Can a Texas employer deny FMLA and still terminate employment?
Denial and termination are two decisions. Employers lose by treating them as one.
Last updated: August 02, 2026
Direct Answer
Yes, a Texas employer can deny FMLA leave if the employee does not meet eligibility requirements or the leave is not covered under FMLA. The employer may still terminate employment, provided the termination is lawful and unrelated to any protected leave rights. However, denying FMLA improperly while terminating could lead to legal risks. Employers must carefully document eligibility, leave requests, and reasons for termination to withstand scrutiny.
Controlling authority: DOL Fact Sheet #28 (revised March 2025). Eligibility is 12 months of service, 1,250 hours, and 50 employees within 75 miles — but public agencies and schools are covered regardless of headcount.
Two separate decisions, documented separately
FMLA protections apply only to eligible employees who meet specific criteria, including hours worked and employer size. If an employee does not qualify, denial of FMLA leave itself is lawful. Termination decisions must then rest on legitimate, non-discriminatory reasons independent of any leave request. Understanding these distinctions is critical because confusion around eligibility and protected leave can create costly compliance gaps.
In practice, Texas employers must treat FMLA requests seriously but also realistically. The law protects eligible employees’ job security during covered leave, but it does not grant indefinite leave or shield employees from termination unrelated to leave. Employers should avoid assumptions that all leave requests qualify for FMLA or that denying leave means automatic wrongful termination. This balance is where operational clarity and documentation prove essential.
| Question | The test | Where employers get it wrong |
|---|---|---|
| Is the employer covered? | Private sector: 50 or more employees in 20 or more workweeks in the current or previous calendar year | Public agencies are covered regardless of headcount, as are public and private elementary and secondary schools. A five-person city department is covered. |
| Has the employee worked 12 months? | Need not be consecutive | Prior service usually counts; USERRA service counts toward both months and hours. |
| 1,250 hours in the previous 12 months? | Actual hours worked, not hours paid | Paid leave and holidays do not count toward the 1,250. |
| 50 employees within 75 miles of the worksite? | Measured from the employee’s worksite | Remote employees are measured from the site they report to, not their home. |
| How much leave? | 12 workweeks; 26 workweeks for military caregiver leave | Measured in the employee’s own workweek — a 32-hour employee gets 32 hours a week for 12 weeks, not 40. |
A wrong denial converts an ordinary termination into interference
What I see employers miss most is the nuance between denying FMLA because an employee is ineligible and terminating for reasons unrelated to leave. Sometimes managers conflate leave denial with punitive action, which can trigger grievances or claims. Another common gap is failing to document the basis for denying leave or the legitimate business reasons behind termination decisions, which undermines defensibility.
Employers also overlook how the timing of communication and consistency in applying leave policies affect risk. For example, denying FMLA without clear explanations or delaying responses can fuel confusion and distrust. Likewise, termination decisions made too close to a denied leave request without clear reasoning often invite scrutiny. Operationally, leaders must ensure policies are not just written but practiced with transparency and consistency.
| Action | Why it is a violation |
|---|---|
| Assessing negative attendance points for FMLA leave | Named expressly by the DOL. A no-fault attendance system that does not exclude FMLA absences generates violations automatically, on every absence, without anyone deciding anything. |
| Writing an employee up for missing work while using FMLA leave | The absence is protected; the write-up is the adverse action. |
| Denying a bonus the employee had already qualified for before taking leave | The entitlement predates the leave. |
| Changing the number of shifts assigned after leave | Restoration must be to the same or an equivalent position, including hours. |
| Moving the employee outside their normal commuting area | An equivalent position includes geography. |
| Denying a promotion because the employee used FMLA leave | Use of leave cannot be a negative factor in any employment decision. |
| Failing to designate leave as FMLA | FMLA runs whether or not the employer designates it. Failing to designate usually means the leave was consumed without the employer getting the benefit of the entitlement. |
Where the two decisions get merged
Ignoring the practical and legal complexities around FMLA denial and termination can lead to serious risks. These often stem from inconsistent processes rather than the rules themselves.
- Inadequate documentation of leave eligibility and denial reasons
- Terminating employees shortly after denied leave requests without clear cause
- Managers treating leave denial as punishment or retaliation
- Failure to communicate leave policies and employee rights clearly
- Inconsistent application of leave and termination policies across employees
Verify eligibility before you act on conduct
Before denying FMLA and proceeding with termination, review the employee’s eligibility carefully, including hours worked and employer coverage. Confirm the leave request aligns with qualifying reasons under FMLA. Next, assess documentation supporting the denial and ensure the termination rationale is independent of any leave issues. This protects against claims of retaliation or interference.
Also evaluate the timing and communication of decisions. Ensure managers have followed established processes for handling leave requests and terminations consistently. Check that all interactions are well documented in writing and that the employee has been informed clearly about their rights and the reasons behind actions taken. This practical diligence reduces exposure and fosters transparency.
Scores a specific termination decision before the meeting, not after it.
When denial and discipline coincide
Engage HR professionals when eligibility questions arise or when termination decisions intersect with leave requests. Early involvement helps clarify compliance boundaries and operational steps needed to reduce risk. HR can also assist with consistent communication strategies and documentation frameworks that hold up under scrutiny.
If you face repeated challenges managing leave denials or suspect retaliation claims, consult HR experts promptly. They help design practical processes that balance legal compliance with operational realities. This proactive approach prevents costly grievances, turnover, and morale problems down the line.
Need Help Managing FMLA Leave and Termination?
Faulkner HR Solutions offers strategy-backed, practical guidance to help Texas employers navigate FMLA compliance and workforce management. Let us help you build consistent processes that reduce risk and support your people effectively.
Contact Faulkner HRThis page provides general HR information for employers and is not legal advice. For legal interpretation or representation, consult qualified employment counsel.