Leave Of Absence Can Be ‘Reasonable Accommodation’ Under ADA

Charles Kesecker was a police officer for the Marin Community College District in California. When Kesecker was diagnosed with Generalized Anxiety Disorder, the District required him to submit to a fitness-for-duty evaluation. After an examination, a doctor advised the District that Kesecker was not psychologically fit for duty as a police officer and that it was unlikely that Kesecker would be fit for duty “in the near term.”

Kesecker requested a leave of absence so he could undergo treatment in an effort to become fit for duty. When the District rejected his request, Kesecker felt he was forced to retire, and did so. He then brought a lawsuit against the District under California’s equivalent of the Americans With Disabilities Act.

The question for the California Court of Appeals was whether the District was required to consider a leave of absence as a possible reasonable accommodation. The Court found that the District had such an obligation, and returned the case to the lower court for trial.

The Court wrote that “there is no dispute that Kesecker’s diagnosed general anxiety disorder may constitute a disability covered by the ADA; the question here is whether a reasonable trier of fact could find that Kesecker’s identified accommodation – a leave of absence and a new fitness for duty evaluation – was reasonable, at least on its face, under the circumstances of this case.

“A finite leave can be a reasonable accommodation provided it is likely that at the end of the leave, the employee would be able to perform his or her duties. However, reasonable accommodation does not require an employer to wait indefinitely for an employee’s medical condition to improve to the point where he can resume working.

“Kesecker still bears the burden of proving that it was likely or plausible that he could return to work with the accommodation. Drawing all reasonable inferences in his favor, evidence outside of a second medical professional opinion supports a finding that Kesecker likely would have been fit for duty as a police officer after a finite leave of absence. First, in 2007 a doctor found that Kesecker could return to work after only three months off due to stress. Second, the 2009 evaluation was not initiated because of any concerns with Kesecker’s work performance, but rather because of a medical evaluation conducted in 2007. Kesecker in fact consistently received positive performance evaluations.

“Third, Kesecker did not advise the District he was disabled; rather, the District unilaterally concluded that Kesecker could not return to work based solely upon evaluation. Kesecker insisted that he could return to work and repeatedly asked that he be placed in the work schedule. Finally, in October and November 2009, two different doctors found Kesecker did not pose a risk to carry concealed weapons.

The question of reasonable accommodation is ordinarily a question of fact requiring a trial. It is a disputed question of fact here as well.”

Kesecker v. Marin Community College Dist., 2012 WL 6738759 (N.D. Cal. 2012).