Terminating the Employment Relationship

For ’37 Act employers, the incapacity must be permanent. 193 Nonetheless, the ’37 Act contemplates situations where an employee retired for disability may recover and return to employment with a ’37 Act agency. The retirement board may require any disability beneficiary under age 55 to undergo medical examination on a periodic basis to determine if the member remains physically or mentally incapacitated for service in the office or department of the county or district where he or she was employed and in the position held by him or her when retired for disability. 194 If an employee is able to receive remedial treatment and thereby recover in order to return to duty, but the employee unreasonably refuses the remedial treatment, the employee may not be found incapacitated for a permanent, or extended and uncertain duration. 195 However, if the employee’s refusal to submit to remedial treatment is due to the employee’s sincerely held religious beliefs, the employee may not be denied disability retirement benefits if otherwise qualified and eligible. 196 d. Industrial Causation Under PERS, a member qualifies for an industrial disability retirement if the disability is the result of injury or disease arising out of and in the course of the employee’s employment with the public agency contracting with PERS. 197 The industrial component must be “real and measurable.” 198 Under the ’37 Act, a member qualifies for an industrial disability retirement if the member’s incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity. 199 The contribution of the member’s employment to the disability must be more than inconsequential. It must be “real and measurable.” 200 e. Retirement for Disability Must Not Be Used In Place of Discipline In 2008, the Legislature amended both PERS and ’37 Act to explicitly prohibit public employers from using disability retirement as a substitute for the employer’s disciplinary process. An employee may not be retired for disability unless competent medical evidence supports a finding that the employee is substantially incapacitated from the performance of his or her usual duties. 201 CalPERS also requires that a contracting agency seek CalPERS’ determination that a member is eligible to apply for disability retirement under the following circumstances:

 The disciplinary process is underway;

 The member was terminated for cause;

 The member resigned in lieu of termination;

 The member signed an agreement waiving his or her reinstatement rights; or

 The member is convicted of, or being investigated for, committing a work-related felony. 202

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 61