How to Apply for FMLA Leave from a Texas Employer

The Family and Medical Leave Act (FMLA) is the only family-leave right most private-sector workers in Texas have, and it is administered by the U.S. Department of Labor rather than by any Texas office. This is one of the procedures covered in employment law in Texas. This article walks through how to apply: confirming that you are eligible, giving your employer notice, completing the medical certification, and understanding what the employer must do once you ask.

Who qualifies for FMLA leave in Texas

Texas has no state family-leave law, so the federal FMLA sets both the floor and the ceiling. The Texas Workforce Commission states plainly that Texas does not have an FMLA-style law, so only the federal law applies. There is no separate Texas application, agency, or benefit to pursue.

Two separate tests decide whether FMLA applies to your situation. The first is whether the employer is covered. FMLA reaches private employers that had 50 or more employees for at least 20 workweeks in the current or previous calendar year, along with all public agencies and public and private schools regardless of size, under 29 CFR 825.104.

The second test is individual eligibility. Under 29 CFR 825.110, an employee qualifies only after having worked for the employer for at least 12 months, having worked at least 1,250 hours during the 12 months immediately before the leave, and being based at a worksite with 50 or more employees within 75 miles. The 1,250-hour threshold works out to roughly 24 hours a week across a year, so many part-time employees do not reach it.

What FMLA leave covers

An eligible employee can take up to 12 workweeks of leave in a 12-month period for a defined set of reasons: the birth of a child and bonding within the first year, the placement of a child through adoption or foster care, a serious health condition that prevents the employee from doing the job, caring for a spouse, child, or parent with a serious health condition, or a qualifying exigency tied to a family member’s military deployment. These grounds are set out in 29 U.S.C. § 2612 and described in 29 CFR 825.100.

A separate, larger entitlement applies to military caregivers. An employee caring for a covered servicemember with a serious injury or illness can take up to 26 workweeks in a single 12-month period, a figure that also caps the total of all FMLA leave in that period. The Texas Workforce Commission summarizes both the 12-week and the 26-week military caregiver leave for employers in the state.

FMLA leave is unpaid, though an employer can require, or an employee can choose, to run accrued paid leave at the same time. Leave can be taken all at once or intermittently when medically necessary, and every block of intermittent leave counts against the same 12-week total.

How to request leave from your employer

There is no government form to file and no state office involved. The request goes to the employer, usually through a manager or the human-resources department. You do not have to name the FMLA to start the process; giving enough information for the employer to recognize that the absence may be FMLA-qualifying is what triggers the employer’s duties.

1. Tell your employer you need leave

   Notify your employer as early as you reasonably can, and explain the general reason: a new child, your own medical condition, or a family member’s condition. You do not have to use the words “FMLA.” Follow the employer’s normal call-in and leave-request procedures at the same time, because those still apply.

2. Get the certification forms

   For leave based on a serious health condition, the employer can require a medical certification from the relevant health care provider. The Department of Labor publishes optional model forms for this: WH-380-E for the employee’s own condition and WH-380-F for a family member’s condition. The employer may use these or its own equivalent.

3. Return the certification on time

   Have the health care provider complete the certification and return it to the employer within the deadline the employer sets, which must be at least 15 calendar days. If the form is incomplete, the employer must identify what is missing and allow at least seven calendar days to fix it.

4. Keep records and stay in contact

   Keep copies of every notice and form, and note the dates. Employers may require periodic status updates during the leave and reasonable notice of an intended return date, so staying in contact protects the job-restoration right.

Notice and certification deadlines

Timing rules cut both ways, and missing them can delay the start of leave. When the need for leave is foreseeable, such as a scheduled surgery or an expected birth, 29 U.S.C. § 2612(e) requires at least 30 days’ advance notice. When 30 days is not practicable, notice must be given as soon as practicable, generally the same or next business day after the need becomes known.

What your employer must do after you apply

The employer carries most of the paperwork burden once leave is requested. Within five business days of learning that leave may be FMLA-qualifying, the employer must give the employee an eligibility notice and a rights-and-responsibilities notice, and once it has enough information it must give a written designation notice stating whether the leave counts as FMLA. These timing duties are set out in 29 CFR 825.300.

During the leave, the employer must maintain the employee’s group health coverage on the same terms as if the employee had kept working, and the employee continues paying any share of the premium. At the end of leave, the employee generally has the right to return to the same job or an equivalent one with the same pay, benefits, and conditions, under 29 U.S.C. § 2614. Taking FMLA leave cannot be counted as an absence under a no-fault attendance or point system.

If your employer denies leave or retaliates

FMLA makes it unlawful for an employer to interfere with, restrain, or deny FMLA rights, or to fire or otherwise punish an employee for using or requesting leave. The enforcement framework, including the right to file a complaint or sue, is in 29 U.S.C. § 2617.

Because FMLA is one of the federal limits on at-will employment in Texas, a covered employer cannot rely on the state’s at-will rule to justify firing someone for taking protected leave. Terminating an employee for requesting or using FMLA leave can amount to wrongful termination in Texas and can support a separate claim. An employee who believes leave was wrongly denied or that retaliation occurred can file a complaint with the U.S. Department of Labor’s Wage and Hour Division, the agency that enforces the FMLA nationwide, including in Texas. The complaint procedures and the agency’s investigative authority are described in 29 CFR 825.400. A complaint generally must be filed within a reasonable time, and the statute allows a lawsuit within two years of the violation, or three years if the violation was willful. A worker whose job ends after leave is exhausted can separately review how to apply for unemployment benefits in Texas.