United States: Employer Must Prove Indefinite Leave Is Undue Hardship Under NYCHRL, Says New York’s Highest Court

Can an employee state a claim for a disability discrimination termination when he advises his employer that his return to work date "is indeterminate at this time" and the employer, without further discussion with the employee to determine the reasonableness of the request, seeks to justify the termination based solely on the wording of the request? In Romanello v. Intesa Sanpaolo, S.p.A., 2013 N.Y. LEXIS 2755; 2013 Slip Op 6600 (N.Y. Oct. 10, 2013), the New York Court of Appeals dismissed plaintiff employee's disability discrimination claim, grounded upon an open-ended leave accommodation request, under the New York State Human Rights Law (NYSHRL or State HRL), but reinstated his disability claim under the New York City Human Rights Law (NYCHRL or City HRL). In so ruling, the Court held the employer "did not meet its obligation under the City HRL to plead and prove that plaintiff could not perform his essential job functions with an accommodation" (i.e., extending his medical leave of absence).

Notably, this case arose on the employer's Motion to Dismiss, in the pleadings stage prior to discovery. While a claim under the Americans with Disabilities Act (ADA), as amended, was not raised here, the Court of Appeals ruled that the City HRL "affords protections broader than the State HRL", explaining that "the provisions of the City HRL should be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible'".

Factual Background

Plaintiff Giuseppe Romanello, a long-time executive at Intesa, went out on leave due to a variety of medical issues, including major depression. After five (5) months on leave, Intesa's counsel inquired about his intent to return to work ("the bank would appreciate knowing whether he intends to return to work or abandon his position"). Romanello's attorney responded with a letter stating, among other things, 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."  Without further discussion with Romanello, Intesa terminated his employment.

Romanello then commenced an action in New York State court alleging that his termination constituted disability discrimination in violation of the NYSHRL and the NYCHRL. Intesa made a motion to dismiss relying upon Plaintiff's counsel's letter. The lower courts dismissed plaintiff's claims under both laws reasoning that Romanello had requested an indefinite leave which is not a reasonable accommodation.

The New York Court of Appeals

The New York Court of Appeals affirmed the dismissal of Romanello's NYSHRL claim, but reinstated his NYCHRL claim. The Court's rationale for distinguishing the two claims focused on the differences in the way the NYSHRL and NYCHRL define "disability", reasonable accommodations," and the differing burdens an employer and employee bear under the two laws. The Court also reasoned that the legislative findings underlying the NYCHRL made clear that it was to be construed broadly in favor of plaintiffs, particularly at the pleadings stage of litigation.

Turning to plaintiff's State HRL claim, the Court of Appeals explained that the NYSHRL requires that, "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 then found that plaintiff's communications with his employer prior to his termination did not offer any indication as to when plaintiff planned to return to work. Accordingly, the Court concluded Romanello had requested an indefinite leave of absence, which is not a reasonable accommodation under the State HRL, and dismissed that claim.

However, since the City HRL was amended to be construed liberally in favor of discrimination plaintiffs, the Court found, on the facts presented, that dismissal of the action was premature. In so holding, the Court ruled:

"Contrary to State HRL, it is the employer's burden to prove undue hardship. And, the City HRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, 'satisfy the essential requisites of the job' (Administrative Code 8-107 [15] [b]). Thus, the employer, not the employee, has the 'pleading obligation' to prove that the employee 'could not, with reasonable accommodation, satisfy the essential requisites of the job.'"  (Citations omitted).

Accordingly, the Court of Appeals reinstated Romanello's disability discrimination claim under the City HRL.

Lessons Learned

In circumstances where an employee is on a medical leave of absence and requests additional leave, employers are well-advised to consult counsel before denying the request or terminating the employee. The particular facts of each leave request must be assessed in due regard for the employee's individual circumstances, and under federal, State, and City law requirements. While it is true that under all the disability discrimination laws, the ADA included, a request for "indefinite leave" may be deemed unreasonable, it is important to remember that "indefinite leave" is a conclusion drawn from individual facts – and the facts do matter. It is also important for employers to understand the differences between, and their obligations under, the ADA, the NYSHRL, and the City HRL. Given the history underlying each of the laws, the employer's burden can vary, as this decision makes clear.

The "take-aways" from this case can be summarized as follows for Human Resources managers and their counsel:

  1. The employer's obligations and burdens under the federal, State, and City human rights laws can differ based on the framing principles underlying each law, as well as the statutory text;
  2. Under the State HRL, a request for "indefinite leave" can be per se unreasonable based on its definition of "disability," the facts presented, and the burdens of pleading and proof;
  3. However, given the more expansive definition of "disability" and "reasonable accommodation" found under the NYCHRL, an employer must prove that a request for a seeming "indefinite leave" is unreasonable and poses an undue hardship. In Intesa, based on the documentary evidence submitted, the employer failed in its burden;
  4. The case highlights how important it is to engage disabled employees in an interactive dialogue in determining "reasonable accommodations," particularly where leaves are requested. It is essential that employers gather sufficient documentary evidence to establish, on the facts and circumstances, that the leave request is unreasonable and/or constitutes an undue hardship, especially if the employer wishes to move for dismissal at the pleadings stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions