Can My Boss Force Me To Take Unpaid Time Off Work?

In general, if you are an at-will employee, your employer can require anything you agreed to in your employment agreement. Depending on the labor laws in your state and the reason for the unpaid time off, employees may be able to collect unemployment benefits while not working.

This article reviews some reasons an employer can require workers to take unpaid leave and what workers should do when forced out of work. You can also ask an employment lawyer any other questions you have about vacation time, leaves, and furloughs.

Forced Time Off

Employers and employees may negotiate for voluntary unpaid time off. Federal law requires employers with over 50 employees to give eligible workers unpaid time off. The Family and Medical Leave Act (FMLA) gives workers up to 12 unpaid weeks per year to care for family members and themselves.

Whether an employer may require employees to take involuntary unpaid time off depends on state leave laws and the contract or collective bargaining agreement. These techniques should be part of company policy and included in the employee handbook. These involuntary leaves go by different names:

• Temporary layoff
• Unpaid time off
• Forced time off
• Standby
• Furlough
• Partial employment

An employee’s status may affect their eligibility for unemployment benefits. State laws differ on whether a temporary layoff qualifies for unemployment benefits.

Check your state labor agency’s unemployment page for more information on this issue.

Temporary Layoffs

During periods of economic uncertainty, downsizing, or national emergency, businesses may need to temporarily reduce their workforce to keep everyone employed. Employers avoid firing workers outright with the use of temporary layoffs. These layoffs let workers collect unemployment while keeping them on the payroll at zero or reduced hours.

Different states have differing names and requirements for these layoffs.

Standby

Some states, such as Washington, have a "standby" status. The requirements can be complex and usually require a specific return-to-work date. Typical requirements include:

• Worker was a full-time employee before the layoff
• Will be returning to full-time work
• Have a probable return-to-work date of not more than eight to 12 weeks

Standby status waives the job search requirements for unemployment payments. Workers may collect unemployment during the temporary shutdown until they can return to work. The employer must request the waiver for the employees who are on standby. The amount of time allowed for the waiver varies depending on the state and the reason for the shutdown.

Furlough

A furlough is an unpaid leave of absence. Often, the employer and employee agree on the period the employee will be off work. Furloughs are often used as cost-cutting measures when a company or agency runs short of funding and needs to lay off workers temporarily until they locate new sources of money.

During furloughs, employers do not pay workers, but the workers keep their other protections. During furlough:

• Employees keep health insurance and retirement benefits
• Accrual of hours for sick days and vacation time may continue
• Employees may look for other jobs if they wish
• Employees can collect unemployment

In general, furlough means no work hours. If the employee works any time at all, the employer must pay them for the full work period. Depending on the state’s laws, employees may be able to use vacation days and sick time while on furlough.

Partial Employment

In partial employment, an employer may reduce a full-time employee’s status to part-time if the worker will return to full-time within a certain period. These temporary part-time workers may collect unemployment without looking for other work, depending on state laws.

New York allows part-time workers who work less than 30 hours and earn less than $504 per week to collect unemployment. Partial employment allows cash-strapped employers to reduce workers’ pay without risking their employees’ seeking other work.

In all cases of temporary layoffs, employees must still meet their states’ other requirements for unemployment benefits. They must meet residency and length of employment qualifications. In some cases, their employers must request waivers or other permissions for employees.

Forced Time Off Because You Are Sick or Injured

Employees usually have the opposite problem: an employer telling them they must come to work when they’re sick or injured. Since the COVID emergency, more employers have told employees not to come to work when they are sick. A few states, such as California, have mandated paid time off for sick time so that employees do not lose wages if they stay home.

The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave for qualified workers. This job-protected leave allows workers to take time off work for personal medical reasons or to care for a family member with a serious health condition.

If an employer wants an employee to remain home for health reasons, but the company does not offer paid sick leave or other compensation, the employee may want to inquire about state temporary disability benefits. These payments provide partial wage replacement for workers unable to work because of non-work-related injury or illness.

Forced Time Off During Emergencies

During the 2020 COVID emergency, federal and state governments altered unemployment requirements because of the number of workers affected by the government-mandated lockdown. Some of these changes are now part of state laws in the event of other emergency shutdowns. These emergency shutdowns could include widespread natural disasters or another pandemic lockdown. Some of these features include:

• Special unemployment status during the emergency
• Elimination of the usual one-week waiting period to collect unemployment benefits
• Increased benefit amount
• Extended period for collecting benefits
• Waiver of the "seeking work" requirement

In the event of a general or localized emergency shutdown, check the state and federal Department of Labor websites. There may be information about unemployment that applies to your situation.

Concern About Forced Time Off? Contact an Attorney

Standbys, furloughs, and emergency shutdowns are difficult for employers and employees. When an employer needs to stop paying workers but eventually wants them to return, they must handle the situation carefully. Employees should know how long they will be without work and have money to tide them over.

If you’re faced with this situation and need legal advice, talk with an employment law attorney in your area.