically cover some combination of the purposes covered by the federal FMLA. They may also cover additional needs not covered by the federal FMLA, such as bereavement leave or time to attend a child’s school activities.24

What rights do unpaid family and medical leave laws provide?

The FMLA does not guarantee the right to be paid while on leave, but it does guarantee covered employees the right to time off from work, as well as the following rights:

  • Right to reinstatement (“job protection”): Those taking FMLA leave are entitled to get their jobs back following leave.25 If their prior job is not available, they must receive a job with “virtually identical … pay, benefits and working conditions” and “the same or substantially similar duties and responsibilities.”26
  • Right to health insurance continuation: Employees taking FMLA leave who receive health insurance through their employer are entitled to continuation of that coverage while they are on leave, on the same terms as while they are working. In particular, that means that the employer must continue paying any share of the premium that the employer pays while the employee is working.27
  • Protection against retaliation and interference: Employers cannot punish or discriminate against employees for exercising their rights under the FMLA. This means they cannot take any negative action, such as firing an employee or writing them up, because the employee used a protected right. Employers also cannot prevent or try to prevent an employee from using their FMLA rights, such as by refusing to allow a covered leave.28

While their exact protections vary, state FMLAs typically provide similar rights to the federal FMLA, such as the right to reinstatement and protection against retaliation but, like the FMLA, do not provide a right to pay.29

Employees taking federal FMLA leave or leave under a state FMLA may have the right to pay under other laws, such as a state paid family and medical leave law.

Who do unpaid family and medical leave laws cover?

In order to be covered by the federal FMLA, an employee must meet all three of the following requirements:

  1. Be employed by an employer with at least 50 employees within a 75-mile radius of the employee’s work site
  2. Have been employed by that employer for a minimum of 12 months
  3. Have worked for that employer for at least 1,250 hours in the past year30

Taken together, these three requirements mean that only 56 percent of employees are covered by the FMLA. In other words, almost half of all employees are not covered.31 Those not covered are disproportionately low-wage workers: Only 38 percent of low-wage workers are covered by the FMLA, compared with 63 percent of non-low-wage workers.32

Other groups of vulnerable workers are also especially likely to be left out of the FMLA. For example, many part-time workers cannot meet the 1,250-hour requirement, which requires an average of about 24 hours per week. Those in single-parent households are notably less likely than those in dual-parent households to be covered.33 Military spouses may also be especially likely to be left out, given the impacts of the military lifestyle on employment.34

State FMLAs vary widely in their eligibility criteria. Most require a minimum employer size, though numbers vary widely, from as small as five employees in California to as many as 100 employees in Hawaii.35 Some require employees to have been employed for at least a year, like the federal FMLA, while others have shorter qualifying periods. States vary in terms of hours-worked requirements. For example, Wisconsin requires 1,000 hours worked (about 19 hours per week), while Maine has no hours-worked requirement.36 Following amendments in conjunction with the passage of Connecticut’s paid family and medical leave law, that state’s FMLA offers uniquely broad coverage, with no minimum employer size, no hours-worked requirement, and a low minimum-employment-duration requirement of three months.37

How much time can workers take under unpaid family and medical leave laws?

Under the federal FMLA, covered employees can take up to a total of 12 weeks of leave in a one-year period, whether that leave is for a single purpose or for multiple covered needs.38 Those caring for a family member who is seriously ill or injured as a result of their military service may be entitled to up to 26 weeks of FMLA leave.39 Subject to certain rules, FMLA leave may be taken all at once (continuously) or spread out over time (intermittently).40

The length of covered leave varies substantially under state FMLAs. Many state FMLAs provide the right to up to 12 weeks of leave, like the federal FMLA. Hawaii, Maine, and Wisconsin offer fewer than 12 weeks,41 while Washington, D.C.; Rhode Island; and Oregon potentially offer more than 12 weeks.42

How much money do workers receive through unpaid family and medical leave laws?

Unpaid family and medical leave laws such as the FMLA do not guarantee the right to pay while on leave. This means that an employer can meet its legal obligation to provide leave by providing unpaid leave.

