In a prior blog entry, we discussed whether indefinite medical leave was a reasonable accommodation under the ADA. In that blog entry, we discussed a case from the 10th circuit, where they held that indefinite leave was not a reasonable accommodation under the ADA. But that isn’t the end of the matter. What about state law? What about municipal law? The answer may very well depend upon the state and municipality.
Such a case is Romanello v. Intesa Sanpaolo. In this case, the plaintiff was a former executive of a financial services firm and worked there for 25 years until he became ill and unable to work. He was diagnosed with a series of disorders, including major depression. After he had been absent from work for almost 5 months, during which the financial services firm continue to pay his full salary, the financial services firm sent the plaintiff’s lawyer a letter stating that his family and medical leave act was set to expire soon and they would appreciate knowing whether he intended to return to work or abandon his position. The plaintiff’s lawyer responded saying that the plaintiff had been suffering from severe and disabling illnesses that had prevented him and continued to prevent him from working in any capacity, let alone the capacity that he had been serving in. Further, the letter went on to say that the plaintiff had never expressed any interest or intention in abandoning his position. Instead, it noted that he had been sick and unable to work, with an uncertain prognosis and a return to work date that was indeterminate. Instead of engaging in an interactive process, upon receipt of this letter, the financial services immediately terminated the plaintiff, although the plaintiff did seek and eventually receive long-term disability payments under a policy of insurance provided by the financial services company. Plaintiff sued alleging violation of the New York State Human Rights Law and the New York City Human Rights Law. The ADA was not a part of this suit.
So, why are we covering this particular case then? It is important to know that the ADA may not always be the only option for a particular plaintiff. For example, the ADA applies to 15 or more employees. It is not unusual for a state law protecting against discrimination against persons with disabilities to apply to less than that. Also, as is always the case, state and municipal laws are able to go further than federal laws if they so desire. That said, state laws and municipal laws may not define disability the same way as the ADA and the practitioner or a plaintiff need to be aware of that. For example, the highest court of New York noted that the New York State Human Rights Law limits the term “disability,” to a person whom upon the provision of reasonable accommodation does not prevent a person from performing in a reasonable manner the activities involved in the job or occupation sought or held. From the highest court of New York’s discussion, it is reasonable to say that reasonable accommodation under the New York Human Rights Law is defined similarly to the ADA. More specifically, it refers to action taken that permit an employee with a disability to perform in a reasonable manner activities involved in the job and which do not impose an undue hardship on the business. With respect to the New York City Municipal Law, that law requires an employer to make reasonable accommodations that enable a person with a disability to satisfy the essential requisites of a job provided that the disability was known or should have been known by the employer. Further, under the New York City municipal anti-discrimination law for persons with disabilities, the burden is on the employer to prove undue hardship. That is, it is an affirmative defense for the employer that the employee cannot with reasonable accommodation satisfy the essential requisites of the job.
In light of all this, the court decided that indefinite leave under the state Human Rights Law was not a reasonable accommodation. They also decided that indefinite leave under the New York City municipal antidiscrimination law for persons with disabilities might be a reasonable accommodation unless the employer could show, through its affirmative defense, that the plaintiff could not perform his essential job functions with an accommodation, which the employer had not done in this case. In reaching these conclusions, the highest court of New York, the New York Court of Appeals, noted the following:
1. The court cited to a case by way of analogy (the court used the citation signal,”cf.”, which means by analogy), saying that reasonable accommodation under the New York Human Rights Law does not include indefinite leave. Further, nothing in the plaintiff’s communication with his employer or in his complaint gave any indication as to when the plaintiff planned to return to work. Finally, the court looked to a standard dictionary for the meaning of the term, “indeterminate,” the term used by the plaintiff’s lawyer in his letter. The dictionary defined it as not definitely or precisely determined or fixed.
2. With respect to the New York City Human Rights Law, the city human rights Law afforded protection broader than the state human rights law. The court noted that the city human rights law had a provision in it saying that it was to be construed liberally for the accomplishment of the uniquely broad remedial purposes of the law even if that meant going beyond federal and New York State civil and human rights laws. Accordingly, the court said that was the reason why it had previously held that the city human rights law needed to be construed broadly in favor of discrimination plaintiff whenever such a construction was reasonably possible.
3. The city human rights law definition of disability does not include reasonable accommodations or the ability to perform a job in a reasonable manner. Instead, the city human rights law defined disability solely in terms of impairments. Also, the city human rights law does require that an employer make reasonable accommodations to enable person with a disability to satisfy the essential requisites of the job providing the employer knows or should have known of that disability. Finally, as mentioned above, the New York City Human Rights Law imposes the burden on the employer to show, through an affirmative defense, that the employee cannot with reasonable accommodations satisfy the essential requisites of the job.
The Dissent: There was a partial dissent in this decision. Justice Abdus-Salaam said that he agreed with the court’s decision with respect to the New York City Human Rights Law. However, he disagreed with the decision of the majority with respect to the State Human Rights Law in that the financial services company the plaintiff worked for should not have been left off the hook so easily. That is, the letter saying that the plaintiff’s return to work was indefinite should have activated the interactive process to see if any reasonable accommodation would work and that it was not consistent with the State Human Rights Law for the financial services company to terminate the plaintiff upon receipt of the letter without engaging in the interactive process.
Takeaways:
1. Under the ADA, as mentioned in a previous blog entry noted above, indefinite medical leave is not going to be a reasonable accommodation.
2. State laws may vary as to whether indefinite medical leave is going to be a reasonable accommodation. Most, will probably take the view of the highest court of the state of New York in saying that indefinite medical leave is not a reasonable accommodation under their state law.
3. Always be aware that municipal laws may be involved as well. Those municipal laws may go beyond federal and state laws in their protection for persons with disabilities. New York City is currently in the process of transitioning mayors and so it would be hard to say whether you might see a push to amend the New York City antidiscrimination laws with respect to persons with disabilities so as to not allow for an indefinite medical leave of absence to be a reasonable accommodation. Or, alternatively, whether there would be a push to amend the New York City antidiscrimination law to more closely track the wording of the State Human Rights Law.
4. The partial dissent has now given plaintiffs ammunition to argue, certainly under state laws and municipal laws if not the ADA, that a request for indefinite leave should only be considered as the opening parlay into the interactive process. Therefore, before an employer automatically terminates someone who says that they have every intention of returning to work but has no idea when, the employer should check their jurisdiction’s view of their state laws and municipal laws. Also, the employer would want to check into just how receptive their jurisdiction might be to the argument that a request for an indefinite leave under state laws, municipal laws, and even the ADA, should be considered an opening gambit in the interactive process.