The Employment Lawyer’s Prescription: 
Is a Request for an Indefinite Leave of Absence a Request for 
a Reasonable Accommodation?

By: Steven M. Berlin and Bradley J. Bartolomeo
Friday, January 3, 2014

What if you have an employee who is on a medical leave of absence and unable to provide a return-to-work date? Do employers have to hold the position open in case the employee might be able to resume his or her duties sometime in the future? In New York, the answer may depend on whether the employee works in New York City.

Recently, in the matter of Romanello v. Intesa Sanpaolo, S.p.A., the New York Court of Appeals addressed the issue of whether a request for an indefinite leave of absence is a reasonable accommodation. When a bank executive did not return from a medical leave after expiration of his three months of protected leave under the Family and Medical Leave Act, the bank’s attorney sent a letter inquiring as to the executive’s intentions. The executive’s lawyer responded that his client’s return-to-work date was “indeterminate” but that the executive had no intention of abandoning his position. Faced with what it interpreted as a request for an indefinite leave of absence, the bank terminated the executive.

The executive sued, claiming disability discrimination under both the New York State and City Human Rights laws. The bank successfully moved to have the lawsuit dismissed. Eventually the case was appealed to New York’s highest court, the Court of Appeals, which considered whether the executive can pursue a claim against the bank for firing him after he indicated his desire to continue working but because of his condition could not provide a return-to-work date.

Under the State Human Rights Law, a protected disability exists if the employee is able to perform in a reasonable manner the activities involved in the job or occupation with a reasonable accommodation that does not impose an undue hardship on the business. To prevail on a disability discrimination claim, the employee must request a reasonable accommodation and show that the employer unreasonably failed to provide it. The court found the state law claim was properly dismissed. By never offering any indication as to when he would return to work, the executive failed to establish that he requested a reasonable accommodation to enable him to perform his essential functions, which the employer could be held responsible for failing to provide.

On the other hand, the court recognized the City Human Rights Law requires that it be broadly interpreted to protect rights of employees. That law broadly defines disability as a physical or mental impairment and places the burden on the employer to prove as a defense that either: (1) the employee could not, with a reasonable accommodation, satisfy the essential requisites of the job, or (2) the accommodation would place an undue hardship on the company. Because the employer had not met its obligation to plead and prove that the executive could not perform his essential job functions with a reasonable accommodation that would not cause undue hardship, the court reinstated the New York City claim.

So, what is the employment lawyer’s prescription when an employee seeks an indeterminate leave of absence from work due to a disability? The answer, obviously, depends on the laws under which the employee is seeking the accommodation. Under the state law, such a request is not a reasonable accommodation. Under the city law, such a request may or may not be a reasonable accommodation; it is up to the employer to plead and prove it is not. In addition, be mindful that an employee working for a company with more than 25 employees may also seek a claim under the federal Americans with Disabilities Act (ADA). Under the ADA, while indefinite leave would usually not be considered a reasonable accommodation, it may be under the specific facts and circumstances at issue. Therefore, when faced with this issue, an employer should perform a thorough and careful analysis with the help of its employment lawyer before responding to such a request.


Steven BerlinPartner Steven M. Berlin is the head of Martin Clearwater & Bell LLP’s Employment and Labor Practice Group. For more information, visit www.mcblaw.com.