According to the Department of Labor, the vast majority of American mothers are in the workforce; in fact, 62 percent of mothers who gave birth within the last 12 months are working or planning to return to work. It is common for new or expectant mothers to request time off work to give birth, recover from their pregnancy and take care of their child; new or expectant fathers also commonly take leave to help their partners through this process. Workers' right to this type of leave is protected under federal law by the Family and Medical Leave Act, which became law in 1993. There is no Texas state law that requires employers to provide maternity or paternity leave, so employees must rely on the FMLA to ensure that their access to parental leave is protected.How Does FMLA Leave Work?
The threshold to qualify for parental leave through the FMLA is to have worked for a covered employer for the last 12 months and have totaled over 1,250 hours of work in that time. (This is approximately equivalent to 25 hours of work per week.) Not all employers are covered, either; covered employers must have 50 or more employees located within a 75-mile radius of the worksite. If you meet the requirements for duration of employment, and your employer meets the requirement for number of employees, then you are covered by the FMLA. Employees covered by the Act are entitled to take up to 12 weeks of unpaid leave in order to care for a newborn or newly adopted child. Parents are allowed to use any sick days or accrued vacation they may have in order to receive pay while they take parental leave. The allotted 12 weeks of leave under the FMLA do not have to be taken all at once; "intermittent" FMLA leave allows you to periodically take small amounts of leave in order to help care for your child. You should also be aware that employees must give employers reasonable notice of their need for parental leave. Wiley Walsh's Austin employment lawyers can help you make sure that you have fulfilled all the conditions and expectations for taking leave under the FMLA.Some Things to Be Aware Of
Some Texas companies make comprehensive maternity leave plans a part of their employment contract. In those cases, the promises those employers make about the availability of parental leave have the same force as any other contractual promise. If your employer refuses to allow you leave that your contract says you are eligible for, or if you are retaliated against for taking said leave, then you may be able to bring an action for damages against that employer. The Pregnancy Discrimination Act also ensures that employees are not discriminated against for pregnancy or related conditions by mandating that they receive the same access to leave as employees who suffer from non-pregnancy-related medical conditions.
Employers are prohibited from preemptively terminating employees to keep them from benefiting from the FMLA leave they would otherwise be entitled to. For example, if a pregnant woman has not yet worked for her employer for a full year, but will have passed that mark by the time she has her baby, then it is illegal for her employer to fire her in order to prevent her from taking maternity leave. Retaliation against employees who take parental leave is just as illegal as preemptive termination. Employers are not permitted to deny workers a promotion, demote or fire them, or cut their benefits because of their requests for FMLA leave. If you have been retaliated against because you took parental leave, or been denied access to leave entirely, you should contact an attorney and look into bringing a claim. The Austin parental leave lawyers at Wiley Walsh can help ensure that you make the strongest case possible in court. If you feel that you have a claim, you can contact us by filling out our intake form or calling our office at (512) 271-5527.