A Texas information technology worker began work in 1997 for a state agency. Two serious illnesses in the early 1990s had severely compromised his health, and he was generally permitted to work from home. But then the economy began to falter.
What happened. "Arnold" worked for the Texas Water Development Board from May 1987 to August 2007. But in August 2004, facing the potential outsourcing of his position, he was asked to transfer to another job that required him to work in the agency’s offices—serving customers, and much more.
Arnold was offered the option of long-term disability benefits, but he repeatedly said he preferred to work. But he fell ill in mid-2006 and was given intermittent leave under the Family and Medical Leave Act (FMLA), using up all his time by late April 2007.
By then he had traveled to Thailand for stem-cell treatment and asked for part-time work or special assignments. But his doctor said he couldn’t work at all, and his managers were still under pressure to cut staff levels. They gave him an additional 720 hours’ sick leave, but as of August 31, they approved him for disability benefits and terminated him.
Arnold sued for violation of his rights under the Americans with Disabilities Act (ADA) and retaliation for his use of FMLA leave. A judge in federal district court ruled entirely in the agency’s favor, and Arnold appealed to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.
What the court said. Appellate judges didn’t question that Arnold was qualified for protection under the ADA, given his heart condition and digestive disorders. But was he "otherwise qualified to perform the essential functions of his job with or without reasonable accommodation"?
Since his doctor refused to release him to work and couldn’t say when he might be able to return, it seemed clear that he was not qualified for his job. He had been unable to work for 5 months before he was terminated and given more than 3 months’ additional sick leave. So judges saw no evidence of retaliation. They, too, ruled in the employer’s favor. Amsel v. Texas Water Development Board, U.S. Court of Appeals for the 5th Circuit, No. 11-50255 (2012).
Point to remember: Several circuits have ruled that employers are not obliged to hold open the jobs of disabled employees who need leave for an indefinite period of time. Employers are not required to prove it would be an undue burden; judges simply don’t see it as a reasonable accommodation. The Equal Employment Opportunity Commission anticipates issuing new guidance on the use of leave as a reasonable accommodation under the ADA.