Principles for Public Safety Employment

should follow-up with the appropriate health care professional concerning possible accommodations.  If the employee is not disabled, is he or she nonetheless suffering from a serious health condition? The employer should carefully consider whether the officer is eligible for leave under the Family Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA) and whether the employee has requested time off.  If the employee is not disabled and not suffering from a serious health condition, yet is unable to perform the essential functions of his or her job, the employer may (depending upon the circumstances) choose to address the issue as one involving performance problems and proceed accordingly, including potentially imposing discipline. 321 Of course, most public safety employees have a constitutionally protected property interest in continued employment and may not be dismissed without pre-disciplinary due process and an opportunity for a post-disciplinary appeal. 322  If the employee is disabled and no reasonable accommodation would enable the employee to perform the essential job functions, the employer may have an obligation to apply for a disability retirement on behalf of the employee (see below).

Section 7 L ABOR C ODE S ECTION 4850 AND D ISABILITY R ETIREMENT A vexing problem for employers of public safety employees is the amount of paid time off for industrial injuries officers and firefighters use under Labor Code section 4850. Particularly problematic are those instances when an agency is certain an employee will not be returning to work and yet the agency continues to pay “4850” benefits to the employee for a full year before the employee retires. The following is a discussion of the basic rules regarding paid time off for industrial injuries and opportunities for reducing your agency’s costs associated with “4850” time. A. O VERVIEW OF L ABOR C ODE S ECTION 4850 B ENEFITS Labor Code section 4850 is a part of the Workers’ Compensation Act. When certain public safety employees, are injured on the job, Section 4850 provides those employees a leave of absence for up to one year “without loss of salary” instead of the scheduled workers’ compensation benefits applicable to most other employees. After one year, the employee is entitled to an unpaid leave of absence and whatever regular workers compensation benefits may be available. 323

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 101