The Family and Medical Leave Act provides eligible employees with unpaid, job-protected leave for certain family and medical reasons.  When employees request or take leave, these workers have protections from FMLA interference and retaliation.  This means that employers may not interfere with a worker’s rights to take FMLA leave and may not take adverse employment actions (e.g., write ups, demotions, terminations) against employees for exercising their rights under the FMLA.

Am I protected under the FMLA?

For employees to have protections under the FMLA, their employer must have a minimum of 50 employees within a 75-mile radius of the work location. Additionally, the employee must have worked for the employer for at least a year and must have worked at least 1,250 hours during that year. If all these conditions are not met, the employee may not be protected by the FMLA.

What type of leave is protected under the FMLA?

Employees protected under the FMLA are entitled to 12 weeks of unpaid leave in a 12-month period.  Leave may be taken for: the birth of a child and to care for that child; to care for a newly adopted child or newly placed foster child; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to work; or a qualifying exigency arising from the employee’s spouse’s, child’s, or parent’s “covered active duty.”

Further, the FMLA provides up to 26 weeks of protected leave to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, child, parent, or next of kin.

How do I request FMLA leave?

If you are an employee covered by the FMLA, you must be sure to properly request leave.  Many employers will have very specific guidelines outlined in an employee handbook. If guidelines are not readily available, it is recommended that employees contact their employer’s human resources department.  If there is no human resources department, workers should contact their immediate supervisors and make inquiries into the process.

Many employers require that employees complete specific paperwork, which often includes providing supporting medical documentation.

A failure to follow proper procedures outlined by an employer when requesting FMLA leave may leave an employee unprotected.

Can I be fired while on FMLA leave?

The answer to this question will depend on the employer’s reason for terminating the employee.

An employee absolutely may not be terminated BECAUSE he or she requested or took FMLA leave.

But, the request for FMLA leave or the taking of FMLA does not mean that an employee cannot be fired before taking leave, while on leave, or immediately after returning from leave, if the employer’s reason is something other than the leave itself.  This means a worker can still be terminated for poor performance, workplace misconduct, or even during a company layoff.

What if I was fired while on FMLA and the reason the employer gave was false?

If an employee is fired after requesting FMLA leave, while on FMLA leave, or after returning from FMLA, the circumstances surrounding the termination should be seriously considered.

Employers won’t say I am firing Jane or John Doe for taking FMLA leave.  Instead, they may allege some other reason for termination. For example, an employer may say the worker was fired for poor performance.  However, this may be proven false if the employee had always received excellent performance reviews prior to taking FMLA leave.  The employer may tell the employee they are being laid off.  But the employee may learn that he or she was the only worker “laid off.”  The employer may say the employee is being terminated for workplace misconduct.  Yet, the alleged misconduct is something all the employees do, but no one has ever been terminated for it.  Under circumstances where the employer’s reason for termination are questionable, the alleged reason may in fact be evidence of FMLA retaliation.

If you want to know more about your rights under the Family and Medical Leave Act or if you think your employer is retaliating against you for requesting or taking FMLA leave, our Texas Employment Lawyers are available for a consultation.  Know your rights.  Protect your rights.

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Photo of Kalandra N. Wheeler Kalandra N. Wheeler

We asked Kalandra N. Wheeler, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions.  After reading, you will be more more abreast with the understanding and competency that Ms. Wheeler

We asked Kalandra N. Wheeler, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions.  After reading, you will be more more abreast with the understanding and competency that Ms. Wheeler brings.

1.Why did you start practicing labor and employment law?

I wanted to be able to help people that otherwise might not find help. Labor and employment laws affect most of society.  And – whether our results help one or many – our work and efforts as employment lawyers touch people in a real way in their every day lives.

2. Who is your favorite Supreme Court Justice?

Thurgood Marshall.

3. What do you think is the most important part of a good case?

The client. Good facts and evidence are definitely important. But good clients are a lawyers’ most valuable asset.  A good client: (1) is invested in their case; (2) works or worked hard for their employer; (3) can tell their story clearly and concisely; and (4) is someone that a jury will find sympathetic and relatable.

4. If you could write a new law, what would it do?

The Texas Workplace Anti-Bullying law.  I hear the stories, the ones told by employees looking for help. And in far too many of those stories the law offers no solution.  Every employee that goes to work and works hard to do the job they are hired to perform should be able to do so without abuse, harassment, and bullying. There is no justification for bullying, not in our schools, and not in our workplaces.

5. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

For a year before law school, I worked as a lube tech for Jiffy Lube.  I spent hot summer days, working on hot cars, changing oil or flushing transmissions or radiators.  I never had a customer come back with a complaint.

6. How do you market yourself differently than others?

I tell clients what they need to hear, not necessarily what they want to hear. Before a client begins down any path toward resolving an employment dispute, they need thoughtful, honest advice. I am a believer in justice and everyday people deserve competent representation in an arena that is difficult for non-lawyers to navigate.

7. What do you do when you’re not practicing law?

I spend time with family and friends.  I read true crime books.  I sew and draw.

8. How would you describe the color yellow to someone who could not see?

It’s not the intense heat of the sun during the month of August, but instead the softness of the sun on your skin just as the seasons change from Summer to Fall.  It’s warm. And soft to the touch.  It’s fresh squeezed lemonade with a hint of sugar.  Slightly cool, inviting, and happy.

9. What’s your favorite legal TV show?

Law & Order: SVU

10. If you could argue any case in history, what would it be?

The Karen Silkwood case. But really, I think that would be more about arguing and trying a case alongside Gerry Spence for the learning experience.

Kalandra N. Wheeler is a Trial Attorney in the Houston office of Wiley Wheeler, P.C.  She graduated from The University of Houston with a bachelor’s degree in political science.  Ms. Wheeler went on and received her law degree from The University of Arkansas.