United States: New York Court Of Appeals Puts Burden On Employer To Show That Request For Indefinite Leave Is Unreasonable Under NYCHRL

In Romanello v. Intesa Sanpaolo, S.p.A., No. 152, 2013 N.Y. LEXIS 2755, 2013 NY Slip Op 6600 (N.Y. Oct. 10, 2013), the New York Court of Appeals considered whether an employee's request for an indefinite leave could be a reasonable accommodation under either the New York State Human Rights Law ("NYSHRL") or New York City Human Rights Law ("NYCHRL"). The Court ruled that, on the facts presented, indefinite leave was not a reasonable accommodation under the NYSHRL but could be under the NYCHRL.

Factual Background

The plaintiff Giuseppe Romanello was a long-time employee of the financial services firm Intesa Sanpaola S.p.A. He went out on leave with a series of disorders, including major depression. After being on fully-paid leave for approximately five months, Intesa's counsel sent plaintiff's counsel a letter, noting that Romanello's FMLA leave was expiring and stating "the bank would appreciate knowing whether he intends to return to work or to abandon his position."

Romanello's attorney responded, stating that Romanello has been "suffering from severe and disabling illnesses that have prevented him, and continue to prevent him, from working in any capacity, let alone in the capacity in which he had been serving [Intesa]." The letter also noted, however, that Romanello "has not at any time evinced or expressed an intention to 'abandon his position' with [Intesa]. Rather, he has been sick and unable to work, with an uncertain prognosis and a return to work date that is indeterminate at this time."

In response to this letter and without further consultation with Romanello, Intesa terminated his employment. Romanello brought claims under the NYSHRL and NYCHRL. The trial court granted Intesa's motion to dismiss the claims, and the intermediate appellate court affirmed the dismissal.

Indefinite Leave Under the NYSHRL

Courts have long taken the position that open-ended, indefinite leaves are not reasonable accommodations under the Americans with Disabilities Act or the NYSHRL. See Graves v. Finch Pruyn & Co., 457 F.3d 181, 186 (2d Cir. 2006) ("The duty to make reasonable accommodations does not . . . require an employer to hold an injured employee's position open indefinitely . . . .") (quoting Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000)). This determination, however, is generally a fact sensitive one. For example, in Graves, the Second Circuit noted that the plaintiff asked for "more time" on leave so that he could visit his doctor. 457 F. 3d at 186. The plaintiff testified that this might take "a couple of weeks." Id. In reversing an award of summary judgment in favor of the employer, the Court found that a reasonable jury could find that the request was not open-ended, but instead for a finite period of time.

In Romanello, the Court of Appeals affirmed the dismissal of the plaintiff's NYSHRL claim, stating that "[i]ndefinite leave is not considered a reasonable accommodation under the [NYSHRL]." 2013 N.Y. LEXIS 2755, at *4. While the Court affirmed the dismissal of the NYSHRL claim, it carefully considered the factual allegations in the complaint and in the pre-termination letter from Romenello's attorney, which described Romanello's "indeterminate" return to work date. Thus, while a request for indefinite leave may be unreasonable under the NYSHRL, employers must still ensure that the facts presented in the case cannot be read to suggest a more finite leave request.

Indefinite Leave Under the NYCHRL

Under the NYCHRL, however, the Court found that "there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation" under the NYCHRL. Id. at *4 (quoting Phillips v City of New York, 66 A.D.3d 170, 176 (1st Dept. 2009)). The Court also noted that the NYCHRL definition of disability addresses only "impairments" and "does not include 'reasonable accommodation' or the ability to perform a job in a reasonable manner." Id. at *6.

The Court found that, once a disability is known or should be known to the employer, it is the employer's obligation to provide a reasonable accommodation to "enable a person with a disability to satisfy the essential requisites of a job." Id. at *6-7. Furthermore, the Court ruled that it is the employer's "'pleading obligation' to prove that the employee 'could not, with reasonable accommodation, satisfy the essential requisites of the job.'" Id. at *7 (citing Phillips, 66 A.D.3d at 183). The Court ruled that Intesa had made no showing that Romanello could not perform his essential job functions with an accommodation in its motion to dismiss. Id.

While the Court's position on Romanello's NYCHRL claim reinforces the broad, liberal interpretation afforded to the NYCHRL, the Court's opinion provided little guidance to employers on how they can go about meeting their "pleading obligation" to refute such claims. Certainly, however, the Court would require a more thorough interactive process than that employed by Intesa prior to Romanello's termination.

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