Employees may be able, or required, to use their vacation or sick time to receive pay while they are on FMLA leave or may receive income from another source, such as a short-term disability insurance policy.43 Employees may also be able to receive benefits under a state family and medical leave law while on FMLA leave or leave under a similar state law.

This means that if an employee does not have access to pay by other means and cannot afford to go unpaid, they may not be able to take the time they need. Inability to afford unpaid leave is the most common reason workers do not take needed leave, with particular impacts on low-wage workers.44

Endnotes

  1. Legal Information Institute, “29 U.S.C. § 2611(11),” available at https://www.law.cornell.edu/uscode/text/29/2611 (last accessed December 2022).
  2. 29 U.S.C. §§ 2601-2654, available at https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter28&edition=prelim (last accessed December 2022).
  3. [1] Cal. Gov. Code § 12945.2, available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12945.2 (last accessed December 2022).
  4. Conn. Gen. Stats. §§ 31-51kk to 31-51qq, available at https://www.cga.ct.gov/current/pub/chap_557.htm#sec_31-51kk (last accessed December 2022).
  5. Haw. Rev. Stat. Ann. §§ 398-1 to 398-11, available at https://www.capitol.hawaii.gov/hrscurrent/vol07_ch0346-0398/hrs0398/hrs_0398-.htm (last accessed December 2022).
  6. Me. Rev. Stat. Ann. tit. 26, §§ 843–848, available at https://www.mainelegislature.org/legis/statutes/26/title26ch7sec0.html (last accessed December 2022).
  7. N.J. Stat. Ann. §§ 34:11B-1 to 34:11B-16, available at https://www.nj.gov/oag/dcr/downloads/Family-Leave-Act.pdf (last accessed December 2022).
  8. Or. Rev. Stat. Ann. §§ 659A.150–.186, available at https://www.oregonlegislature.gov/bills_laws/ors/ors659a.html (last accessed December 2022).
  9. 28 R.I. Gen. Laws §§ 28-48-1 to -12, available at http://webserver.rilin.state.ri.us/Statutes/TITLE28/28-48/INDEX.HTM (last accessed December 2022).
  10. Vt. Stat. Ann. tit. 21, §§ 470-474, available at https://legislature.vermont.gov/statutes/chapter/21/005 (last accessed December 2022).
  11. Wis. Stat. Ann. § 103.10, available at https://docs.legis.wisconsin.gov/statutes/statutes/103/10 (last accessed December 2022).
  12. D.C. Code §§ 32-501 to -517, available at https://code.dccouncil.gov/us/dc/council/code/titles/32/chapters/5/subchapters/I (last accessed December 2022).
  13. Cal. Gov’t Code § 12945, available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=12945.&nodeTreePath=3.3.4.5.1&lawCode=GOV (last accessed December 2022).
  14. Iowa Code Ann. § 216.6(2)(e), available at https://www.legis.iowa.gov/docs/ico/section/2014/216.6.pdf (last accessed December 2022).
  15. Kan. Admin. Regs. § 21-32-6(d), available at http://www.khrc.net/pdf/RulesAndRegs.pdf (last accessed December 2022).
  16. La. Stat. Ann. § 23:342(2)(b), available at https://www.legis.la.gov/Legis/Law.aspx?d=83884 (last accessed December 2022).
  17. Md. Code Ann., Lab. & Empl. §§ 3-1201 to 3-1211, available at https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=gle&section=3-1201&enactments=False&archived=False (last accessed December 2022).
  18. Mass. Gen. Laws Ann. ch. 149, § 105D, available at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section105D#:~:text=The%20employee%20shall%20give%20at,reasons%20beyond%20the%20individual’s%20control (last accessed December 2022).
  19. Minn. Stat. Ann. § 181.941, available at https://www.revisor.mn.gov/statutes/cite/181.941 (last accessed December 2022).
  20. Mont. Code Ann. § 49-2-310(2), available at https://leg.mt.gov/bills/mca/title_0490/chapter_0020/part_0030/section_0100/0490-0020-0030-0100.html (last accessed December 2022).
