Albert Lara, a 21 year employee with the Texas Department of Transportation, suffered some stomach issues which required surgery. He went home to recover. he used up all his sick leave and personal leave. Under DOT’s leave without pay policy, he requested extended leave as an accommodation. DOT had a policy which allowed up to one year’s leave without pay as an accommodation. Lara requested additional leave twice. A few months after his second request, DOT fired the 21 year employee. Lara sued DOT for failure to accommodate, retaliation and for discrimination based on his disability. The district court granted the employer’s Plea to the Jurisdiction.

On appeal, the court of appeals granted in part and reversed in part the Plea to Jurisdiction. On appeal to the Texas Supreme Court, the higher court found that the employee need not submit his request for an accommodation on a particular form. That Mr. Lara submitted his request for accommodation as a memo did not violate any statute, said the higher court.

Indefinite Leave

DOT also argued that Lara’s request for leave amounted to a request for indefinite leave. Such a request would render Mr. Lara unqualified for his job. The employer essentially asked the court to adopt a bright line rule that a request for several months leave was never reasonable. But, the Texas Supreme Court did not agree. It noted that the cases cited by the defendant were distinguishable on their facts. The court noted that unlike the case cited by the employer, DOT did have a 12 month policy in place which expressly allowed leave for a disability.

Daily Attendance

The court also rejected DOT’s argument that daily attendance was a job requirement for every job. The higher court said no, whether daily attendance is required is not the relevant inquiry when the issue concerns leave as an accommodation. The issue then becomes what sort of leave policy the employer actually has. The Supreme Court was troubled by DOT’s refusal to specifically acknowledge the existence of its 12 month leave policy. The attorney for Texas DOT claimed the policy allowed the employer to deny the leave, based on circumstances. But, noted the court, that was not what the policy actually said.

Too, Lara’s last request for leave said he could return to work on Oct. 21, just a few weeks before DOT terminated him. The Plaintiff’s testimony that his leave request was not a request for indefinite leave sufficed for purposes of a Plea to Jurisdiction. There was no evidence to indicate he would not return on Oct. 21, as his doctor said. See the opinion in Dept. of Transportation v. Lara, 625 S.W.3d 46 (Tex 2021)  here.