Maternity Leave Rights in Texas

Although Texas employees may be eligible for FMLA leave, no state law provides additional rights.

By , J.D.
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Texas, like most other states, protects employees from pregnancy discrimination. This means your employer cannot fire you, discipline you, or otherwise treat you differently because of your pregnancy. Under Texas law, 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, it must also allow time off for employees who are temporarily disabled by pregnancy or childbirth.

However, pregnancy discrimination laws don't give employees the right to take maternity or parental leave. No Texas law requires employers to give this type of leave, either. But the federal Family and Medical Leave Act (FMLA) provides for parental leave, if both you and your company are covered by the law.

FMLA Basics

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 leave for pregnancy-related issues (including basic prenatal care) and parental leave. Eligible employees are entitled to 12 weeks of unpaid leave total, whether they use that time off for pregnancy disability or for parental leave. For example, if you are unable to work for the last two weeks of your pregnancy, you would have ten weeks of FMLA leave left to use after having your baby.

Not all companies or all employees are covered by the FMLA, however.

Covered Employers

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 immediately preceding calendar year. The 20 weeks need not be consecutive.

Independent contractors don't count toward the total, but all part-time and full-time employees count, as do employees who are on leave and expected to return to work.

Eligible Employees

To be eligible for FMLA leave, you must meet all three of these requirements:

  • You must have worked for your employer for at least 12 months as of the date when your leave will start. These months need not be consecutive, but the employer doesn't have to count any time your worked before a break in service of seven years or more.
  • You must have worked at least 1,250 hours (about 24 hours per week) for your employer in the 12 months immediately preceding the start of your leave.
  • You must work at a worksite with at least 50 employees within a 75-mile radius. If you are part of a small group of employees that works at a remote satellite office, for example, you might not be eligible to use the FMLA, even if your company employs thousands nationwide.

Parental Leave Under the FMLA

If you are eligible for the FMLA, you may take up to 12 weeks of parental leave to bond with your new child. This leave is available equally to mothers and fathers, and to new parents of biological, adoptive, or foster children.

FMLA leave is unpaid. However, you may choose, or your employer may require you to, use other accrued paid leave 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. However, you may use accrued leave only if your reason for leave is covered by your employer's policy. If, for instance, you are physically unable to work for two weeks after giving birth, you are probably eligible to use sick leave for that time off. However, once you are physically able to work, you might not be able to substitute sick days for your FMLA leave.

While you are out on FMLA leave, your employer must continue your health insurance as if you were still working. This means your employer must continue to pay its share of the premium. If you foot part of the bill, you must continue to make these payments while you are on leave. (If you usually pay your share through payroll deductions, your employer may have to make other arrangements to get your payment.)

You must finish taking your parental FMLA leave within one year after your new child arrives. If, like many new parents, you wish to take your parental leave incrementally, you will have to get your employer's permission. For instance, many parents choose to return to work part-time for a while; some new parents may choose to take some parental leave when the child arrives, return to work full time, then take more parental leave when the child's other parent returns to work. No matter how you wish to divide up your time off, your employer must agree to it. Unlike other types of FMLA leave, which allow employees to take time off in bits and pieces if medically necessary, without their employer's permission, parental leave must be taken all at once unless the employer agrees to a different schedule.

If Both Parents Work for the Same Employer

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

  • If you are married. If you and your child's other parent are married to each other, you are entitled to a total of 12 weeks of parental leave, not 12 weeks each. (The purpose of this odd rule is to avoid creating a disincentive for employers to hire married couples.) However, each of you is entitled to take the rest of your 12 weeks of leave for other purposes. For example, if you need three weeks of FMLA leave during your pregnancy, you have nine weeks of FMLA leave available for parental leave. If you use the full nine weeks, your spouse may take only three weeks of FMLA parental leave. However, your spouse will still have nine weeks of FMLA leave available for other purposes, such as a serious health condition.
  • If you are not married. If you and your child's other parent are not married to each other, you are each entitled to a full 12 weeks of FMLA leave for parenting.

After Your Leave

When your FMLA leave is over, you are entitled to be reinstated to the same position. If your position is no longer available, you must be restored to an equivalent position: one that is 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 are one of them, your employer is not legally obligated to reinstate you once you give notice that you aren't going to return. And, your employer can require you to reimburse it for the share of your health insurance premiums it paid while you were on leave. However, you are required to make reimbursement only if your decision not to return to work was voluntary. If you are unable to return to work (for example, 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 the employer.

For more information, see our article on FMLA leave for pregnancy and parenting.

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