For the ten+ years that I’ve been practicing employment law in Texas, I’ve represented employees that were fired for taking a leave of absence from work. Almost all of these cases have been under the Family & Medical Leave Act, although I’ve also represented individuals who had to miss work due to a disability (and were protected under the Americans with Disabilities Act). The first major employment case I worked on involved a long term and faithful employee who almost never missed a day of work. Despite his loyalty and good work for several years, after being sent to the hospital with an acute medical condition, he was immediately fired and replaced. Fortunately, a jury of his peers saw through the employer’s excuse and he was awarded lost wages and liquidated damages. Since that time, I’ve especially enjoyed representing employees in these types of cases. It simply is not fair for a hard working and devoted employee to be fired because that employee misses work due to sickness, adoption, pregnancy, or a disability.
Unfortunately, Texas law does not provide many protections for workers that miss work, even when it is out of their control. Fortunately, there are a few protections which have made a huge difference for employees. Probably the most important law protecting workers who must take leave from work is the Family & Medical Leave Act (“FMLA”). The FMLA, passed in 1993, is a federal law that provides strong protections for certain employees who require a leave of absence from work. However, the law only covers certain employees and employers, so not every employee in Texas will be covered by the FMLA. Generally speaking, to be covered by the FMLA, an employee must:
- Have worked for an employer for at least 12 months;
- Have worked for at least 1,250 hours of service; and
- Work for an employer who employs 50 or more employees within 75 miles of the employee’s worksite.
Please note that the rules for who is covered by the FMLA are very complicated and the factors listed above are not black and white rules. In addition, there are many exceptions to FMLA coverage. To determine if you are eligible under the FMLA you should contact an attorney in Texas that specializes in employment law.
If you are covered by the FMLA, you may be eligible for up to 12 weeks each year for:
- the birth of a son or daughter or to care for them;
- adoption of a son or daughter;
- care of a spouse, parent, or child with a serious health condition;
- a serious health condition that prevents the employee from working;
- leave related to a spouse, child or parent being on active duty with the Armed Forces.
Again, whether or not a specific leave is covered can be very complicated, so to ensure your rights under the FMLA you should contact a Texas employment attorney.
The FMLA, under most circumstances, requires an employer to reemploy an employee following leave to their same position. This means that if you are covered for your leave under the FMLA, your employer cannot fire you, demote you, or move you to another position because of your leave.
For more information on the FMLA and medical leave in Texas, see my webpage on the FMLA.
In most cases, the FMLA is the only law that provides rights for employees to take leave from work. However, in some circumstances, laws that protect against disability discrimination may also provide rights for leave. For example, if you are a covered individual with a disability, an employer may have to provide leave as a reasonable accommodation to your disability.
As may be seen, the law leaves a lot of holes for a large number of employees who are hard-working and dedicated employees but must miss work. It is my hope, given the importance of leave for individuals and families, that Congress and the Texas Legislature will pass more laws that provide protections for employees in this area.
Lastly, please remember that this post and the posts in this blog are not legal advice, and can’t be for the reasons posted in my disclaimer on my website. If you need legal advice for your employment situation, you should contact an employment attorney who can discuss your case and provide you with advice that applies to your situation.
As seen in my website, I am an Austin employment attorney who regularly represents employees in FMLA and other leave cases. If you believe your FMLA or leave rights have been violated, feel free to contact my office for a case review.