  21. Tenn. Code Ann. § 4-21-408, available at https://www.tn.gov/humanrights/publications/laws-and-regu1/maternity-leave.html (last accessed December 2022).
  22. Wash. Admin. Code § 162-30- 020(4), available at https://apps.leg.wa.gov/wac/default.aspx?cite=162-30-020#:~:text=(a)%20An%20employer%20shall%20provide,sickness%20or%20other%20temporary%20disabilities (last accessed December 2022).
  23. Ky. Rev. Stat. Ann. § 337.015, available at https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51086 (last accessed December 2022).
  24. Molly Weston Williamson, “A Foundation and A Blueprint: Building the Workplace Leave Laws We Need After Twenty-Five Years of the Family & Medical Leave Act” (Washington: A Better Balance, 2018), p. 27, available at https://www.abetterbalance.org/resources/a-foundation-and-a-blueprint/.
  25. Legal Information Institute, “29 C.F.R. § 825.214,” available at https://www.law.cornell.edu/cfr/text/29/825.214 (last accessed December 2022).
  26. Legal Information Institute, “29 C.F.R. § 825.215,” available at https://www.law.cornell.edu/cfr/text/29/825.215 (last accessed December 2022).
  27. Legal Information Institute, “29 C.F.R. § 825.209,” available at https://www.law.cornell.edu/cfr/text/29/825.209 (last accessed December 2022).
  28. Legal Information Institute, “29 C.F.R. § 825.220,” available at https://www.law.cornell.edu/cfr/text/29/825.220 (last accessed December 2022).
  29. Molly Weston Williamson, “The Meaning of Leave: Understanding Workplace Leave Rights,” NYU Journal of Legislation and Public Policy 22 (1) (2019): 233–268, available at https://nyujlpp.org/wp-content/uploads/2019/12/Williamson-The-Meaning-of-Leave-22-nyujlpp-197.pdf.
  30. Legal Information Institute, “29 C.F.R. § 825.110,” available at https://www.law.cornell.edu/cfr/text/29/825.110 (last accessed December 2022).
  31. Scott Brown and others, “Employee and Worksite Perspectives of the FMLA: Who Is Eligible?” (Rockville, MD: Abt Associates, 2020), available at https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018PB1WhoIsEligible_StudyBrief_Aug2020.pdf.
  32. Scott Brown, Radha Roy, and Jacob Alex Klerman, “Leave Experiences of Low-Wage Workers” (Rockville, MD: Abt Associates, 2020), available at https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA_LowWageWorkers_January2021.pdf.
  33. Brown and others, “Employee and Worksite Perspectives of the FMLA: Who Is Eligible?”
  34. A Better Balance, “Military Families and the Need for Paid Leave” (Washington), pp. 4–5, available at https://www.abetterbalance.org/resources/military-families-the-need-for-paid-leave/ (last accessed December 2022).
  35. Cal. Gov. Code § 12945.2(b)(4); Haw. Rev. Stat. Ann. § 398-1.
  36. Wis. Stat. Ann. § 103.10(2)(c); Me. Rev. Stat. Ann. tit. 26, § 843.
  37. Conn. Gen. Stats. § 31-51kk(1)-(3).
  38. Legal Information Institute, “29 U.S.C. § 2612(a)(1),” available at https://www.law.cornell.edu/uscode/text/29/2612 (last accessed December 2022).
  39. 29 U.S.C. § 2612(a)(3).
  40. 29 U.S.C. § 2612(b)
  41. Haw. Rev. Stat. Ann. § 398-3(a); Me. Rev. Stat. Ann. tit. 26, § 844; Wis. Stat. Ann. § 103.10(3)-(4).
  42. D.C. Code § 32-502; 28 R.I. Gen. Laws § 28-48-2; Or. Rev. Stat. Ann. § 659A.162.
  43. Legal Information Institute, “29 C.F.R. § 825.207,” available at https://www.law.cornell.edu/cfr/text/29/825.207 (last accessed December 2022).
  44. Scott Brown and others, “Employee and Worksite Perspectives of the Family and Medical Leave Act: Executive Summary for Results from the 2018 Surveys” (Rockville, MD: Abt Associates, 2020), p. 4, available at https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_ExecutiveSummary_Aug2020.pdf.

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