The Family and Medical Leave Act (FMLA) is a federal law providing eligible employees with job-protected leave for qualifying medical and family reasons. When an employee in Texas takes FMLA leave, they can be terminated, but only under specific and limited circumstances. Termination is illegal if it results from the employee requesting or taking the protected leave, which is considered FMLA retaliation. A lawful termination must be for a legitimate, non-retaliatory business reason that would have occurred even if the employee had not been on leave.
Understanding FMLA and Job Protection Rights
The FMLA gives eligible workers up to 12 workweeks of unpaid leave within a 12-month period for reasons like a serious personal health condition, the birth of a child, or caring for a spouse, child, or parent with a serious health condition. To qualify, an employee must have worked for a covered employer for at least 12 total months and logged a minimum of 1,250 hours in the preceding 12 months. A covered employer is typically a private company with 50 or more employees within a 75-mile radius, or any public agency or school.
The law’s central protection is the right to job restoration upon returning from leave. This means the employer must reinstate the employee to the same position they held before the leave, or to an equivalent position with identical pay, benefits, and terms of employment. The FMLA protects the right to take leave and return to work, but it does not provide immunity from adverse employment actions unrelated to the leave itself.
When Termination is Legal During FMLA Leave
An employer can lawfully terminate an employee while they are on FMLA leave if the decision is based on a reason independent of the employee taking the leave. The employer must prove that the termination would have occurred regardless of the employee’s absence. This legal standard places the burden on the employer to demonstrate the decision was not retaliatory.
Mass Layoffs or Reductions in Force
An employee on protected leave can be included in a mass layoff or a reduction in force (RIF) if their position is eliminated as part of a broader, non-discriminatory business decision. If the RIF criteria, such as seniority or department closure, would have resulted in the employee’s termination had they been actively working, the termination is permissible. The employer must show that the selection process was consistent and applied uniformly to all employees, not just those on leave.
Pre-existing Performance Issues
Termination is lawful if it is based on poor performance or misconduct documented and known to the employer before the employee began FMLA leave. Taking FMLA leave does not erase an employee’s disciplinary record or shield them from consequences for issues that arose before the leave period. For instance, if an employee was already on a formal performance improvement plan with a termination timeline that expires during the leave, the employer may proceed with the termination.
Fraud or Misuse of FMLA
If an employer discovers that an employee obtained FMLA leave through dishonesty or is misusing the protected time off, the employer can legally terminate them. Examples of misuse include providing false medical certification or engaging in activities inconsistent with the stated reason for the leave. The employer must have concrete evidence of fraud or misuse, as suspicion alone is not a sufficient basis for termination.
Key Employee Exception
Under a specific exception, an employer can deny job restoration to a “key employee” if reinstating them would cause “substantial and grievous economic injury” to the company’s operations. A key employee is defined as a salaried, FMLA-eligible employee who is among the highest-paid ten percent of all employees working within 75 miles of the worksite. The employer must notify the employee of this status and the potential for denial of restoration when leave is requested. The economic injury must be caused by the act of restoration itself, not by the employee’s absence during the leave period.
Illegal Termination: FMLA Interference and Retaliation
The FMLA prohibits employers from engaging in two types of illegal conduct: interference and retaliation. FMLA interference occurs when an employer prevents an eligible employee from exercising their rights under the Act. This includes refusing to authorize a valid leave request, discouraging the use of FMLA rights, or manipulating work hours to avoid FMLA responsibilities.
FMLA retaliation refers to an adverse action taken against an employee specifically because they requested or took FMLA leave. This punitive action, such as demotion, pay reduction, or termination, occurs after the employee has exercised their right. To establish a successful claim, the employee must demonstrate a causal link between the protected FMLA activity and the adverse action, such as termination occurring immediately after the leave without prior performance issues.
The employer’s stated reason for termination must not be a mere pretext for punishing the employee for taking time off. If the employee can show that the employer’s non-retaliatory reason is false, the termination may be deemed illegal.
The Role of Texas At-Will Employment
Texas operates under the doctrine of at-will employment, which generally allows an employer or employee to terminate the employment relationship at any time for any reason, or no reason at all. This doctrine provides employers with significant latitude in making termination decisions, but it does not permit termination for an illegal reason.
The FMLA, as a federal law, establishes a clear exception to the at-will doctrine in Texas. Federal protections against retaliation override the state’s at-will status when the reason for termination is connected to the employee exercising their FMLA rights. Therefore, an employer cannot use the at-will designation to justify firing an employee if the true motive is to punish them for taking protected leave.
Steps to Take If You Are Terminated
If an employee believes their termination while on FMLA leave was unlawful, they should take specific action to protect their rights. The first step is to diligently document everything, including the termination notice, any prior performance reviews, all FMLA-related communications, and the names of individuals involved in the decision. Detailed documentation is necessary for building a potential case.
The employee can then file a complaint with the U.S. Department of Labor (DOL) Wage and Hour Division. The DOL is responsible for enforcing the FMLA and can investigate the claim without cost to the employee.
Finally, consult with an employment law attorney who specializes in FMLA and Texas employment law. An attorney can evaluate the circumstances, advise on the strength of a potential wrongful termination lawsuit, and guide the employee through the legal process.