There are few “certain” things in employment law, but there are several concepts on which most employers and employment counsel have been able to rely. Until recently, one of those concepts had been that “indefinite” leave is automatically excluded from the definition of a “reasonable accommodation.” However, on Oct. 10, the New York State Court of Appeals – the highest court in the state – called that premise into question with respect to the New York City Human Rights Law (CHRL).
In Romanello v. Intesa Sanpaolo, S.P.A., No. 152, the plaintiff, after working for the defendant for about 25 years, was diagnosed with a series of disorders rendering him unable to work. He was out of work for five months, during which time the defendant paid his full salary. The defendant then sent him a letter asking whether he was planning to return to work or was abandoning his position. In response, the plaintiff sent a letter stating that he has been prevented from returning to work due to his illness and has never indicated any intent to abandon his position. However, he stated he had an “uncertain prognosis and a return to work date that is indeterminate at this time.”
The plaintiff was terminated, and he brought a lawsuit alleging, among other things, disability discrimination under the New York State Human Rights Law (SHRL) and the CHRL. The lower court dismissed both causes of action, and the appellate court affirmed. On appeal, however, the Court of Appeals reversed the dismissal as to the CHRL claim only.
The Court began its analysis with an examination of the SHRL and followed the expected course of reasoning. It reaffirmed that indefinite leave is not considered a reasonable accommodation under the SHRL and concluded the plaintiff’s own letter demonstrated that was the exact accommodation he was seeking.
However, it departed from this expected path when turning to the CHRL. The Court started with the general proposition – which by now should be ingrained in the collective consciousness of all New York City employers and their counsel – that the CHRL is broader than its state and federal counterparts and must be construed in favor of discrimination plaintiffs as long as such a construction is reasonably possible. It then looked at the difference in the statutory language between the SHRL and CHRL.
The SHRL, it explained, contains the requirement of a reasonable accommodation within the definition of the word “disability,” which means part of a plaintiff’s initial burden of proof is to demonstrate the existence of a reasonable accommodation that enables him or her to perform the job in a reasonable manner. This definition places the initial burden of proof on the employee. The CHRL, on the other hand, does not incorporate the necessity of a reasonable accommodation into that definition; rather, it “defines ‘disability’ solely in terms of impairments.” The concept of a reasonable accommodation only arises when talking about an employer’s obligations. Thus, the Court reasoned, it is the employer’s burden to prove that a proposed accommodation is an undue hardship, and the employer, not the employee, has the burden of proof – including at the pleading stage – to show that an employee could not, with a reasonable accommodation, satisfy the essential requirements of the job.
Applying this construction to the facts before it, the Court concluded that the plaintiff met the pleading requirements of demonstrating he had a disability under the CHRL, but the defendant did not meet its obligation to plead and prove that the plaintiff could not perform his essential job functions with an accommodation. The Court accordingly reversed the dismissal of the CHRL claim and remanded the case to the lower court.
The CHRL has been a thorn in employers’ sides ever since its amendment and expansion in 2005, and the Romanello case proves this yet again. Given the reversal of the burden of proof, it has become extremely difficult to obtain an early dismissal of a disability discrimination claim where the requested accommodation is indefinite leave. It is unlikely a plaintiff will plead facts in a complaint that will enable a company to satisfy its burden of proof at the pleading stage. Thus, companies will likely be forced to wait until summary judgment before seeking dismissal, and will have to endure full-blown, expensive discovery first.
Moreover, because this decision turns the issue of indefinite leave on its head, it is unclear at this time what proof courts will expect to see that demonstrates it is an undue hardship for an employer to leave a job open indefinitely. The difficulty of taking such a wait-and-see approach is often less tangible than operational, with the uncertainty factor creating problems within the command structure. However, given the breadth with which the CHRL is interpreted, that may or may not be enough to satisfy the courts as an undue hardship.
For additional information on this decision, on an employer’s obligations with respect to employees with disabilities, or on any other employment issue, please contact any member of Gordon & Rees’s Employment or Labor Practice Groups.
To read the opinion, please click here.