• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

  • Home
  • About William D. Goren, J.D., LL.M.
  • Contact
  • Log In

New York human rights Law

Is indefinite medical leave a reasonable accommodation under the ADA? ? State Law? Local municipal law?

October 28, 2013 by William Goren 1 Comment

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.

Filed Under: State Cases, Title I Tagged With: 10th circuit, ADA, Americans with Disabilities Act, definite medical leave, essential functions, indeterminate leave, interactive process, Justice Abdus-Salaam, Kansas, New York City human rights law, New York Court of Appeals, New York human rights Law, Opening gambit, reasonable accommodation, Robert v. Board of County Commissioners of Brown County, Romanellow v. Intesa Sanpaolo, undue hardship

Primary Sidebar

Search

Subscribe to Blog

NOW AVAILABLE

Understanding the ADA 4th Edition

ABA JOURNAL WEB 100

2014-2018: 5 Consecutive Years!

2017 & 2016 FEEDSPOT TOP 100 LEGAL BLOG

Recent Posts

  • Intent to Return December 3, 2019
  • Hostile Work Environment Issues and Demotion as a Reasonable Accommodation November 18, 2019
  • Interactive Process Framework November 11, 2019
  • Shell Reversed on Appeal November 4, 2019

ADA Legal Resources

  • Department of Justice ADA Web Site
  • Disability Discrimination, EEOC Info
  • DuPage County bar Journal, The Brief
  • Job Accommodation Network
  • Midwest Center for the Law and Deaf
  • National Association of Attorneys with Disabilities (NAAD)
  • Understanding the Americans with Disabilities Act

Articles

  • ABA legal technology resource center roundtable discussion of fixed fees
  • ADA and Mediation/Arbitration: Things to Think About
  • Affirmative-action and persons with disabilities
  • Americans with Disabilities Act Claims: Is a Mixed Motive Jury Instruction Dead?
  • An ADA Checklist as You Go About Your Practice
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Expect huge impact from DOJ regulations implementing Titles II and III of ADAAA
  • Help your institution avoid some common mistakes when dismissing students with disabilities
  • Internet addiction, ADA, and employment
  • Internet and Title III of the ADA
  • Is Your University or College's Homepage Accessible to Prospective Students with Visual Impairments?
  • Legal Liability of Buying or Developing Inaccessible Technology
  • Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It up?
  • Service dogs and the ADA
  • Should Your Law Firm's Internet Site Be Accessible to the Persons with Disabilities
  • The Americans with Disabilities Act and Employment
  • The Ins and Outs of Nevada’s Service Animal Laws
  • The Legal Universe of Internet Accessibility and What You Can Do about It
  • What is the statute of limitations for ADA claims

Blogroll

  • architectural accessibility
  • disability law blogspot
  • FMLA Insights Blog
  • labor and employment law blog (management)
  • Lawffice Space Blog
  • management employment law blog (California based firm)
  • Ohio Employment lawyer blog (Jonathan Hyman-management)
  • PLAINTIFF California labor and employment law blog
  • plaintiff employment law blog
  • Robin Shea's employment and labor law insider blog (management-Constangy, Brooks & Prophete)
  • Second Circuit civil rights cases
  • state sovereign immunity in Scotus blog
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. Emotional support animal
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Auer Deference blog entry in SCOTUS blog
  • Blog entry discussing oral argument in Bostock, Zarda, and Stephens referenced in SCOTUS blog
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • Interstate sovereign immunity in SCOTUS blog
  • Is the Texas House violating the ADA by refusing CART
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
  • Sevorson decision analyzed
  • Sheehan decision
  • Supreme Court on Auer Deference blog entry in SCOTUS blog
  • The Physics (and Economics, and Politics) of Wheelchairs on Planes
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA “Accessible” Websites: What Attorneys Need to Know
  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

Footer

Powered by WordPress and the Utility Pro theme for Genesis Framework.