Can a Texas employer terminate an employee while they are on FMLA?

What This Means for Employers

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.

What Employers Usually Miss

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.

What to Review Before You Act

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.

When to Get HR Help

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.