A recent appellate case out of Austin addressed whether unpaid employee leave may qualify as a reasonable accommodation under the ADA, and whether an employee who makes such a request is protected from retaliation under Chapter 21 of the Texas Labor Code.
In Texas Dep’t of Transp. V. Lara, an employee (Lara) sued his former employer (the Texas Department of Transportation) after he was terminated following a period of extended unpaid leave during which he was recovering from gastrointestinal surgery. Lara alleged that his employer failed to provide him with a reasonable accommodation for his disability and retaliated against him for requesting additional leave.
Lara suffered from gastrointestinal issues that necessitated surgery. At the time of the surgery, Lara had already exhausted all the paid leave available to him. Lara was granted FMLA leave and additional paid sick leave through a sick-leave pool, which covered a period of about four months. When that leave expired, Lara requested an additional five weeks of unpaid leave to recover from additional surgery. His employer refused his request, stating that no further leave was available to him, and terminated his employment. The Texas Department of Transportation had a discretionary policy in place which allowed an employee to take up to one year of unpaid leave.
Lara filed suit against his employer, alleging that the additional leave should have been granted as a reasonable accommodation for his disability and that his termination was an act of retaliation against him for making such a request. The department denied Lara’s claims, asserting the defense of undue hardship as to the reasonable accommodation request, and arguing that the request itself was not a protected activity under the Texas Labor Code.
The appeals court sided with Lara on the issue of additional leave as a reasonable accommodation. The court found that Lara’s request for five additional weeks of unpaid leave was not unreasonable, and that his employer had not shown that granting his request would cause the department undue hardship. The court stated that the reasonableness of a leave request must be considered in light of all facts and circumstances in each case and cited two important factors contributing to its decision: 1) Lara’s co-workers had expressed that they would cover Lara’s work during the additional leave time; and 2) the department’s discretionary policy allowing employees to take up to one year of unpaid leave.
However, the appeals court disagreed with Lara’s retaliation claim, holding that making a request for a reasonable accommodation is not a protected activity under Chapter 21 of the Texas Labor Code. A retaliation claim is only appropriate where an employer takes adverse action against an employee for engaging in a protected activity. The code’s definition of a protected activity is narrow, specifically including expressing opposition to a discriminatory practice, making or filing a charge or complaint, and providing testimony or otherwise assisting or participating in an investigation, proceeding, or hearing. Tex. Lab. Code. § 21.055. The appeals court declined to adopt the broader language in the ADA, which protects the exercise of “any right” granted under the Act. 42 U.S.C. §12203(b).
The case is pending review from the Texas Supreme Court. As the appellate decision stands, it may require employers to consider granting unpaid leave to employees as a reasonable accommodation for a disability. The decision also protects employers who terminate employees after declining to provide additional leave once all available leave has been exhausted. If the Court sides with Lara on this issue, Texas’ employers’ at-will employment defense will be significantly narrowed.
During a global pandemic, where an increased number of employees are exhausting sick leave, employers should review and adhere to their existing leave policies and ensure that requests for unpaid leave are given due consideration to avoid violations of Title I of the ADA.
Kuiper Law Firm, PLLC understands the demands employers face as they navigate compliance with state and federal employment laws. If you have questions about the information in this article, or how an attorney can assist you with existing policies, reasonable accommodation requests and employee retaliation claims, do not hesitate to contact us.
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