Texas law and extended disability leave: Answers likely coming

The Texas Supreme Court recently heard oral argument on an issue that’s bedeviling employers in the state, namely whether the Texas Labor Code’s disability discrimination protection requires additional leave when a disabled employee’s leave is exhausted and he is still unable to return to work. As a bonus, the court also will address whether asking for a reasonable accommodation of extended leave is a protected activity under the statute for which an employee is immune from retaliation.

Time line

Albert Lara, Jr., was an employee of the Texas Department of Transportation (TxDOT) for almost 20 years. He took time off for gastrointestinal distress and then underwent surgery on May 7, 2015. By that date, he had already exhausted all of his paid leave. His doctor said he couldn’t return to work until June 23.

Because Lara was out of paid leave, TxDOT put him on Family and Medical Leave Act (FMLA) leave until June 23. When that date came and went and he was still unable to return to work, his leave was extended until September 16.

On September 1, Lara was told in writing (1) no further leave extensions would be granted and (2) he would be terminated if he was unable to return to work. He wasn’t able, and he was let go. The termination occurred even though he told TxDOT he would be medically cleared to return to work on October 21.

What’s in four weeks?

Answer: a disability discrimination lawsuit. The litigation wound its way to the appeals court in Austin.