How does FMLA work in Texas?

In 1993, the Family and Medical Leave Act (FMLA) was introduced as a federal law in the United States. It allows qualified employees to take 12 weeks of job-protected, unpaid leave within a 12-month period. Employees use FMLA leave for a number of reasons, such as to recover from an illness or to look after a family member who is unwell.

In this article, we’ll look at FMLA in Texas. Does FMLA work differently in Texas compared to other states? What should HR practitioners and employees in Texas keep in mind? What changes are coming in the Lone Star State that could affect FMLA?

Let’s take a look at FMLA and how it applies in Texas.

How does FMLA work in Texas?

FMLA in Texas works mostly the way it would in other states. Texas’s FMLA allows employees who meet the eligibility requirements the usual 12-week accrued unpaid leave within a 12-month period. Eligible employees are those who worked for the same employer for at least a year and worked at least 1,250 hours within the previous recorded year.

The condition of working for at least a year does not have to be consecutive, so this leave can also be granted to temporary or seasonal employees who have accumulated a total of a year’s worth of work over several years, with at least 1,250 work hours put in in the previous 12 months.

The employee must work at a location that has at least 50 employees within 75 miles of the worksite, in any direction.

Family and medical leave can work a little differently in the state of Texas. While the state does abide by FMLA laws at the federal level, Texas does not offer its own comprehensive family medical leave program. However, Texas has leave protections in place for employees who care for sick foster children.

For a bigger-picture view of the FMLA, read our explainer on what it is, who is eligible, and what your responsibilities are.

How many days can you call in sick without a doctor’s note in Texas?

You can call in sick without submitting a doctor’s note three consecutive times. Should you miss work and call in sick a fourth time, the company has the right to ask for a doctor’s note detailing the ailment.

Do you get paid with FMLA in Texas?

The short answer is no, since FMLA is a form of unpaid leave. However, if employees need to go on FMLA leave and would prefer not to go without pay, there are some legal ways to get paid while on FMLA leave.

Is there a way to get paid while on FMLA even if it’s unpaid?

Yes. While FMLA is generally an unpaid leave, there are a few routes an employee can take to still receive some money.

An employee wishing to go on FMLA leave may consult with their company’s HR department. The HR department can help them to find ways of getting paid legally while on FMLA leave.

Some employers may offer employee benefits, health insurance, or disability programs that can subsidize them while they are on FMLA leave.

Plans or programs like these can come with their own eligibility requirements. The employee should read the provisions of the plans, and make sure they meet the requirements before signing up.

Can an employee “moonlight” or work at another job while on FMLA in Texas?

It may be argued that it’s possible for employees to work at another job. The FMLA does not explicitly say that an employee cannot do that while on FMLA leave. However, it is at the employer’s discretion (section 825.312(h)) to have a policy in place prohibiting any employee from taking on another job while on FMLA leave.

Can you be fired if FMLA is denied?

No. Getting fired or even at least getting demoted after an employee files for FMLA leave is seen as a retaliatory action on the employer’s part. This is explicitly discouraged and penalized by the US Department of Labor.

It’s also against US labor laws for an employer to deny any eligible employee’s request for FMLA leave, especially if the request was filed properly, i.e., in accordance with FMLA rules and regulations and meeting FMLA requirements in Texas.

Can I be fired if I had surgery?

The simple answer is no, as this could constitute a case of wrongful termination. An employer does, however, have the right to terminate that position and hire someone else who can take over and fulfill the employee’s duties as they recuperate.

If that’s the case, the employer is obligated to re-hire the employee and place them in a new and equivalent role, with similar pay and responsibilities.

If an employee doesn’t qualify for FMLA leave but takes time off anyway to heal from surgery, the company has the right to terminate employment.

Can you be terminated while on FMLA in Texas?

Yes, it’s possible, but only under certain conditions. For example, employers can terminate someone’s employment while they’re on FMLA leave if their entire department or division is terminated.

The employer also has the prerogative to terminate similarly situated employees, because no one employee is being singled out. An entire department or division is being terminated, regardless of whether its members are on leave or not.  

Exploring #FMLA: Can you be fired legally while on leave? 🤔💼 pic.twitter.com/pYLn0Muv5w

— LawLinq (@lawlinq) August 25, 2023

What are FMLA violations by employers in Texas?

Some FMLA violations are preventing an employee from using their FMLA leave when they’re eligible, changing their work hours, and documenting their FMLA leave as unexcused or unpermitted leave.

Other common FMLA violations can include penalizing workers who request FMLA leave by denying them promotions, outright firing them or denying them the right to file FMLA complaints. These are seen as retaliatory actions by employers against employees.

How long does FMLA protect your job in Texas?

As with most other states, 12 weeks is how long FMLA in Texas allows employees to take FMLA leave within a 12-month period.

The 12 weeks begin on the day that the FMLA leave officially starts – this does not include weekends and holidays.

FMLA leave go for as long as 26 weeks, but only if the employee is on “military caregiver leave”, meaning taking care of a relative in the military who has had a serious illness or injury.

Does Texas give paid leave to employees?

The state of Texas does not legally require private companies to provide sick leave or vacation leave, whether paid or unpaid.

Paid or unpaid leaves at private companies are offered at their discretion, and some Texas cities like San Antonio and Austin have recently decreed their own paid sick leave laws. By September 2023, the Texas Regulatory Consistency Act is expected to pass and override these laws.

What conditions qualify for FMLA leave in Texas?

For an employee to qualify for FMLA leave in Texas, their employer must first be covered by FMLA.

FMLA only applies to employers if they’re a public agency, such as a school district or local government employer.

It applies to private companies only if they have had at least 50 employees for 20 weeks straight in the past year.

An employee qualifies for FMLA leave in Texas if they’ve worked for the same employer for at least a year and worked at least 1250 hours.

They must also meet the eligibility requirements set by the US Dept. of Labor.

What happens if an employee is not eligible for FMLA leave in Texas?

If they fail to meet eligibility yet still choose to go on FMLA leave, that employee risks losing their job.

Do guardians have the right to FMLA leave even if they’re not the parents?

Yes. Court-appointed guardians have the legal right to take FMLA leave to care for their stepchildren, adopted, and foster children.

Legal guardians perform many of the same duties and responsibilities expected from a parent. They also provide these children with the same financial security. The US Department of Labor considers the legal status of guardians as loco parentis, or “acting in the place of a parent”, so they are afforded the same rights as if they were parents.

The FMLA is a federal law that applies across all states. We examined how it works in Texas and, while there are slight nuances within cities, that is bound to change when a state law takes effect soon. All this proves how important it is to stay updated on laws that affect employees. Sign up for our newsletter to keep abreast of the latest developments in the world of HR.

What do you think of how FMLA works in Texas? Is it time for an update to this federal law? Share your thoughts in the comments below: