Terminating the Employment Relationship

to effectuate a disability retirement prior to the termination of 4850 benefits, unless the member consents to an earlier retirement date. 229

In addition, for both miscellaneous and local safety employees, the employee is entitled to exhaust sick leave and compensatory time off, where accrued, prior to the effective date of retirement, unless the member applies for or consents to his or her retirement as of an earlier date, or unless, with respect to sick leave, the provisions of the public agency’s rules provide to the contrary. 230 For example, if the employer provides for the use of sick leave for any “illness or injury,” and the employee does in fact have an illness or injury that precludes him or her from performing his or her duties, the employee is entitled to exhaust all sick leave accruals before the effective date of retirement. 231 California courts have previously held that if an employer’s sick leave policy is limited to “non-service related sickness or injury,” the employee is not entitled to exhaust sick leave prior to the effective date of retirement. 232 It should be noted that those cases were, however, limited to determining the effective date of retirement. Another California court held that an employer’s sick leave policy that limited the use of such leave to employees with non-service related injury or illness discriminated against employees based upon the industrial nature of the employee’s injury or illness and is therefore unlawful. 233 ii. ’37 Act The effective date of retirement is the expiration date of any leave of absence with compensation to which the member is entitled under the Workers’ Compensation Law (i.e. Labor Code section 3201, et. seq .) or effective on the occasion of the member’s consent to retirement prior to the expiration of such leave of absence with compensation. The disability allowance shall be effective as of the date such application is filed with the retirement board, but not earlier than the day following the last day for which the member received “regular compensation” (including compensation received for vacation or sick leave of absences). 234 If a member accepts another position in the county or district employing him or her that accommodates his or her work restrictions, and the acceptance of that position is intended to be temporary until such time as the member’s disability retirement application is accepted by the retirement board, the effective date of retirement shall be the last day for which he or she received “regular compensation” in the position from which the employee was disabled. However, the amount of retirement benefits the member is entitled to receive during that period shall not be more than the difference between what the member earned in his or her regular position from which he she became disabled and the amount earned by the member in the temporary position. 235 However, the retirement of a member who has been granted or is entitled to sick leave shall not become effective until the expiration of such sick leave with compensation unless the member consents to retirement at an earlier date. If it is determined that the member’s application was delayed by administrative oversight or by inability to ascertain the permanency of the member’s incapacity until after the date following the day for which the member last received regular compensation, such date will be deemed to be the date the application was filed. 236

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 67