Here, learn about the Family and Medical Leave Act (FMLA). This article explains what the FMLA is, how the law applies in Texas, how to know whether you can take FMLA leave, how to request FMLA leave, and what options you might have if the FMLA does not cover your employer.
Revised by TexasLawHelp.org on February 27, 2023.
What is the Family and Medical Leave Act (FMLA)?
The FMLA is a federal law that lets certain employees take leave from work for family or medical reasons. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.
An eligible employee can take up to 12 weeks of leave during a 12-month period. In some situations, an employee may take 26 weeks of leave during a 12-month period, as discussed below.
Employers do not have to pay employees during their leave. They do have to meet the following requirements:
Your job is protected while you are on leave. Your employer must give you your job back or provide you with a similar job when you return to work. A “similar” job has the same pay, benefits, and duties as your previous job.
Your employer must provide health insurance coverage while you are on leave. It must be the same coverage you would have if you were still at work.
Do Texas laws require employers to provide family and medical leave?
Employers in Texas must adhere to the federal FMLA.
Texas labor laws do not require employees to provide employees with family and medical leave. However, if an employer agrees to offer paid or unpaid leave in a written policy or agreement, the leave is enforceable by Texas law.
How do I know if I can take FMLA leave?
To see if you can take leave under the FMLA, you must answer three questions:
Does the FMLA cover my employer?
Am I eligible for FMLA leave?
Do I have a qualifying reason to take FMLA leave?
The next few sections address each of these questions.
Does the FMLA apply to my employer?
The FMLA applies to all public agencies. This includes most federal, state, and local government employers and school districts.
For private-sector employers, whether the FMLA applies depends on the number of employees. The law covers employers who had 50 or more employees for at least 20 weeks during the past year.
Am I eligible for FMLA leave?
Employees of covered employers have to meet the following criteria:
You must have worked for your employer for a total of at least 12 months.
During the 12-month period before you want to start leave, you must have worked at least 1,250 hours. This equals 31¼ 40-hour weeks.
Your employer must have at least 50 employees working within 75 miles of your workplace.
What are the qualifying reasons for leave under the FMLA?
The FMLA allows eligible employees to take leave because of their own health or a family member’s health. For more information, visit Qualifying Reasons for Leave under the Family and Medical Leave Act, provided by the DOL.
Birth and Bonding
An employee can take FMLA leave to give birth to a child. Either parent can take FMLA leave to bond with their newborn child. A parent must take this type of leave within 12 months after the child’s birth.
In most cases, an employee must take this type of leave all at once. If they are taking the full 12 weeks of leave, they must take 12 consecutive weeks off from work. An employer can approve a request to take intermittent leave, such as taking off every other week.
For more information, visit Taking Leave from Work for Birth, Placement, and Bonding with a Child under the FMLA, provided by the DOL.
Adoption or Foster Placement and Bonding
This type of leave is similar to FMLA leave to bond with a newborn child. The leave must be completed within 12 months after the adoption or foster placement. If their employer agrees, an employee can take intermittent leave from work. An employee’s leave can begin before the adoption or foster placement if they need time to prepare.
Serious Health Condition
An employee can take FMLA leave if they have a serious health condition. A health care provider must have found that the health condition either prevents the employee from working at all, or keeps them from performing an essential part of their job.
This could involve an injury that requires the employee to remain in the hospital. It can also involve an illness that requires regular medical treatment, such as chemotherapy for cancer. An employee who must be absent from work for medical treatment cannot perform an essential function of their job.
An employee can take FMLA leave intermittently for a serious health condition. They might be able to work between treatments, for example. The employee must consult with their employer to find the best way to schedule leave time.
For more information, visit Taking Leave from Work When You or Your Family Member Has a Serious Health Condition under the FMLA, provided by the DOL.
Family Member’s Serious Health Condition
An employee can take FMLA leave to care for a spouse, parent, son, or daughter with a serious health condition. For parents and children, this includes biological relationships, adoptive relationships, stepparents and stepchildren, foster parents and children, legal guardians and their wards, and other “in loco parentis” relationships where someone provided a child with daily care and support.
The FMLA’s definitions of parents and children do not include “in-law” relationships, such as a mother-in-law or son-in-law.
In cases involving sons or daughters who need help, leave is available for serious health conditions if the child is under 18. A parent can take FMLA leave for a son or daughter who is 18 or older and “incapable of self-care because of a mental or physical disability.”
Military Family Member on Active Duty
An employee with a family member on “covered active duty” in the U.S. Armed Forces can take FMLA leave for “qualifying exigencies.” The family member could be a spouse, son, daughter, or parent.
For more information, visit Qualifying Exigency Leave under the Family and Medical Leave Act, provided by the DOL.
Military Family Member’s Serious Injury or Illness
An employee may be able to take up to 26 weeks of FMLA leave to care for a military family member with a serious injury or illness. The relative must be a “covered servicemember” or a “covered veteran.”
The employee must be the servicemember’s spouse, parent, son or daughter, or the “next of kin.”
For more information, visit Military Caregiver Leave for a Current Servicemember under the Family and Medical Leave Act or Military Caregiver Leave for a Veteran under the Family and Medical Leave Act, provided by the DOL.
What conduct does the FMLA prohibit?
The FMLA protects employees’ rights to leave by prohibiting various actions by employers. The DOL investigates alleged violations by employers, and it may take action to enforce the law. Employees may also file lawsuits against employers that violate their rights.
Employers may not do any of the following under the FMLA:
Interfere with an employee’s use of FMLA leave;
Discourage an employee from taking leave;
Coerce or intimidate an employee into not using leave;
Fire an employee for using leave;
Count leave time against an employee’s work attendance;
Adjust an employee’s work schedule in order to prevent their eligibility for leave;
Refuse to allow leave that an employee has earned;
Refuse to reinstate an employee in their previous job, or a similar job, at the end of their leave; or
Take other adverse actions against an employee because they took FMLA leave.
How do I request FMLA leave?
If you are planning to take FMLA leave, you should:
Provide at least thirty days written notice to your employer prior to taking leave. In circumstances where such notice is not possible, you should provide notice of the need for FMLA leave as soon as possible.
Provide medical proof of the need for FMLA leave. Note, your employer may request second or third medical opinions at the employer’s expense.
Make arrangements to ensure that your benefits are not interrupted while on FMLA leave, and address issues regarding the use of accrued paid time off, sick leave, disability leave or other leave that the employer may require you to exhaust prior to taking, or may run concurrently with, FMLA leave.
Be aware that employers may also require an occasional “check-in” to verify your FMLA status and intent to return to work.
What are my employer’s obligations once I return from FMLA leave?
Generally, at the conclusion of a qualified leave period the employer must reinstate you to your former or equivalent position, with the same terms and benefits.
Can my employer retaliate against me for taking FMLA?
No. An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.
What if I’m not covered by FMLA?
Talk with your employer to see what options you might have, such as using sick or vacation time. Ask your employer if short-term disability is an option. Short-term disability insurance pays a percentage of your earnings. Note that it generally only applies to the employee’s illness or injury, and does not apply to illness or injury of family members.
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