Maternity and Paternity Leave Rights in Texas

Although Texas employees might be eligible for FMLA leave, no state law provides for additional leave. Here are your rights.

By , J.D. · UC Berkeley School of Law

Texas, like most other states, protects employees from pregnancy discrimination. Under state and federal laws, your employer can't use your pregnancy as a reason to:

  • fire you
  • discipline you, or
  • otherwise, treat you differently.

Under federal and Texas maternity rights laws, pregnant employees are entitled to be treated just as an employer treats other employees who are temporarily unable to do their jobs. For example, if your company allows employees to take time off for temporary disabilities, like broken bones, it must also allow time off for employees who are temporarily disabled by pregnancy or childbirth.

Unfortunately, Texas doesn't have maternity or parental leave laws. But the federal Family and Medical Leave Act (FMLA) provides for parental leave for covered employees.

Here's what you need to know about using the FMLA to take maternity or paternity leave in Texas.

Using FMLA Leave in Texas for Maternity Leave

The FMLA gives eligible employees the right to take up to 12 weeks off in a 12-month period for certain health and caretaking needs, including for the following:

  • pregnancy-related issues (like basic prenatal care)
  • recovery from childbirth, and
  • parental leave.

If you're eligible for FMLA leave, and you use it to take maternity leave for the end of your pregnancy and childbirth, your employer has to give you your job back when you return from leave (more on this below).

You can use up to 12 weeks of unpaid leave total—whether you use that time off for pregnancy disability or parental leave. For example, if you take leave because you can't work for the last two weeks of your pregnancy, you'd have ten weeks of FMLA leave left to use after having your baby. (29 U.S.C. 2601, et seq.)

But not all companies or all employees are covered by the FMLA.

Which Employers Are Covered by FMLA in Texas?

An employer must comply with the FMLA if it has at least 50 employees for at least 20 weeks of the current calendar year or the calendar year before that. The 20 weeks don't have to be consecutive.

Independent contractors don't count toward the total, but all other employees do, including:

  • part-time employees
  • full-time employees, and
  • employees who are on leave and expected to return to work.

FMLA Eligibility in Texas

To be eligible for FMLA leave, you must work for a covered employer, and all of the following must be true:

  • You've worked for your employer for at least 12 months before the date your leave will start. These months don't have to be consecutive, but your employer doesn't have to count any time you worked before a break in service of seven years or more.
  • You've worked at least 1,250 hours (about 24 hours per week) for your employer over the 12 months immediately before the start of your leave.
  • The employer has at least 50 employees within a 75-mile radius of your worksite. (Small groups of employees working at satellite offices might not be eligible to use the FMLA, even if the company employs thousands nationwide.)

Maternity Leave Under Pregnancy Discrimination Laws

If you don't qualify for FMLA leave, there are two federal anti-discrimination laws that might help you.

The Pregnancy Discrimination Act (PDA) and the Pregnant Workers Fairness Act (PWFA) address the needs of pregnant employees in the workplace and might allow you to take time off work due to pregnancy or childbirth. Both laws apply to employers with at least 15 employees.

The PDA doesn't require employers to give pregnant workers maternity leave. But if you can't work because of pregnancy, the law requires your employer to treat you the same as employees who are temporarily disabled for other types of illnesses and injuries. So, if your employer would allow another worker to take time off for a broken arm or a stroke, you must also be allowed to take time off for pregnancy if your doctor says you can't work.

The PWFA protects your right to take time off work for pregnancy when it's medically necessary. The PWFA requires covered employers to provide reasonable accommodations when an employee needs them due to pregnancy or childbirth. Under this law, accommodations can include time off work.

Parenting and Paternity Leave in Texas Under the FMLA

Although some states have their own parental leave laws, Texas doesn't have a family leave law. But if you're eligible for FMLA leave, you can take up to 12 weeks of parental leave to bond with your new child. This leave is available equally to mothers and fathers and all new parents, whether they have a:

  • biological child
  • adopted child, or
  • foster child.

Do You Have to Take Parental Leave All at Once?

You have one year to use your parental FMLA leave after your new child arrives. If, like many new parents, you wish to take your parental leave incrementally, you‘ll have to get your employer's permission. For instance, you might want to:

  • return to work part-time for a while, or
  • take some parental leave when your child arrives, return to work full time, then take more leave when your child's other parent returns to work.

No matter how you wish to divide your time off, your employer must agree to it. Unlike FMLA medical leave, which allows employees to take time off in bits and pieces if medically necessary, you must take parenting and paternity leave all at once unless your employer agrees to let you break it up.

Does Your Employer Have to Pay for Health Care?

While you're out on FMLA leave, your employer must continue your health insurance as if you were still working—meaning your employer must continue to pay its share of the premium. If you regularly foot part of the bill for your health care premiums, you'll have to keep making those payments while on leave. (If you usually pay your share through payroll deductions, you might have to make other arrangements to pay your part of the payment.)

Can You Get Paid for Parenting or Paternity Leave in Texas?

Texas doesn't have a paid family leave act, and FMLA leave is unpaid. But you might choose to use other accrued paid leave (or your employer might require you to use it) during your FMLA leave. For example, if you have four weeks of accrued vacation time, you can use that to get paid for four weeks of your FMLA leave.

But under the Texas Payday Law, you can use accrued leave only if your reason for leave is allowed by your employer's policy. For instance, if you physically can't work for two weeks after giving birth, you're probably eligible to use sick leave for that time off. But once you're physically able to work again, you might not be able to use any more sick days during your FMLA leave—depending on your employer's sick leave policy.

Your employer might also offer maternity and paternity leave benefits or parental benefits. Talk to your HR representative or manager (and check your employee handbook) to find out what types of leave are available to you.

And if your employer offers temporary or short-term disability insurance, it should cover pregnancy and childbirth. (But keep in mind some short-term disability plans treat pregnancy as a pre-existing condition for the first nine months that you have a plan, so you need to be covered before pregnancy begins.)

Learn more about how short-term disability insurance works for pregnancy and childbirth.

How FMLA Leave Works If Both Parents Work for the Same Employer

If you and your child's other parent both work for the same company, you might be entitled to less time off. Here's how it works:

FMLA parenting leave if you're not married. If you and your child's other parent aren't married to each other, you're each entitled to a full 12 weeks of FMLA leave for parenting.

FMLA paternity leave if you're married. If you and your child's other parent are married to each other, you're entitled to a total of 12 weeks of parental leave, not 12 weeks each. And you're each entitled to take the rest of your 12 weeks of leave for other purposes.

For example, if your spouse needs three weeks of FMLA leave during their pregnancy, they have nine weeks of FMLA leave available for parental leave. But if they use the full nine weeks, you can take only three weeks of FMLA paternity leave. But you will still have nine weeks of FMLA leave available for other purposes, such as a serious health condition.

Returning to Work in Texas After FMLA Leave

When your FMLA leave is over, you're entitled to be reinstated to the same position. If your position is no longer available, your employer must restore you to an equivalent position—one that's nearly identical to your former position in every important way, including:

  • pay
  • responsibilities, and
  • benefits.

Some new parents decide not to return to work following their parental leave. If you're one of them, your employer isn't legally obligated to reinstate you once you give notice that you aren't going to return.

Your employer can also require you to repay the share of your health insurance premiums the company paid while you were on leave—but only if your decision not to return to work was voluntary. For example, if you can't return to work because your child has a serious health condition or your spouse was transferred to another state for work, then you don't have to reimburse your employer.

Learn more about your job protections when returning to work after FMLA leave.

Updated August 4, 2023

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