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in FMLA Guidelines,Human Resources

Here’s something to consider if a discharged disabled employee who simply could not do her job sues, alleging disability discrimination. Check to see if she has applied for disability benefits and get a copy of the application.

If she didn’t qualify her disability by claiming she could perhaps do some work if reasonably accommodated, she may have killed her chances to argue she was qualified for her old position, too.

Recent case: Nancy worked as an administrative assistant for the Texas Parks and Wildlife Department. She suffered from a number of ailments including morbid obesity, diabetes, congestive heart failure and chronic anemia. She missed considerable work over the years, exceeding her FMLA and other available leave. Sometimes, she was approved to borrow time from a bank of leave other employees had donated.

Then her supervisor assumed new duties, changing Nancy’s job, too. Over the next year, she continued to miss work, using all her leave. When she asked, her boss approved her for more leave-bank hours, but warned her that her job would not be protected. When her leave was up, she was terminated and a replacement was hired.

Nancy then applied for disability retirement benefits and swore under oath that she was totally disabled and unable to perform any work. Her doctor provided a similar assessment.

After being approved for the benefits, she sued the parks department, alleging that she had been discriminated against due to her disabilities and that she should have been accommodated with more leave or other accommodations.

The court dismissed her complaint. It reasoned that because she never qualified her disability benefits application by stating that she could work with some accommodation, she could not now argue that was the case. (Texas Parks and Wildlife Depart­­ment v. Gallacher, No. 03-14-00079, Court of Appeals of Texas, 2014)

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