How Does FMLA Work in Texas: Eligibility, Pay, and Job Protection

Texas does not have its own family or medical leave law, so how FMLA works in Texas is governed entirely by the federal Family and Medical Leave Act. If you qualify, you get up to 12 weeks of unpaid, job-protected leave in a 12-month period for a serious health condition, to care for certain family members, for the birth or placement of a child, or for a military family need. Your rights are the same in Houston, El Paso, or a small town in the Panhandle.

Who Qualifies for FMLA in Texas

Two sets of thresholds have to be met: one for your employer, one for you.

Covered Employers

Private companies are covered when they employ 50 or more workers during at least 20 workweeks in the current or previous calendar year. Federal, state, and local government employers are covered regardless of size, as are public and private elementary and secondary schools.¹

Eligible Employees

You have to meet all three of the following:

12 months with the employer. The months don’t have to be consecutive, so a break in service with the same company does not necessarily disqualify you.
1,250 hours worked in the last 12 months. That’s about 24 hours a week, which many part-time employees do not reach.
50 employees within 75 miles of your worksite. Your employer must have at least 50 workers in that radius when you request leave.

The 75-mile figure is measured by surface miles over public roads, highways, and waterways, using the shortest route. If no surface route exists, the measurement uses the most common travel method, such as airline miles.²³

The worksite rule is where many Texas employees get caught out. A company can have thousands of employees statewide, but if fewer than 50 of them are within 75 miles of your location, you are not eligible.

Reasons You Can Take FMLA Leave

FMLA leave is available only for specific reasons:

Your own serious health condition that keeps you from doing your job.
Caring for a spouse, child, or parent with a serious health condition. Siblings, grandparents, and in-laws are not covered.
Birth of a child and bonding, taken within one year of birth.
Adoption or foster placement, within one year of placement.
A qualifying exigency arising from a spouse’s, child’s, or parent’s covered active-duty military deployment.

What Counts as a Serious Health Condition

Not every illness qualifies. A common cold or a short bout of flu usually will not. A condition is “serious” if it involves inpatient care (an overnight hospital stay) or continuing treatment by a healthcare provider that meets specific criteria.¹

The most common continuing-treatment test requires more than three consecutive full calendar days of being unable to work or perform daily activities, plus either two or more in-person visits with a provider within 30 days (with the first visit within seven days), or one visit that results in an ongoing treatment plan supervised by a provider.

Some conditions qualify without meeting the three-day test:

Pregnancy and prenatal care, for any period of incapacity.
Chronic conditions like epilepsy, asthma, or diabetes that flare up and require treatment at least twice a year.
Permanent or long-term conditions under ongoing provider supervision, such as Alzheimer’s or a terminal illness, even where treatment may not be effective.
Conditions needing multiple treatments, such as chemotherapy, physical therapy for a severe injury, or dialysis, where missing treatment would likely result in extended incapacity.

Common-Law Marriage and Spousal Leave

Texas recognizes common-law (informal) marriages, and that matters for FMLA. The federal definition of “spouse” includes anyone in a common-law marriage entered into in a state that recognizes them.⁴ If you and your partner have a valid Texas common-law marriage, each of you can take FMLA leave to care for the other, and that stays true if you later move to a state that doesn’t recognize such marriages.

Military Family Leave

With multiple large installations in the state, military exigency leave comes up often for Texas workers. It covers things like short-notice deployment issues, attending military events, arranging childcare, handling powers of attorney and other legal or financial matters, deployment-related counseling, and time with a servicemember during rest and recuperation.⁵

How Much Leave and How the Year Is Counted

FMLA provides up to 12 workweeks of unpaid leave in a 12-month period for the reasons above. A separate, larger allowance applies to military caregiver leave: up to 26 workweeks in a single 12-month period to care for a current servicemember or recent veteran with a serious injury or illness.⁶

The 12-month window can be defined four different ways, and the method your employer picks changes how much leave you have at any moment:

The calendar year, January 1 through December 31, with everything resetting on New Year’s Day.
A fixed 12-month period tied to a fiscal year, anniversary date, or other consistent start.
A forward-rolling period that starts the first time you take FMLA leave.
A backward-rolling period, where each request triggers a look back 12 months to subtract leave already used.

⁶

The backward-rolling method is the most restrictive because it prevents you from stacking leave at the end of one year and the beginning of the next. If you don’t know which method your employer uses, ask HR. It has to be applied consistently across employees.

