My previous blog discussed the benefits of paid leave for federal employees who can no longer work because of their medical disability. This blog summarizes the two most common unpaid leave options: Family & Medical Leave Act (FMLA) and Leave Without Pay (LWOP).
Family & Medical Leave Act (FMLA)
The Family & Medical Leave Act (FMLA) offers a federal worker various benefits and protections. FMLA allows an employee to take up to 12 (cumulative or consecutive) weeks of unpaid leave per year. There are two primary benefits to using FMLA leave:
- Your job is protected while you are on leave. This means that your agency cannot fire you simply because you are out on leave.
- Your health insurance (and other group health benefits) continues while you are on leave. Being on FMLA leave allows you to keep your health insurance while you are not working so that you can continue your medical treatment uninterrupted.
In addition to being available to all federal employees, FMLA leave is also available to employees of public agencies (i.e. state, county and local government entities), all public and private elementary and secondary schools, and companies with 50 or more employees. FMLA leave can be used for the following reasons:
- As medical leave when the employee is unable to work because of a serious accident or medical condition
- For the birth and care of a newborn child of the employee
- For the placement of a child with the employee through adoption or foster care
- To care for an immediate family member (spouse, child, or parent) with a serious health condition.
In order to request FMLA leave for a medical condition, your physician must certify your need for leave by completing a form (and sometimes submitting medical records) detailing information about your diagnosed condition and your symptoms, as well as how your condition impacts your ability to work.
Although FMLA is only a temporary solution, the protections it grants an employee are invaluable and all FMLA leave should (and in most circumstances must) be exhausted before the federal employee can go on LWOP.
Leave Without Pay (LWOP)
Leave Without Pay (LWOP) is the other unpaid leave option available to federal employees. Other than the fact that both FMLA and LWOP leave are unpaid, LWOP is very different from FMLA in several ways, including the following:
- LWOP is (generally) only available to federal employees. Very few private companies allow employees to take unpaid time off from work and keep their jobs.
- There is no law that grants an employee the right to LWOP. It is completely up to the discretion of the agency to approve or deny a worker’s request for LWOP leave. Further, the agency can revoke the worker’s LWOP status at their discretion at any time.
- There is no guaranteed amount of time that an employee gets to be on LWOP. Unlike FMLA, there is no set maximum amount of time that an employee can be on LWOP. The duration of an employee’s stay on LWOP depended entirely on the agency and what they will permit.
- You are not (always) guaranteed health insurance during the entirety of your time in LWOP status. Unlike FMLA leave, federal workers are not always able to keep their health insurance coverage while they are in LWOP status. If you are in LWOP status for more than 365 calendar days, your job-provided health insurance will be canceled. If you are in LWOP status for fewer than 365 days, you should be able to retain your health insurance coverage.
Although LWOP status does not contain the protections that FMLA affords, it can still be beneficial for the disabled worker. The biggest benefit being that if you are on LWOP, you have not been removed from your position and, as long as you have not been on LWOP for 365 days, you are able to retain your health insurance coverage.
Make sure that you are familiar with your agency’s LWOP policies and rules before you request to be placed in LWOP status.
FERS Disability Retirement Legal Representation in Maryland
The disability attorneys of Andalman & Flynn diligently represent and guide their clients through the complex FERS disability retirement (FDR) application process. If
you or someone you know needs legal representation on an FDR matter, please do not hesitate to contact the Andalman & Flynn disability team for a free consultation today at (301) 563-6685.
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