Terminating the Employment Relationship

Wolfman v. Board of Trustees of the State Teachers’ Retirement System 186 Elementary school teacher suffered from severe asthma and chronic bronchitis. She received medical advice that it was a “medical certainty” that if she returned to duty, she would become immediately disabled by the worsening of her condition due to her exposure to rampant infectious agents which small children harbor. The Court, applying PERS disability law, held that in this context the teacher was presently and substantially incapacitated from the performance of her usual duties. Stuessel v. City of Glendale 187 A police officer was injured on the job. He filed an application for disability retirement. The City denied his application and offered him a permanent modified light duty position within the police division as either an operations officer or a front desk clerk. The Officer retained his same classification, salary, fringe benefits, and promotional opportunities. However, the City took away his firearm and powers of arrest due to his condition. The Officer challenged the denial of disability retirement. The Court held that where the “employee retains his police officer classification, continues to receive the same salary and fringe benefits and has the same promotional opportunities as other employees in the police officer classification, he may be placed in such available permanent modified light duty position even though he no longer has the right to carry a firearm or make arrests as a peace officer.” The Court relied on the fact that the light duty positions were contained within the police division, suggesting that had the positions been in another department, they may not have been considered within the same classification. The Court held that “a police officer, as a peace officer, has no fundamental or vested right to carry a firearm or exercise the power to make arrests where, as here, there is a proper medical reason involving his own safety and that of the public for removing those rights.”

c. What Is Permanent or Extended and Uncertain Duration? For PERS employers, the employee’s incapacitation to perform the usual duties of his or her position must be permanent in nature, or of an extended duration, which is expected to last at least 12 consecutive months or will result in death. 188 The Legislature has contemplated that employees retired for disability may recover and eventually be reinstated. 189 In fact, until an employee on disability retirement reaches the age of service retirement, an employer of a local safety member, or CalPERS, may require the employee to undergo periodic medical examinations to determine whether the disability continues. 190 CalPERS has indicated that contracting agencies should conduct periodic re-evaluations of local safety member disability retirees who are under the age required for a voluntary service retirement in order to determine whether the retiree remains physically disabled based on the condition that led to the approval of the disability retirement. 191 However, the statute allowing a contracting agency to re-evaluate a local safety member appears to give contracting agencies discretion regarding whether to send an employee under voluntary service retirement age to a re-evaluation. 192 CalPERS employers may wish to consult legal counsel regarding whether to conduct re-evaluations.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 60