Can a Texas employer terminate an employee while they are on FMLA?
Yes, but only on evidence that predates the leave. Leave confers no immunity, and it grants no amnesty either.
Last updated: August 02, 2026
Direct Answer
Yes, a Texas employer can terminate an employee while they are on FMLA leave, but only under specific circumstances. Termination cannot be due to the employee exercising their FMLA rights. Employers may lawfully end employment for reasons unrelated to FMLA, such as layoffs or documented performance issues that predate the leave. However, improper termination during FMLA leave risks legal challenges and liability.
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.
Leave confers no immunity, and no amnesty
FMLA protects eligible employees from adverse actions based on their need to take leave for qualifying family or medical reasons. Still, the law does not grant absolute job security. Termination is permitted if the employer’s reason is legitimate and unrelated to the FMLA leave. For Texas employers, this means carefully separating the leave event from any employment decision to avoid claims of retaliation or discrimination.
In practice, this requires clear documentation and consistent application of policies. Employers must ensure the termination is based on valid business reasons—such as restructuring, performance documented before leave, or violation of company policies—not the leave itself. An FMLA termination defense hinges on showing the leave did not influence the decision and that a comparable employee not on leave would have been treated similarly.
The evidence has to predate the notice, not the termination
What I see employers miss is that FMLA protection is often viewed too narrowly as a ‘no termination’ rule during leave. The real issue is process integrity. If documentation is weak or timing suspicious, even legitimate terminations become risky. Employers sometimes overlook how managers’ informal comments or inconsistent records can undermine their position later in disputes or investigations.
Another common gap is failing to review the operational context before acting. For example, underperformance or misconduct claims must be well-documented and communicated before leave starts. Otherwise, terminating during or immediately after FMLA leave looks retaliatory. Also, employers sometimes neglect to consider whether the employee’s position is truly eliminated or if a comparable role exists, which triggers additional compliance scrutiny.
| 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 lawful terminations still lose
Terminating an employee during FMLA leave carries several risks that can threaten your organization’s compliance, reputation, and employee relations. Recognizing these triggers helps prevent costly mistakes and strengthens your defensibility.
- Termination lacks clear, documented business reason unrelated to FMLA.
- Timing of termination coincides closely with start or return from leave.
- Inconsistent application of leave and discipline policies across employees.
- Failure to provide equivalent job or reasonable accommodation options.
- Poor communication and documentation during leave and termination process.
Pre-leave documentation and comparator checks
Before proceeding with termination during FMLA leave, review your documentation carefully. Confirm that any performance or conduct issues predate the leave and have been communicated clearly to the employee. Check whether your policies were applied consistently and whether comparable employees not on leave faced similar consequences.
Also, evaluate any operational changes such as layoffs or restructuring that might justify termination independently of leave. Ensure your decision aligns with your written policies and that you have documented all relevant interactions. This review helps protect your organization from claims of retaliation or interference under FMLA.
Scores a specific termination decision before the meeting, not after it.
When a termination on leave needs review
Engage HR professionals early when considering termination during FMLA leave. They can help audit your documentation, assess risk factors, and guide consistent, compliant decision-making. In my experience, proactive HR involvement reduces defensibility issues and supports better communication with the employee.
If the situation involves complex operational changes, potential accommodations, or unclear documentation, consulting HR or legal experts is essential. Taking this step before acting helps balance compliance with practical business needs and preserves your organization’s credibility and culture.
Need Guidance on FMLA and Termination Decisions?
Faulkner HR Solutions provides Texas employers with strategy-backed, compliant HR consulting to navigate complex leave and termination scenarios. Protect your organization by aligning your policies and practices with practical operational realities.
Get Expert HelpThis page provides general HR information for employers and is not legal advice. For legal interpretation or representation, consult qualified employment counsel.