Taking Leave Intermittently or on a Reduced Schedule

You don’t have to take FMLA in one continuous block. Intermittent leave lets you take time off in separate chunks; a reduced schedule lets you cut back your weekly or daily hours for a stretch. Both are common for treatments like chemotherapy or physical therapy.

When intermittent or reduced-schedule leave is medically necessary for a serious health condition (yours, a family member’s, or a covered servicemember’s), your employer cannot refuse it.⁷ Your employer can temporarily transfer you to an equivalent position that better fits the recurring absences, as long as your pay and benefits stay the same.

The rules shift for leave after the birth or placement of a healthy child. In that case, intermittent or reduced-schedule leave is only available if the employer agrees. If the mother has a serious health condition tied to the birth, or the newborn has a serious health condition, the employer’s agreement is not required.⁷ Military qualifying exigency leave can also be taken intermittently without employer consent.

Getting Paid During FMLA Leave

FMLA leave itself is unpaid, but you may not have to go without a paycheck. If you have accrued vacation, personal, or sick time, you can choose to use it during your FMLA absence. The paid time runs concurrently with your FMLA, so a week of vacation counts as one of your 12 FMLA weeks, not something extra.⁸

Your employer can also require you to use accrued paid leave concurrently with FMLA, even if you would rather save it. Either way, you still have to follow the employer’s usual procedures for the paid leave, such as submitting a request through the normal system. Missing those steps can cost you the paid-leave benefit, but you keep your FMLA protection for the time off.

If you are receiving workers’ compensation benefits or short-term disability payments, the substitution rules are different. Those are already paid leave, so neither you nor your employer can layer more accrued paid leave on top. Your employer can still designate the absence as FMLA running concurrently with your workers’ comp or disability leave, so those weeks count against your 12-week allotment.⁸

What You Keep While You’re Out

Health Insurance

Your employer must keep your group health insurance active during FMLA leave on the same terms as if you were still working. If you normally pay part of the premium through payroll deductions, you are still responsible for that share, and your employer should set up a payment method with you in advance.⁹

You can also drop coverage while on leave. If you do, it must be restored on the same terms when you return, with no new waiting periods, physicals, or pre-existing condition exclusions.

Your Job

When leave ends, your employer must put you back in your original position or an equivalent one with the same pay, benefits, and working conditions. Equivalent means genuinely equivalent. Your employer cannot use your return as a chance to move you to a worse shift, a less desirable location, or a stripped-down set of duties.¹⁰

The Key Employee Exception

There is one narrow exception to the restoration guarantee. A “key employee” is a salaried, FMLA-eligible worker among the highest-paid 10 percent of employees within 75 miles of the worksite. The employer can deny reinstatement to a key employee if bringing them back would cause substantial and grievous economic injury to operations.¹¹

Even then, the employer cannot deny the leave itself, only reinstatement, and only after telling you in writing that it intends to do so and giving you a chance to come back to work. If you stay on leave after that notice, the employer must reassess whether the economic harm still exists at the end of your leave.¹²

Bonuses

Whether you still get a bonus after FMLA leave depends on how the bonus works. If it requires hitting a specific goal such as perfect attendance or a sales target, and your FMLA leave kept you from meeting it, the employer can withhold it. The catch is consistency: the employer has to treat you the same as employees who took non-FMLA leave of a similar type. If other people on approved leave still got the bonus, so should you.¹³

Protection From Retaliation

Federal law makes it illegal for your employer to fire, demote, discipline, or otherwise discriminate against you for requesting or using FMLA leave. It’s also illegal to retaliate against you for filing a complaint about an FMLA violation or taking part in an investigation.¹⁴

Retaliation isn’t always as blunt as being fired. It can look like being passed over for a promotion shortly after returning, being reassigned to undesirable work, or getting a negative review that leans on your absences. If the timing or pattern points to your FMLA leave as the real reason, you may have a claim.

How to Request FMLA Leave

Giving Notice

When the need for leave is foreseeable, such as a scheduled surgery, an expected due date, or planned treatment, you must give your employer at least 30 days’ advance notice. When the timing isn’t predictable, like a sudden medical emergency or an unexpected worsening of a condition, notice must come as soon as practicable. The same “as soon as practicable” standard applies to military qualifying exigencies.¹⁵

You do not have to say the word “FMLA” when you ask. Giving your employer enough information to recognize that the situation may qualify is enough. Being explicit still helps you avoid mixed signals and moves the process along.

