Last updated: 3/23/2022

What to Do If You Need to Take Time Off Work in Texas

Note: This information is not legal advice. For free, confidential advice and information, contact Texas RioGrande Legal Aid at 956-996-8752. If you are not low-income or would like to contact a private lawyer in Texas who represents employees, click here to visit the Texas Employment Lawyers Association website.

Click below to find information on leave rights for Texas workers. (If your issue involves another state, contact a lawyer licensed in that state.) This page doesn’t cover all the rights that apply to workers in Texas, just some of the most common leave rights. For more fact sheets on workers’ rights, click here. 

In general, most employment rights in Texas apply regardless of immigration status. Talk to a lawyer if you need advice about your situation. 

Let’s get started. Why do you need time off work?

The Family and Medical Leave Act (FMLA) is a federal law that allows employees to take up to 12 weeks of unpaid leave in a year for their own serious health condition, to care for their close family members (spouses, parents, and children) with serious health conditions, for the birth or placement (adoption/foster care) of a child, or for some reasons related to active-duty military service. 

• What “serious health conditions” are covered by the FMLA? A “serious health condition” is something that requires an overnight hospital stay, a health condition that causes you or your family member to miss work or school for more than three days and requires a doctor's visit and some ongoing treatment (like prescription medicine), or a health condition that requires more than one doctor visit within a 30-day period. It also includes chronic conditions like diabetes and asthma, and other serious conditions like cancer. If you are not sure whether a particular health condition qualifies, you can talk to an attorney. 

Short-term illnesses that get better independently without medical help (like colds) are usually not FMLA-protected.  

The FMLA also gives you the right to leave related to pregnancy or prenatal care, or time to bond with your baby after the child was placed with you or born, even if there is no serious health condition. Leave to bond with a new child must be taken within a year of the child’s birth or placement. 

• Is COVID-19 a serious health condition? Whether COVID-19 counts as a serious health condition usually depends on how bad the symptoms are. For example, “long COVID” (with symptoms that last for months and require repeated visits to a doctor) should count as a serious health condition. But if you have mild discomfort for a day or two, that is probably not FMLA-protected. 

• What employers have to provide FMLA leave? The FMLA applies to all public (government) employers and private employers with 50 or more employees (within 75 miles of the worksite of the employee who needs leave). 

• How long do you need to work to qualify for FMLA leave? You need to have worked for your employer at least 12 months (does not need to be consecutive) and you need to have worked at least 1,250 hours for your employer in the last year (which works out to about 24 hours per week).  

• Is FMLA leave paid? Generally, no. However, if you have paid leave available through your employer, like vacation or sick leave, you can use up that time.  

• How much leave time do I get under the FMLA leave? Up to 12 weeks in a year.  

• Do I have to take all 12 weeks of leave at once? In most cases, no. You can use most FMLA leave all at once, for a few hours or days at a time, or on a recurring schedule, as needed. But leave to bond with your baby after birth or placement usually has to be used all at once, unless the employer agrees to a different arrangement.

• Who counts as a family member I can take leave to care for? Generally, your spouse, son, daughter, or parent. A son or daughter must be either under 18 or unable to care for themselves because of a disability for you to qualify. Son or daughter includes adopted children, foster children, and stepchildren, as well as any child you have day-to-day responsibilities to take care of (like a grandchild who lives with you permanently).

• Can I keep my health insurance while I’m on FMLA leave? Your employer must continue your health insurance (though you may have to pay the employee’s share of the premium). 

• Do I have a right to get my job back after my FMLA leave is over? Generally, yes; your employer should return you to the same job or an equivalent position when your leave is over. 

• How do I request FMLA leave? For emergency leave, notify your employer you need leave as soon as possible (the same day if possible). For leave that is planned (like a surgery), you must give your employer 30 days’ notice of your need for leave. Notice in writing isn’t required, but it’s a good idea.

You have to give your employer enough facts about your condition so that the employer knows your leave is for a serious health condition or qualifying need (but you don’t have to say “I need FMLA”). 

When you need leave for a serious health condition, follow your employer’s rules for requesting leave. If your employer requests certification from your doctor, you have to provide it by the deadline and pay for it if your doctor charges a fee. 

• What if my employer retaliates against me for taking FMLA leave? If you are written up, demoted, fired, or otherwise retaliated against because you take FMLA leave, you may have a claim to get lost wages, your job back, and other damages under the FMLA. You must file an FMLA claim within 2 years of the employer’s violation of the FMLA. You can contact an attorney for advice. You can also contact the U.S. Department of Labor to file a complaint by calling 1-866-487-9243 or online at https://www.dol.gov/agencies/whd.   

In addition to the FMLA, your employer may also carry short-term or long-term disability insurance, which can provide income if you cannot work because of an injury or illness. Read your employer’s policy and follow their directions to apply for disability payments. 

Some types of leave related to military service are protected under the FMLA. See the section above and this fact sheet from the U.S. Department of Labor.  

In addition to the FMLA, USERRA (the Uniformed Services Employment and Reemployment Rights Act) prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations. It also protects the reemployment rights of individuals who leave their civilian jobs (voluntarily or involuntarily) to serve in the uniformed services.  

For more information on USERRA rights from the U.S. Department of Labor, click here.

