By: Erin McPhail Wetty

As discussed in our August 28, 2013 blog entry HERE, in most jurisdictions, a leave of absence may be a reasonable accommodation for a disabled employee, if the leave would allow the employee to return to work in the foreseeable future.  No court had affirmatively held (at least in any published opinion) that an indefinite leave of absence, which does not include an anticipated return-to-work date, could be a reasonable accommodation.

That was true until earlier this month when a New York state court held that an indefinite leave of absence may be a reasonable accommodation under the New York City Human Rights Law.

Start Spreading The News!  I’m Leaving Today!

On October 10, 2013, in Giuseppe Romanello v. Intesa Sanpaolo, S.p.A., No. 152 (N.Y. Ct. App. Oct. 10, 2013), the New York State Court of Appeals held that an indefinite leave of absence may be a reasonable accommodation under a New York City ordinance, unless an employer can show that the indefinite leave would cause an undue hardship.  The court’s ruling changes the dynamics by moving the burden to the employer to establish an undue hardship defense, rather than cutting off the analysis at the employee’s failure to show a reasonable accommodation that would allow him or her to perform the essential functions of the job.

Thankfully, federal courts across the country have repeatedly held that indefinite leave is not a reasonable accommodation under the ADA, but employers with operations in New York City should be aware of the recent ruling and the City’s desire to construe its laws broadly in favor of employees.  New York’s holding may also be a sign of things to come in other employee-friendly jurisdictions, such as California, as well as New York’s changing legal landscape. 

Stay tuned to the Employment Law Lookout for further updates.  If you have any questions, please contact the author, a member of the Absence Management and Reasonable Accomodation team or your Seyfarth attorney.