HR Specialist: Texas Employment Law

Everything’s bigger in Texas – including employer liability. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This Texas-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: Texas Employment Law and the free report you’ll get when you subscribe...

Employees who qualify as “disabled” under the ADA have the right to reasonable accommodations to allow them to perform the essential functions of their jobs.

But choosing those accommodations requires an “interactive process” between employer and employee. Employers that rush to judgment about the alleged disability or the accommodation request will risk legal trouble.

That’s especially true if the employer “conveniently” finds a reason to discharge the employee shortly after the employee reveals a disability or makes an accommodation request. Simply put, such a reaction looks suspiciously like outright disability discrimination.

Instead, take the process one step at a time. Begin discussing possible accommodations immediately while you gather information to help you decide whether the employee is actually disabled.

Recent case: Chevron employee Lorin Netterville had suffered an episode of chronic fatigue syndrome (CFS) about 13 years earlier, but had recovered. Netterville filled out a medical questionnaire before being hired full time.

About two years into her tenure at Chevron, Netterville was getting good performance reviews. But she began to experience CFS symptoms again, including disrupted sleep, low-grade fevers, stiff joints, pain in her arms and legs, and nausea. Her condition deteriorated to the point that her sister had to dress her for work each morning.

Netterville’s physicians recommended she take time off. She asked her supervisor for two weeks off to deal with her condition. She got the leave. However, the supervisor immediately sent an e-mail to the HR office requesting a look at her medical questionnaire. When she returned to work with a doctor’s accommodation requests, her supervisor ignored her. She was then fired for allegedly falsifying the medical form.

The EEOC took her case to court. The agency said it was clear she had a qualifying disability that substantially limited major life functions such as sleeping and taking care of herself. It also argued that instead of considering accommodations, the employer found an excuse to fire her. A lower court dismissed the case, but the 5th Circuit Court of Appeals reinstated it.

The appeals court concluded there was plenty of evidence to send the case to trial, and a jury should decide whether the employer manufactured an excuse to terminate her as soon as it discovered she was disabled. (EEOC v. Chevron Phillips Chemical Company, No. 07-20661, 5th Cir., 2009)

Final note: This is a significant win for the EEOC, which has lately been very aggressive about pursuing employers.  The court bought its argument that a chronic condition that goes dormant is still a disability. In this case, the employee had not had any problems for more than a decade. The court agreed that did not mean her condition was temporary. Because it could recur at any time, it was a permanent disability covered by the ADA.