PDF files require Adobe Acrobat Reader for viewing.

Family and Medical Leave Act (FMLA)

  1. FMLA applies to any public or private employer with 50 or more employees, as well as to all public agencies, and public and private elementary and secondary schools, regardless of number of employees.

  2. A covered employer must post a notice in the workplace concerning the FMLA and how employees may qualify under its provisions (click here (PDF) for the official poster from the U.S. Department of Labor). Click here for the Spanish-language poster.

  3. Even though all governmental (public) employers and all elementary and secondary schools are covered employers regardless of how many employees they have, individual eligibility requirements may still render an employee ineligible to take FMLA leave - see the following item.

  4. To be eligible, an employee has to have worked at least 1250 hours within the last 12 months; has to have worked at least 12 months' total time for the employer; and be employed at a facility at which at least 50 employees are employed within a 75-mile radius - due to the 1250-hour requirement, many part-time employees will not be eligible for FMLA leave - however, state FMLA laws may have lower requirements - Texas does not have an FMLA-style law, so only the federal law applies.

  5. Be careful not to promise FMLA leave to an employee who is not eligible, because the company might have to extend such leave anyway if the conditions for equitable estoppel are satisfied (see the discussion of the Minard v. ITC Deltacom Communications case in "Other Types of Employment-Related Litigation" in the outline of employment law issues in part IV of this book).

  6. Time spent in military duty counts toward both the hours worked and tenure requirements - for details, see the article titled "Legal Issues for Military Leave" in this book.

  7. The reason for the absence must be the serious health condition of the employee or of a member of the employee's immediate family; the birth or adoption of a child or the placement of a foster child in the home; or "any qualifying exigency" (which generally means an urgent or emergency situation) associated with the employee's spouse, child, or parent being on active military duty, or having been notified of an impending order to active duty, in support of a contingency operation - see DOL's fact sheet on the new law at https://www.dol.gov/agencies/whd/fact-sheets/28m-fmla-military-family), as well as FMLA regulation 29 C.F.R. § 825.126.

  8. With regard to leave to care for a child's serious health condition, or parental leave for a biological, adopted, or foster child, the term "parent" means father, mother, or anyone else who stands in loco parentis (in the place of a parent) to the child, including same-sex parents (see the DOL FMLA opinion letter AI 2010-3, issued on June 22, 2010).

  9. The employer must make up to 12 weeks of paid and/or unpaid leave during a year available to such an employee.

  10. New military caregiver leave: up to 26 weeks of paid and/or unpaid leave during a year is available to an employee whose spouse, child, parent, or "next of kin" (nearest blood relative) is recovering from a serious illness or injury suffered in the line of duty while on active military duty; the law that created this category of FMLA leave also put an outside limit of 26 weeks of all types of FMLA leave in a "single 12-month period" - see https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections and FMLA regulation 29 C.F.R. § 825.127.

  11. The leave can be all at once or intermittent, even 2 or 3 hours at a time, but intermittent leave all goes toward the 12-week limit.

  12. It is best to give employees prompt written notice that they are on FMLA leave and that they must keep in touch with the employer at regular intervals specified by the employer - the return date can be specified or left open.

  13. FMLA leave cannot be counted against an employee under a "no-fault" or "point system".

  14. Generally, an employer's duty to allow FMLA leave is separate from an employee's duty to follow company policies regarding notice of absences and use of leave. In other words, a company must allow FMLA leave for an employee where its use is warranted, but is allowed to hold an employee accountable for failure to abide by company policies to the same extent that it holds other employees accountable in non-FMLA situations.

  15. Important for compliance with Texas Payday Law limitations on wage deductions: if the employer is to make payments on behalf of the employee to keep the health insurance plan in effect during the FMLA leave, the employer should make sure to have the employee sign a written agreement that any money so paid will be regarded as an advance against future wages owed and will be repaid in installments deducted from future paychecks.

  16. FLSA problem - docking exempt workers for time missed:

    1. Executive-, administrative-, and professional-exempt workers must meet the "salary basis" test - for all employers in the private sector, partial-day deductions from salary will destroy the salary basis for the exemption.

    2. The only exception to that rule is for a situation covered by the FMLA - in that case, hourly docking of pay or leave time would be allowable, but careful documentation must be maintained - this exception only works if the employer, the employee, and the situation are all covered by the FMLA!

Go to the Employer Commissioner's Page
Go to the TWC Home Page