Human Resource Blog

Texas FMLA and Termination

If an employee who works for a union has exhausted his or her leave under FMLA, can the employee be terminated?

If you mean “working under a union contract,” you should check the union contract the employee works under, or talk with a union representative, or a labor lawyer.

But assume for the moment that the employee actually works for a union. The following applies information to any employer-employee relationship.

Usually an employee who has used up leave under FMLA and cannot return to work can legally be terminated, whether in Texas or anywhere else in the U.S. Whether the employer is a union or not, this applies.

It sounds unfair. But keep in mind that, under the Family and Medical Leave Act of 1993, or FMLA, workers are guaranteed up to 12 weeks of job-protected unpaid leave for a serious medical condition.

But before FMLA, workers could be fired if they were out of work for just a couple of weeks, regardless of illness. Employers do in fact need somebody to do the work, and cannot leave slots open simply waiting for the worker to recover and return.

Some firms have developed more generous policies. They rehire former workers if the company actually has an opening. Federal law doesn’t mandate such a move. But it’s a good option.

Now, according to the FMLA, the 12 weeks of leave may also be used to take care of a child, parent, or spouse with a serious illness. The time may also be taken for early bonding with a newborn child, a new foster child, or a newly adopted child.

But when the leave is used up, and the worker continues to be absent, then the employer may initiate a termination. The FMLA doesn’t forbid this, nor does any other federal law. Not many states allow leaves that exceed 12 weeks in length. Ask us about a specific state and we’ll post the information for you.

There is an exception under the Americans with Disabilities Act of 1990 – the ADA. If the worker has a disability now and could perform the job with what is called reasonable accommodation, the employer must provide that accommodation.

If an extension was offered one worker, it must be offered to all. JH