New York's Highest Court: Indefinite Leave Not Reasonable Under State Law, But Could Be Under NYC Law
In a decision that is both favorable to and disadvantageous for New York State employers, the New York Court of Appeals has ruled that indefinite leave is not a reasonable accommodation for persons with disabilities under the New York State Human Rights Law but could be considered a reasonable accommodation under the New York City Human Rights Law.
In Romanello v. Intesa Sanpaolo, S.p.A., _______ N.E.2d _______, 2013 WL 5566332, 2013 N.Y. Slip Op. 06600 (October 10, 2013), Giuseppe Romanello, a former executive of Intesa Sanpaola S.p.A., was diagnosed with a series of disorders, including major depression, and had been absent from work for almost five months, during which time Intesa continued to pay his full salary. Intesa's counsel then sent a letter to Mr. Romanello's attorney asking if Mr. Romanello would return to work or whether he was abandoning his job. Mr. Romanello's attorney responded by sending a letter stating that although Mr. Romanello was not abandoning his position with Intesa, he was unable to work and sick with an uncertain prognosis, therefore rendering his return to work date "indeterminate." Intesa immediately terminated Mr. Romanello's employment on the grounds that the employer could not accommodate Mr. Romanello's request for indefinite leave.
The Court Of Appeals Ruling
In finding that indefinite leave is not a reasonable accommodation under state law, the Court of Appeals noted that in order to state a claim under that law, "the complaint and supporting documentation must set forth factual allegations sufficient to show that, upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job." The court found that neither Mr. Romanello's communications with Intesa prior to his termination, nor his complaint alleging discrimination, offered any indication as to when he planned to return to work. Given these facts and Mr. Romanello's statement that his return to work date was "indeterminate," the court ruled that Mr. Romanello hoped to keep his job by requesting an indefinite leave of absence, which is not a reasonable accommodation under the state law.
Conversely, the Court of Appeals found that the New York City law affords plaintiffs and employees protections broader than the state law, and that the city law's definition of "disability" does not include "reasonable accommodation" or the ability to perform a job in a reasonable manner. Rather, the city law defines "disability" solely in terms of impairments and requires that an employer "make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, provided that the disability is known or should have been known by the [employer]." The court held that under city law, it is the employer's burden to prove that it would suffer an undue hardship by providing accommodation to the employee’s disability. Therefore, under city law, employers must prove as an affirmative defense that the employee could not "satisfy the essential requisites of the job," even if a reasonable accommodation were provided, or that providing it would be an undue hardship for the employer. Contrasting the two statutes, the Court of Appeals noted that under city law, it is the employer not the employee who has the "pleading obligation" to prove that the employee "could not, with reasonable accommodation, satisfy the essential requisites of the job."
What This Means for New York Employers
Given the Court of Appeals' decision, employers in New York State, particularly those in New York City, should always give each request for a leave of absence due to disability (even one for indefinite leave), a thorough and detailed factual analysis before concluding that the request is unreasonable or likely to produce an undue hardship for the company. When employers appear to have jumped the gun by immediately dismissing an employee's request as unreasonable, it will be more difficult to defend a disability-discrimination lawsuit if brought under New York City law. Given the Romanello decision, the most important step for any employer to take is to engage in the "interactive process" — a term of art under the disability-discrimination law that means employers must communicate with the employee or his/her counsel, suggesting and exploring alternatives to the initial request for an indefinite leave.
For example, Intesa could have communicated to Mr. Romanello's counsel that more leave could be granted, but that further leave would be unpaid. Intesa could have committed to granting Mr. Romanello slightly more leave, (i.e., one or two more months), and then consider additional leave time if requested. Or, if the employee's request is so unreasonable, employers can offer both an alternative accommodation and explain why granting the employee's request is an undue hardship on the employer. Obviously, employers should always explore "easy fix" options such as temporary replacements or explain why a temporary replacement is not a suitable resolution.
The bottom line is that all employers faced with a request for an accommodation based on disability should always engage in the interactive process, suggesting specific reasonable alternatives to an employee's request for leave or, if denying the request, explaining the employer's reasons for why the employee's request is unreasonable or places an undue hardship on the employer's business. Lastly, although the Court of Appeals' decision sets forth a very high standard for New York City employers, this case occurred in the context of a motion to dismiss, and the Court of Appeals did set rules on what precise showing would have to be made for refusing to extend indefinitely a disability-based request for a leave of absence from work.