You're Sick and Unable to Work. Is Your Employer Required to Keep Your Job Open?


In an economy where employers are increasingly willing to let employees go at will, and for just about any reason, one of the biggest struggles that employees face is the question of whether they can or should take time off because they are sick or because they need to care for a family member. Often, situations like these put employees in a difficult dilemma where they have to decide whether to continue working to preserve their job, even though it is jeopardizing their own health and/or the health of a loved one. Under Texas law, there are no protections that are provided to employees in this situation. However, the Family Medical Leave Act (FMLA), a federal law, protects some types of employees from being fired for taking sick leave.


In order to qualify for leave under the FMLA, your situation needs to meet the following conditions:


You must be employed with a private company that consistently employes at least 50 people. The FMLA does not apply to small and medium-sized businesses, which have limited numbers of employees. It also limits the availability of leave where an individual worksite has less than 50 employees. As such, if your workplace only has 5-10, or even 45 workers on a daily basis, you may not be able to qualify for FMLA.


You must have been employed for at least twelve months. The period of time that you have been "employed" is treated somewhat liberally in most circumstances. As such, if you worked for your employer for six months, and then somewhere else for a year, and then worked for your current employer again for another six months, you might still be able to qualify. The continuous period also normally applies where one employer buys out another employer. However, if you are working for your employer for the first time, and you have only been there for a few weeks or months, you won't be able to qualify for FMLA.


You must meet one of the conditions that qualify for FMLA. The FMLA applies in the following situations: (1) employees who are sick and unable to do their job as a result of their sickness, (2) employees who need to care for a newborn or newly adopted child, (3) employees who need to care for a sick family member. This covers most "medical leave" situations, but if your injury or illness is not serious enough to prevent you from doing your job, you won't be able to qualify.


You must take no more than twelve weeks off. You are allowed up to twelve weeks of leave. Once those twelve weeks have expired, your employer is no longer required to keep your job open (see below).


If you meet the requirements for an FMLA claim, you can get up to twelve weeks' leave. During that time, your employer is required to keep your job open and must continue to provide you with any benefits that you were provided while you were working. The FMLA does not, however, require your employer to give you paid leave. As such, you will still need to have a plan for handling your bills and other monthly expenses while you are off work.


If you are considering making an FMLA claim, but uncertain about whether you qualify, you can get more information from the Department of Labor's website. Additionally, if you believe you have been discriminated against as a result of an FMLA claim, you should contact an attorney who practices employment law.

© 2017 Matthew Ritchie