Does Indefinite Leave Now Qualify as a Reasonable Accommodation

In a relatively surprising recent decision set down by New York’s Highest Court in Romanello v. Intesa Sanpaolo, S.p.A., (N.Y. Oct. 10, 2013), the New York Court of Appeals held that the New York City Human Rights Law (“NYCHRL”) continues to afford broad protection to aggrieved employees, but now places the burden on employers to prove that an employee cannot, without reasonable accommodation, satisfy the essential requisites of the job, and quite possibly that a request for indefinite leave, in and of itself, may not be a bar to a disability discrimination suit. This monumental decision should continue to remind employers that they must be careful when attempting to be brazenly dismissive of an employee’s accommodation request.

The underlying facts of the Romanello case are as follows: Giuseppe Romanello was an executive employed at the New York branch of Intesa Sanpaolo S.p.A. Romanello, who had been on paid leave for more than four months due to serious depressive related illnesses, and informed his inquiring employer through counsel that his return to work was “indeterminate,” but that he had no intention of leaving his position. The company then responded by terminating Mr. Rpmanello’s employment. He then filed a lawsuit under the New York State Human Rights Law (“NYSHRL”) and the NYCHRL alleging disability discrimination. The lower court dismissed both causes of action, and the intermediate court affirmed on both counts.

On appeal, the Court of Appeals held that Mr. Romanello’s claim was possibly viable under the NYCHRL because it affords broader protection than the NYSHRL. The dissent happened to disagree with this contention, stating that the test for disability under both is very similar in substance. In particular, the Court noted that the NYCHRL defines disability broadly in terms of “impairments” and places the burden on the employer to prove either: (1) that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job or (2) that the accommodation would place an undue hardship on the company. Because the employer had failed to meet its requirement to plead and prove that Mr. Romanello could not perform his essential job functions with an accommodation, the court reinstated the NYCHRL claim, essentially also holding, that it’s possible that indefinite leave could qualify as a reasonable accommodation. It will be interesting to see how the lower Courts interpret this decision and whether its effects will further expand the protections afforded to aggrieved employees.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at(212) 233-6400 or contact us online.


How is New York City Planning to Accommodate Pregnant Employees

Back in October of last year, we posted a blog concerning a Federal Bill, the Pregnant Workers Fairness Act, which Democrats in the Senate were trying to push through the Congress. Regrettably, due to the recent madness and polarization of the Congress, nothing was ever brought to the floor for a vote. Fortunately, New York City and its elected representatives have heeded the call of pregnant women from all across the City who have been unfairly denied accommodations, in an effort to ease the stresses of their pregnancy while working.

Last week, the New York City Council unanimously passed their own version of the Pregnant Workers Fairness Act, a bill that ensures that the current protections afforded to disabled workers extend to pregnant workers as well, including the right to reasonable accommodation to ensure their ability to comfortably and continuously work through their pregnancies. The bill expands the New York City’s Human Rights Law, which is already one of the most expansive in the country.

What this bill, if not vetoed, will eventually do is treat pregnancy as if it were a disability under the New York City Human Rights Law (“NYCHRL”). Under the NYCHRL, a disability is defined as physical, medical, mental or psychological impairment or record of such impairment. Therefore, an employer would be required to reasonably accommodate a pregnant woman, so long as that accommodation is not unduly burdensome on the employer.

New York City employers will be required to provide reasonable accommodations for specific pregnancy related needs such as, childbirth, or a related medical condition associated with the pregnancy. Examples of these accommodations may include assistance with manual labor, water or rest breaks, and a period of recovery from childbirth. Employers will also be required to provide pregnant workers with a written notice of their rights.

In the event that an employer fails to grants these rights to pregnant employees, aggrieved pregnant workers will be allowed to bring actions for damages under the NYCHRL, which can include back-pay, front-pay, compensatory damages and punitive damages, and other remedies such as requiring a change in the employer’s practices.

In enacting legislation to better protect these workers, New York City  joins just a handful of cities from states that have passed comparable legislation since 2000, which include Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, and Texas – yet no protection has been provided for pregnant workers in the rest of the country.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at(212) 233-6400 or contact us online.