What the Employer Has to Do

Once you give notice, your employer has five business days to give you a Notice of Eligibility and Rights & Responsibilities, telling you whether you’re eligible and what documentation you need to provide. After you submit everything, the employer issues a Designation Notice confirming whether the absence is officially FMLA-protected.

Medical Certification

For leave based on a serious health condition, your employer will almost always require a medical certification from your healthcare provider. The Department of Labor publishes standard forms: Form WH-380-E for your own condition and Form WH-380-F for a family member. Employers don’t have to use those exact forms, but they can’t ask for more information than the regulations allow.

You have 15 calendar days from the employer’s request to turn in a complete certification. If your paperwork is incomplete or vague, the employer must tell you in writing exactly what’s missing and give you at least seven calendar days to fix it.¹⁶ That cure period matters. Some employers try to deny leave outright over an incomplete form, but the rules require them to give you a reasonable chance to correct problems first.

Second and Third Opinions

If your employer has reason to doubt your medical certification, it can require you to see a different provider for a second opinion. The employer picks and pays for that provider, including reasonable travel costs, and it can’t be someone the employer regularly uses.¹⁷

If the first and second opinions disagree, the employer can require a third opinion from a provider chosen jointly by both sides. That third opinion is binding. While any of these opinions are pending, you are provisionally entitled to FMLA protections, including continued health insurance.¹⁷

If You Can’t Return to Work

If you use up your FMLA leave and don’t come back, your employer can recover its share of the health insurance premiums it paid to keep your coverage active during your unpaid leave. That can total thousands of dollars, especially on a family plan across the full 12 weeks.¹⁸

The employer cannot recover those premiums if you can’t return because the serious health condition continued or recurred, or because of other circumstances beyond your control, such as being laid off during leave or a spouse being unexpectedly transferred. If you claim a medical reason, the employer can require a medical certification, and you pay for it.

If Your Employer Violates the FMLA

If your employer denies eligible leave, retaliates against you, or otherwise violates the FMLA, you have two paths. You can file a complaint with the Wage and Hour Division of the U.S. Department of Labor, or you can file a private lawsuit in federal or state court.¹⁹

The statute of limitations for a private lawsuit is two years from the last violation, or three years if the violation was willful. Complaints to the Wage and Hour Division should be filed within a reasonable time after you find out about the violation and can be made by phone, mail, or in person at a local office.

If you win, remedies can include lost wages and benefits, actual out-of-pocket costs like paying for your own care, interest on those amounts, and an equal amount in liquidated damages. A court can also order reinstatement or promotion, and your employer is responsible for your attorney’s fees and court costs.²⁰ The liquidated damages provision effectively doubles your recovery. A court can reduce it only if the employer proves it acted in good faith and genuinely believed its actions were legal.

1
eCFR. 29 CFR Part 825 – The Family and Medical Leave Act of 1993
2
U.S. Department of Labor. Family and Medical Leave Act Advisor – Employee Eligibility
3
eCFR. 29 CFR 825.111 – Determining Whether 50 Employees Are Employed Within 75 Miles
4
Federal Register. Definition of Spouse Under the Family and Medical Leave Act
5
U.S. Department of Labor. Fact Sheet 28M(c) – Qualifying Exigency Leave Under the Family and Medical Leave Act
6
U.S. Department of Labor. Fact Sheet 28H – 12-Month Period Under the Family and Medical Leave Act
7
eCFR. 29 CFR 825.202 – Intermittent Leave or Reduced Leave Schedule
8
GovInfo. 29 CFR 825.207 – Substitution of Paid Leave
9
eCFR. 29 CFR 825.209 – Maintenance of Employee Benefits
10
eCFR. 29 CFR 825.209 – Maintenance of Employee Benefits
11
eCFR. 29 CFR 825.217 – Key Employee, General Rule
12
eCFR. 29 CFR 825.219 – Rights of a Key Employee
13
U.S. Department of Labor. Family and Medical Leave Act Advisor – Equivalent Position and Benefits
14
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts
15
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
16
U.S. Department of Labor. FMLA Frequently Asked Questions
17
eCFR. 29 CFR 825.307 – Second and Third Opinions
18
eCFR. 29 CFR 825.213 – Employer Recovery of Benefit Costs
19
U.S. Department of Labor. Enforcement of the FMLA
20
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement