Indefinite Leaves of Absence May Be Required as a Reasonable Accommodation

By Adam Saravay

Oct. 28, 2013

Leave laws have always been difficult to sort through because different statutes impose different requirements, and a leave that clearly would not be required under one statute may be required under another.

For example, when an eligible employee requests a leave of absence based on the employee’s own serious medical condition, the Family and Medical Leave Act requires up to 12 weeks of unpaid leave, but not more; but, the Americans with Disabilities Act or similar state statutes often require a longer leave as a reasonable accommodation.

Despite all the gray areas and fuzzy lines the leave laws create, there has been one fairly bright line that has allowed employers an occasional feeling of certainty: An employer is not required to give an employee an indefinite leave of absence after FMLA leave is exhausted.

Most courts have held that the obligation to provide a reasonable accommodation to a disabled employee does not require an employer to grant a request for an indefinite leave of absence. Even the EEOC has said that “[a]lthough employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration.”

New York’s highest court has just erased that bright-line rule in New York City. In Romanello v. Intesa Sanpaolo S.p.A. (Oct. 10, 2013), the New York Court of Appeals held that the New York state and New York City laws regarding an employer’s duty to accommodate an employee’s disability are different with respect to indefinite leave. The court held that the state Human Rights Law does not require an employer to provide an indefinite leave of absence as a reasonable accommodation; however, it held that the New York City Human Rights Law might require indefinite leave.

The city law requires an employer to provide a reasonable accommodation to an employee with a disability unless the employer can prove that the accommodation would be an undue hardship or that the employee would not be able to perform the essential requisites of the job even with a reasonable accommodation. Even though the plaintiff in the case had clearly requested an indefinite leave of absence, the court held that he could pursue his disability discrimination claim under the New York City Human Rights Law because the employer had not shown that an indefinite leave of absence would impose an undue hardship on the employer or would not allow the employee eventually to perform his essential job functions.

For employees within the five boroughs of New York City, the court of appeals has erased the bright-line rule that an indefinite leave of absence is not required and has replaced it with the much hazier standard that indefinite leave will be required unless the employer can prove that such a leave would not allow the employee eventually to perform the essential functions of the job or that it would be an undue hardship. It is now more important than ever for employers to consult experienced employment counsel before denying an employee’s request for a leave of absence based on a disability.

In most other locations nationwide, the general rule will still apply, and employers will not be required to grant a request for an indefinite leave of absence. However, employers should exercise caution when denying a request for leave as an accommodation of a disability and check on the law in the jurisdiction where the employee works.

Some state or local laws might require longer leaves than the FMLA requires, and courts in some jurisdictions have required employers to show that even an indefinite leave would be an undue hardship. Leave laws create many gray areas in every jurisdiction; New York City’s leave law creates more gray areas than most.

Adam Saravay is a partner with McCarter & English’s Labor & Employment Law practice in Newark, New Jersey. To comment, email FollowWorkforce on Twitter at@workforcenews.

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