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Last updated: April 8, 2026

Quick Answer: No, you generally cannot directly use your Leave Without Pay (LWOP) to cover absences that qualify for the Family and Medical Leave Act (FMLA). While FMLA allows eligible employees to take unpaid leave for qualifying reasons, employers are typically required to run FMLA leave concurrently with any other applicable leave, including LWOP, if the circumstances overlap. This means your LWOP might be counted towards your FMLA entitlement, but you cannot independently elect to use LWOP instead of FMLA when FMLA applies.

Key Facts

FMLA requires employers to run eligible leave concurrently with other applicable leave policies.
LWOP can be designated as FMLA leave if it covers a qualifying FMLA reason.
Employees cannot use LWOP to avoid taking FMLA when it applies.
FMLA is a federal law that provides job protection during qualifying leaves of absence.
Employers must provide clear notification to employees regarding FMLA eligibility and how it interacts with other leave types.

Overview

The question of whether an employee can use Leave Without Pay (LWOP) to cover absences that are also eligible under the Family and Medical Leave Act (FMLA) is a common point of confusion in employment law. While both FMLA and LWOP involve unpaid time off, they operate under distinct legal frameworks and serve different purposes. Understanding this distinction is crucial for both employees seeking to utilize their entitled leave and employers administering leave policies to ensure compliance with federal regulations.

Generally, the FMLA mandates that if an employee is eligible for and takes leave for a qualifying FMLA reason, and the employer has other types of leave available (such as paid time off, sick leave, or even LWOP) that could also cover the same absence, the employer must run these leaves concurrently. This means the time taken under LWOP for a qualifying FMLA event will be counted towards the employee's FMLA entitlement. Conversely, an employee cannot simply opt to take LWOP if their absence is covered by FMLA and bypass the FMLA process. The employer's obligation is to ensure that the employee receives the protections and benefits of FMLA when applicable.

How It Works

FMLA Eligibility and Coverage: The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. To be eligible, an employee must have worked for their employer for at least 12 months, have at least 1,250 hours of service during the 12 months prior to the leave, and work at a location where the employer has at least 50 employees within 75 miles. Qualifying reasons include the birth or adoption of a child, caring for a family member with a serious health condition, or the employee's own serious health condition that makes them unable to perform their job functions.
Employer's Obligation for Concurrent Leave: When an employee requests or takes leave for a qualifying FMLA reason, the employer is obligated to designate the leave as FMLA-protected leave. If the employee is also eligible for other forms of leave (like paid sick leave, vacation, or LWOP) that could cover the same period, the employer must run these leaves concurrently. For example, if an employee needs 10 weeks off for a serious health condition, and they have accrued 4 weeks of paid leave, the employer must count those 4 weeks of paid leave as part of the 12 weeks of FMLA leave. Similarly, if an employee requests LWOP for a condition covered by FMLA, the employer must designate that LWOP as FMLA leave.
Employee's Inability to Choose LWOP Over FMLA: An employee cannot choose to take LWOP instead of FMLA if the absence qualifies for FMLA. The FMLA provides critical job protection, including the right to return to the same or an equivalent position, which is not guaranteed with standard LWOP. By requiring concurrent leave, employers ensure that employees receive the full protections of the FMLA. If an employee takes LWOP for an FMLA-qualifying reason without the employer designating it as FMLA, or if the employer fails to designate it, the employee might lose FMLA protections.
Notification Requirements: Employers have a responsibility to inform employees about their FMLA rights and responsibilities, including how FMLA leave interacts with other leave policies. This typically involves providing a notice of eligibility and rights at the time an employee requests leave and also when designating the leave as FMLA. This ensures employees understand that their LWOP, if applicable, is being counted towards their FMLA entitlement.

Key Comparisons

Feature	Family and Medical Leave Act (FMLA)	Leave Without Pay (LWOP)
Purpose	Job-protected, unpaid leave for specific family and medical reasons.	Unpaid time off granted at employer discretion, often for reasons not covered by FMLA or other policies.
Job Protection	Guaranteed return to the same or an equivalent position (with some exceptions).	Not typically guaranteed; depends on employer policy and circumstances.
Legal Basis	Federal law (FMLA)	Employer policy, collective bargaining agreements, or state law (less common).
Benefit Accrual	May continue benefits, but the leave itself is unpaid.	Benefits often cease or are suspended; employee may need to pay premiums.
Eligibility Requirements	Strict criteria related to employer size, employee tenure, and hours worked.	Varies greatly by employer policy.

Why It Matters

Employee Protections: The FMLA's requirement for concurrent leave ensures that employees receive the maximum benefit of job protection and continued health insurance coverage (if applicable) during periods of serious personal or family illness. Using LWOP independently could result in forfeiture of these vital protections.
Employer Compliance: For employers, correctly designating FMLA leave and running it concurrently with other applicable leave types is crucial for legal compliance. Failure to do so can lead to costly lawsuits and penalties. Proper policy administration helps avoid misunderstandings and potential disputes with employees.
Clarity and Consistency: The rules surrounding concurrent leave promote consistency in how leave is managed across the workforce. It prevents a situation where some employees might receive greater protections than others for similar circumstances simply because of different leave designations, provided the initial reason for leave is FMLA-qualifying.

In conclusion, while both LWOP and FMLA involve unpaid time off, they are not interchangeable. The FMLA provides a specific set of rights and protections for qualifying medical and family needs. Employers are generally required to treat any LWOP taken for an FMLA-qualifying reason as FMLA leave, running it concurrently with the employee's FMLA entitlement. Employees should consult their HR department or legal counsel if they have questions about their specific leave situation to ensure they receive the full benefits and protections afforded by law.