Under the Americans with Disabilities Act (“ADA”), there is a liberal standard for determining whether an accommodation is considered “reasonable” and therefore requires employers to provide such an accommodation to a disabled employee. Historically, however, the ADA has never required an employer to provide an employee with an indefinite leave of absence as a reasonable accommodation. This common notion has been challenged in a recent New York Court of Appeals (the “Court”) decision (the state’s highest court).
Romanello v. Intesa
In Romanello v. Intesa Sanpaolo, S.p.A., No. 152 (N.Y. Ct. App. Oct. 10, 2013), the Court held that under the New York City Human Rights Law (“NYCHRL”), an indefinite leave of absence may be a reasonable accommodation. Romanello, an Intesa Sanpaolo bank executive, went out on medical leave for several ailments, including depression. After Romanello used his 12 weeks of Family Medical Leave Act time, he continued to stay home from work for several additional weeks. Intesa inquired as to whether Romanello intended to return to work or abandon his position. The attorney for Romanello responded that Romanello “has not at any time evinced or expressed an intention to ‘abandon his position.’ 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, Intesa terminated Romanello.
Under the ADA and New York’s state Human Rights Law, Intesa would not have been liable because Romanello clearly sought indefinite leave. The Court found otherwise under the NYCHRL because the text of the law differed from that of the other disability discrimination laws. This is no surprise as courts have continually held that the NYCHRL affords protections greater than the ADA and state discrimination laws.
The Court held that the NYCHRL’s definition of “disability” does not include “reasonable accommodation” or “the ability to perform a job in a reasonable manner.” “Rather the [NYCHRL] defines “disability” solely in terms of impairments.” Thus, the NYCHRL requires employers prove the accommodation would cause an undue hardship or the employee could not, with the reasonable accommodation, satisfy the essential job functions.
Under most laws, the employee bears the initial burden of proving the accommodation passed these tests. That is to say, under the NYCHRL there is no accommodation, including indefinite leave that is categorically not a reasonable accommodation. The Court explained that Intesa did not meet its obligation under the NYCHRL to plead and prove that Romanello could not perform his essential job functions with an accommodation of indefinite leave.
Preventive Measures
The Court’s decision highlights the need for employers to take a thorough approach when dealing with a disabled employee. If Intesa engaged Romanello in a discussion about possible alternative accommodations before terminating him, or properly analyzed the costs and benefits of refusing to provide additional leave, then the company may have evaded a lawsuit.
Before terminating a disabled employee when it appears he/she will be out for an indeterminate amount of time, employers should initiate an interactive discussion with the employee. During this discussion, employers should determine what physical or mental limitations the employee might have and see if there are any ways the employee’s position can be adjusted to help him/her come back to work. Employers should also analyze operations to see if the employee can be temporarily transferred to an open position the employee is capable of performing. Working with the employee to find a suitable alternative will protect both parties from headaches in the long run.
Also, before terminating an employee upon notice of their indefinite leave, perform an analysis of how the employee’s absence will affect the organization. If the employee’s absence will not affect the organization’s operations, then it may make sense to grant the employee additional leave. If, on the other hand, the analysis shows there will be an effect on operations, then the employer should sufficiently document such a finding. This documentation can later be used to help prove that the employee’s indefinite absence caused an undue hardship on the organization.