New York State’s Highest Court Confirms that a Request for Indefinite Leave May Constitute a Reasonable Accommodation Under the New York City Human Rights Law
The New York Court of Appeals – New York’s highest court – is out with a new decision this week addressing our favorite statutory friend (foe?), the New York City Human Rights Law – this time in the context of a disability discrimination claim. In a word, the court, in Romanello v. Intesa Sanpaolo, refused to create a bright line rule that an employee’s request for an indefinite leave of absence to accommodate a disability is per se unreasonable under the City Law. This stands in contrast to the judicially-created rule that such requests are unreasonable under the New York State Human Rights Law and the federal Americans with Disabilities Act. Instead, the Court in Romanello ruled that the employer must show that such a request would constitute an undue hardship – a showing Intesa did not make on its motion to dismiss, allowing Romanello’s claim to survive.
In light of this decision, I’m guessing you may read a lot of (management side) blog entries and other analyses hemming and hawing over the City Law’s ever-expanding reach, but I’m not going to fall into that camp (this time). This decision does not strike me as all that controversial given the City Law’s statutory dictates and express language, and because it is consistent with the Court’s interpretations of this Law over the last five years. To me, it really just seems that the Court is endorsing the First Department’s 2009 Phillips decision, which, along with the First Department’s 2009Williams decision, really kick-started the New York courts’ application of the City Law’s liberal independent analysis requirement.
The facts of this case are relatively straightforward. A doctor diagnosed Romanello with a series of mental disorders including major depression, and Romanello sat out for nearly five months. At some point, Intensa sent Romanello’s attorney a letter noting that Romanello was about to exhaust his FMLA leave and asking whether he intended to return to work. Romanello’s attorney responded that his condition continued to prevent him from serving in any capacity and that he could not provide a date certain on which his client could return to work. Intesa promptly terminated Romanello’s employment.
As many of our readers know by now, exhaustion of an employee’s FMLA leave entitlement does not give an employer free reign to fire that employee if the employee is still “disabled.” In that scenario, the disability discrimination laws require employers to first engage the employee in what’s called the “interactive process” to see whether it can provide a “reasonable accommodation” that will allow the disabled employee to continue to perform his or her job. It has become a generally accepted proposition that under the ADA and New York State discrimination law, employee requests for extended leave, beyond what the FMLA affords, may qualify as a reasonable accommodation, but not requests for an indefinite amount of leave. That was not certain with respect to City Law claims, however. The Romanello decision has finally put an end to the uncertainty.
In the case of the City law, an employer cannot lawfully fire a disabled employee unless it can show that he or she cannot “satisfy the essential requisites of the job” even with a reasonable accommodation. To do that, the employer (not the employee) must show that the requested accommodation would cause it “undue hardship.” A request for indefinite leave does not by itself constitute an undue hardship; instead, the employer must make that determination on a case-by-case basis, including by addressing four factors:
The nature and cost of the accommodation;
The overall financial resources of the facility or the faculties involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
The overall financial resources of the employer; the overall size of the business of the employer with respect to the number of its employees, the number, type, and location of its facilities; and
The type of operation or operations of the employer, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.
Imagine a clerical worker who, like Romanello, suffers from major depression and requests an indefinite leave of absence. What if during his FMLA leave the employer utilized temporary workers to fill the clerical worker’s role at little or no additional cost, and could readily do so in the future? In such a circumstance, a court applying the City Law could conclude that it would not constitute an undue hardship for the employer to accommodate the employee with an indefinite leave.
Romanello was a former Intesa executive, not a clerical worker, so it is more likely that his indefinite absence would create an undue hardship. But it does not appear that Intesa ever actually analyzed Romanello’s request. Rather, it just assumed that the indefinite leave would be an undue hardship, which is why the Court refused to dismiss Romanello’s City Law claim. The point here is that employers subject to the City Law must address employee disability accommodation requests on a case-by-case basis, and not dismiss any accommodation requests outright. You may easily reach the conclusion that an indefinite leave is untenable, but you have to at least go through the analysis (and please do it in writing).
So, the lesson as always: go one step further when dealing with the New York City Human Rights Law. Is this frustrating for employers operating in New York City? Of course. Is it the court’s fault? No. The New York City Council deliberately enacted a broad statutory scheme designed to favor employees. To help eradicate disability discrimination, they made a policy choice to classify all accommodations as reasonable unless the employer can prove the accommodation would create an undue hardship. They had every right to pass this law whether you agree or disagree with it, and the Court of Appeals in Romanello was merely recognizing as much.