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November, 2013

All of us at Moskowitz & Book wish all of you a Happy Thanksgiving and a Happy Hanukkah!
Does the NYC Anti-Discrimination Law Require an Employer to Grant an Indefinite Leave of Absence?

If an employee requests an indefinite leave of absence, does an employer have to accommodate and hold the job? Can that ever be a reasonable request? In Romanello v. Intesa Sanpaolo, S.P.A., 22 N.Y.3d 881 (2013), the New York Court of Appeals confirmed that the broad protections of the New York City Human Rights Law ("HRL") extend into the disability discrimination arena. The decision is significant for employees and employers alike.

In Romanello, the plaintiff had worked for Intesa for many years when he became unable to work as a result of major depression. After taking leave for five months, Intesa informed Romanello's lawyer that his Family and Medical Leave Act leave was set to expire and that he should inform the bank whether he intended to return to work. The lawyer responded that Romanello was suffering from severe and disabling illnesses that continued to prevent him from working; that he had never indicated an intention of abandoning his position; and that he was unable to work and it was unclear when he would be able to return. Intesa responded by firing Romanello.

Romanello sued Intesa for disability discrimination under the New York State and the New York City HRLs. The Court concluded that Plaintiff did not state a claim under the State law because requesting an "indefinite leave of absence" could not qualify as a "reasonable accommodation" under the State HRL.

By contrast, the Court concluded that Romanello did have a claim under the City law. The Court emphasized that the City HRL has broader protection than the State HRL. The Court went on to say that the City law did not define disability in terms of the ability to perform a job in a reasonable manner, but instead defines disability "solely in terms of impairments" and requires an employer to "make reasonable accommodation to enable a person with a disability to satisfy essential requisites of a job."

As a result, under the City HRL "it is the employer's burden to prove undue hardship" in response to a requested accommodation for a disability. Thus, rather than requiring an employee to plead that he could satisfy the essential requisites of the job, the City HRL requires the employer to plead as an affirmative defense that the employee cannot satisfy the essential requisites of the job with a reasonable accommodation. Once an employee has made his disability known to his employer, the employer has the obligation to plead and prove that the employee could not perform the essential functions of his job with an accommodation. Because Intesa had not pled such a defense, the Court concluded that Plaintiff's City HRL claims should not have been dismissed.

The implications of Romanello, for employees and employers covered by the City HRL, are significant.

1)   An employee may seek an accommodation for "any physical,
      medical, mental or psychological impairment";
2)   No requested accommodation is unreasonable on its face; and 
3)   The burden is on an employer to carefully consider any employee
       request for an accommodation, and the employer can only refuse
       to grant the accommodation if it can prove that it would create an
       undue hardship or would not be effective in enabling the employee
       to perform the essential requisites of the job. 


If you have further questions about disability discrimination claims under the Romanello standard, feel free to contact Chaim Book, or Todd Parker,    

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