Under the Americans with Disabilities Act (ADA) as well as Texas law, your employer is required to provide you with a reasonable accommodation for your disability, as long as you are qualified to do the job. Reasonable accommodations can include any changes to the workplace or tasks that would allow you to do the job.
For example, you might need altered work hours periodically to see a doctor for disabling diabetes. Similarly, you might need a ramp if you need to use a wheelchair. You might need special software if you have an impairment that involves difficulties using your hands, such as amputation or disabling carpal tunnel syndrome.
Sometimes the reasonable accommodation includes time off from work. This may be provided under the ADA or Texas law, but it may also be provided under the federal Family and Medical Leave Act, if your employer is large enough to be covered by this law. Only employers with 50 or more employees are covered. The FMLA requires covered employers to give eligible employees the right to take up to 12 weeks of unpaid leave for a serious health condition. For example, if you have cancer and need time off to go to chemotherapy appointments, your employer may need to accommodate you under the ADA or Texas law. If the chemotherapy doesn’t work, you may be entitled to ADA leave, but you may also be entitled to FMLA leave.
If you need a reasonable accommodation, you need to ask for it. Your employer is supposed to engage in an interactive good faith process to determine what would serve as a reasonable accommodation — it doesn’t need to immediately provide you with the specific accommodation you request. The dialogue you have should allow the employer to decide what would be effective. An employer can deny an accommodation if it would create an undue hardship based on its resources, size, and nature.
Your employer cannot terminate you for asking for a reasonable accommodation or take another discriminatory action against you. If, for example, you are demoted because you asked for a reasonable accommodation, this is a form of disability discrimination that is actionable. Sometimes an employer provides an accommodation because it understands that it has to provide the accommodation by law, but it starts making critical comments about the disability or otherwise taking adverse actions against you. Your employer is not permitted to discriminate against you for using your reasonable accommodation, nor may it retaliate against you for taking the reasonable accommodation.
Sometimes an employment handbook includes rules related to asking for a reasonable accommodation. You should follow these rules. In 2014, a federal court in Texas determined that an employer could terminate an employee who didn’t follow the rules to ask for an accommodation. The employee was a transport driver and had to follow an attendance policy.
He was diagnosed with sleep apnea and also had to comply with Department of Transportation guidelines related to rest periods. He had trouble adjusting to the machine and was therefore regularly tardy to work. He was told the tardiness was a problem, and then he told a new supervisor about his sleep apnea, but he didn’t ask for a later start time. He eventually falsified time sheets because he didn’t want his time sheets to show he was late, but he didn’t ask for a reasonable accommodation. He filed a charge with the EEOC and then a lawsuit in federal court.
The court found in favor of his employer, holding that he hadn’t offered evidence he was treated less favorably than a non-disabled person and couldn’t argue against the company’s nondiscriminatory reasons for terminating him. He couldn’t arrive on time with or without a reasonable accommodation, noting that he’d had attendance problems before his sleep apnea diagnosis and never asked for an accommodation, even though he had many opportunities to do so.
It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.
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