A physical or mental disability may count as a “serious health condition” and you could have the right to take leave under the FMLA. Click on the “serious health condition” button above to read about FMLA leave rights. 

You may also have the right to take leave under disability discrimination laws. If you have a physical or mental disability and need leave related to your disability (for example, leave to deal with PTSD, diabetes, epilepsy, or any other disability), the Americans with Disabilities Act (ADA) and Chapter 21 of the Texas Labor Code may require your employer to provide you with unpaid leave as a reasonable accommodation. If you have a disability and your employer is covered by these laws, you have the right to a reasonable accommodation unless the employer can show the accommodation would create an undue hardship (meaning it would be overly expensive or difficult for that employer).  

A reasonable accommodation could include working from home or a reasonable period of unpaid leave. If more than one accommodation could address your needs, you might not be able to choose which accommodation you get at work. But the accommodation your employer chooses must effectively address your disability.  

• Which employers are covered by the ADA? In general, in Texas, only employers who have 15 or more employees (or receive federal funding) are covered by federal and Texas disability rights laws.  

• How do I request leave (or to work from home) as an accommodation under the ADA? Inform your employer of your disability and your need for an accommodation.  

  There are no magic words, but you usually need to let your employer know about your disability and your desire for an accommodation. It helps to put your request in writing, and to use your employer’s form if there is one. It can also help to give a doctor’s letter explaining your condition and need. Even if you do not give a doctor’s letter when making your request, your employer may ask you for medical documentation. If you are also asking for leave under the Family and Medical Leave Act (FMLA), you should make any request for a reasonable accommodation separate from any FMLA request or FMLA forms. 
  
  For more information, see this fact sheet on disability discrimination and requesting an accommodation.  

• My employer already has a policy about unpaid leave or working from home, but I am not eligible. Can I still request leave as a reasonable accommodation? Yes. The ADA requires covered employers to change their usual policies if doing so would be a reasonable accommodation (and not an undue hardship on the employer).  

• My disability puts me at higher risk if I get COVID-19. Do I have the right to work from home or receive unpaid leave as a reasonable accommodation during the pandemic? You have the right to request those accommodations. Whether your employer has to provide them will depend on whether it would create an undue hardship.  

Also, unlimited leave is usually not a reasonable accommodation under the ADA.  

• What if my employer denies my reasonable accommodation request, or I’m disciplined or lose my job because of my disability or my need for leave? You may have a claim to get your lost wages, your job back, and other damages. You must file a charge of discrimination quickly—in Texas, usually within 180 days (for state law claims) or 300 days (for federal claims). Employees of the federal government have much shorter deadlines to file a complaint and must take action within 45 days (see this information page for federal employees). You can contact an attorney for advice. You can also file a complaint of discrimination on your own by calling 1-800-669-4000 or file online.  

If you or a member of your family has a bad case of COVID-19, that may count as a “serious health condition” and you could have the right to take leave under the FMLA. Click on the “serious health condition” button above to read about FMLA leave rights. 

If you have health problems because of COVID-19, that may count as a disability and you could have the right to take leave under disability discrimination laws. Click on the “disability” button above to read about whether you may be eligible for reasonable accommodations. 

There are currently no federal or Texas laws requiring that employers provide leave specifically because of COVID-19.  

From March until December 2020, many employers were required to provide up to two weeks of paid leave under the Families First Coronavirus Response Act (FFCRA), if workers were under stay-at-home orders, had been ordered to quarantine by a health care provider, had symptoms of COVID-19 and were seeking a diagnosis, were taking care of quarantined family members, or were caring for children whose schools were closed. For more details about who was eligible for leave under the FFCRA, click here. 

FFCRA’s leave mandate expired in December 2020, though some employers voluntarily continued to offer COVID-19-related leave.  

If you requested COVID-19-related sick leave between March and December 2020, and your request was denied, or your employer fired, disciplined, or retaliated against you for requesting or taking COVID-19-related sick leave, you may have a claim for lost wages or other damages. You can file a complaint for unpaid sick leave (or other unpaid wages) or retaliation with the U.S. Department of Labor online or by calling 1-866-487-9243. You may also contact a lawyer for advice. 

Workers also have the right to act together (or act on behalf of each other) to try to address workplace problems, including requesting that their employers provide sick leave. For more information about these rights, click here.  

You can talk to a lawyer about your options. Here are some examples of additional leave rights you could have in Texas: 

• In Texas, if you have jury duty, your employer cannot fire, intimidate, or coerce you because of it. The court may pay you for serving on a jury, but Texas employers are not required to pay you while you’re on jury duty. 

• Texas workers have a right to take leave to vote if polls are not open for two consecutive hours outside working hours. 

• In general, in Texas, an employer cannot fire, discipline, or penalize an employee for complying with a subpoena (for example, to testify in court or in a hearing).  

Additional leave rights may apply; you can contact a lawyer about your situation. 

You may have the right to paid time off (regardless of the reason) if your employer has a contract or policy providing for paid leave. Read the policy and follow your employer’s rules for requesting paid time off.  

Your employer may also carry short-term or long-term disability insurance, which can provide some income if you cannot work because of an injury or illness. Read your employer’s policy and follow its directions to apply for disability payments. 

Workers also have the right to act together (or act on behalf of other workers) to try to address workplace conditions, including requesting that their employers provide leave benefits. For more information about these rights, click here.