The Family and Medical Leave Act (FMLA) is a federal law that requires employers with at least 50 employees within a 75-mile radius to provide up to 12 weeks of job protected leave (typically unpaid) to certain employees. To be eligible for FMLA leave, the employee must have been employed for at least 12 months and worked at least 1,250 hours during the last 12 months. An eligible employee may take up to 12 weeks of job protected leave due to any of the following reasons:
- Birth of a child or placement of a child for adoption or foster care;
- Caring for a spouse, son, daughter, or parent who has a serious health condition;
- His/her own serious health condition that makes the employee unable to perform the essential functions of his/her job; or
- Any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent who is a member of the military on covered active duty or call to covered active duty status.
Why is the FMLA important for employees?
The FMLA is important for employees in Texas for countless reasons. Most importantly, an employee who takes FMLA leave must be restored to his/her original job (or an equivalent job with equivalent pay, benefits, etc.) upon his/her return to work. The fact that the employee took FMLA leave for any period of time up to 12 weeks cannot be held against the employee. During any period of FMLA leave, an employer is also obligated to continue any group health insurance coverage for the employee.
While many employers offer their own maternity/paternity leave policies, the FMLA goes one step further. When an employee gives birth or has a child, the FMLA allows an eligible employee to take leave of up to 12 weeks from work during which they do not have to worry about their job waiting for them upon their return. For covered employers who do not offer their own maternity/paternity leave, the FMLA still mandates that an eligible employee can take this leave.
How do I take FMLA leave?
If you are needing to take medical leave for yourself, to care for a spouse, child, or parent, or to give birth or care for a baby, the first thing that you should do is request FMLA paperwork from your employer (although it is not required that the employee specifically mention “FMLA” in his/her request). Once this request is made, the employer is required to provide the employee with notice concerning his/her eligibility for FMLA leave, as well as advise the employee of his/her rights and responsibilities under the FMLA. If you are an eligible employee, you will be provided with paperwork that your doctor/medical provider will need to complete outlining your need for the FMLA leave. Once that health care provider certification is submitted, your employer is required to notify you of whether the leave is approved and designated as FMLA leave and the amount of leave that you have been approved for. FMLA leave can be taken in a continuous stretch (for up to 12 weeks in a given year) or on an intermittent basis (e.g. 1 day per week).
What if my employer denies FMLA leave or fires me after taking FMLA leave?
If you believe that you are eligible for FMLA leave and your employer is denying you that right, contact an employment lawyer in your area as soon as possible. You may have a claim for FMLA interference. Not only can an employment lawyer advise you of your rights regarding FMLA leave, but he or she may be able to step in to protect those rights before any employment action is taken against you.
If your employer has failed to restore you to your original (or equivalent) position, or if your employer terminated you during FMLA leave or following your return to work from FMLA leave, contact an employment lawyer in your area as soon as possible. You likely have a claim against your employer for FMLA retaliation, and it is imperative that you have legal representation to advocate for your rights.
