Principles for Public Safety Employment

temptation is understandable, there are legal restrictions which could pose a trap for the unwary employer. When it appears a public safety employee may not be coming back from an industrial injury/illness, an employer should first determine whether the injured/ill employee has a right to FMLA/CFRA leave and/or whether the employee is disabled within the meaning of the ADA or FEHA. Assuming the employee has exhausted his FMLA/CFRA leave and the employer cannot “reasonably accommodate” the employee (after good faith interactive discussions with the employee) as required under the ADA and FEHA, a public safety employer must remember that an employee cannot simply be separated from service because of disability. An employee who is on a lengthy medical leave is not separated from service. 337 Rather, as set forth in Government Code section 21153, an employee who is eligible for a disability retirement must be retired for disability unless the employee waives the right to retire for disability and 1) elects to withdraw contributions; 2) or permits his/her contributions to remain in the fund with rights to service retirement as provided in Government Code section 20731. 338 As explained below, the employer may have the duty to apply for a disability retirement on the employee’s behalf in this situation. 339 D. R ETIREMENT IN L IEU OF T ERMINATION AND CCW P ERMITS A peace officer who is “honorably” retired is presumptively entitled to a permit to carry a concealed weapon (CCW); a peace officer who is not honorably discharged is not. 340 Employees who agree to a service retirement in lieu of termination is not “honorably” retired, and therefore is not entitled to a CCW permit. 341 However, employees who have taken disability retirement, even if they have done so to avoid pending disciplinary termination, are within the statutory definition of “honorably” retired. 342 In order to deny a CCW permit, the employing agency must make a determination there is good cause to do so, and provide the employee a hearing to contest this determination. 343 E. A PPLYING FOR A D ISABILITY R ETIREMENT FOR A P UBLIC S AFETY E MPLOYEE If an agency’s governing body (or its designee) determines that an employee is incapacitated physically or mentally with respect to the performance of his or her duties and is eligible for a disability retirement, it may (and under some circumstances is required to) retire the employee for disability. 344 If an employee is properly retired for a disability, this will usually end the employer’s obligation to pay “4850” benefits. 345 1. F ORCED R ETIREMENT : W HEN THE E MPLOYEE D OES N OT C ONSENT Government Code section 21164 provides that, “[n]otwithstanding any other provision of this article, the retirement for disability of a local safety member, other than a school safety member, shall not be effective without the member’s consent earlier than the date upon which leave of absence without loss of salary under Section 4850 of the Labor Code because of the disability terminates, or the earlier date during the leave as of which the disability is permanent and stationary as found by the Workers' Compensation Appeals Board.” 346 In other words, an

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 105