Terminating the Employment Relationship

If an employee’s application for disability retirement is denied, the employer must not terminate the employee because of the employee’s actual or perceived disability. Instead, the employer must engage in the interactive process and endeavor to find a reasonable accommodation. If no reasonable accommodation can be made, the employer should contact legal counsel as to the next steps. This workbook is not intended to cover all of the ins and outs of the ADA, FEHA, the interactive process and disability discrimination. Before making any decision to terminate an employee due to a physical, medical, or mental disability, employers are advised to seek legal counsel. ii. CalPERS Government Code section 21153 states that “an employer may not separate because of disability a member otherwise eligible to retire for disability, but shall apply for disability retirement of any member believed to be disabled, unless the member waives the right to retire for disability….” This code section has been interpreted to mean, at the very least, that an employer must file an application for disability retirement on behalf of an employee believed to be disabled. An employer believes an employee to be disabled if the employer has made the determination that it cannot offer the employee work that is within the employee’s disabling limitations, while allowing the employee to remain in the same rank or position, with the same salary, benefits, and real promotional opportunities. 245 When the employee at issue is a local safety member, the public agency determines in the first instance if the member is qualified for a disability retirement. Arguably, if a public agency does not believe that a local safety member is substantially incapacitated from the performance of his or her duties for a permanent or extended and uncertain duration, the public agency cannot, on the other hand, say that it cannot accommodate the employee’s disabling condition. 246 This is not to say that an employer must immediately put a local safety member to work upon denying the application for disability retirement. In some instances, although the member may not qualify for a disability retirement, a temporary leave of absence may be appropriate. However, where the employee at issue is a miscellaneous member, the issue is more difficult to resolve. CalPERS makes the determination as to whether a miscellaneous member is substantially incapacitated for the performance of his or her usual duties for a permanent or extended and uncertain duration. Although CalPERS may believe the miscellaneous member is not disabled for purposes of retirement, the public employer may have a contrary opinion. First, if a public employer believes a miscellaneous member is unable to perform the essential functions of the job, but CalPERS denies the application for disability retirement, the employer should ask, “why?” Perhaps there is something the employer missed or misunderstood about the member’s condition. For example, CalPERS may have found that the miscellaneous member is expected to recover within six months. If so, it may be a reasonable accommodation on the part of the employer to allow the employee to continue employment on unpaid medical leave (and/or to exhaust accrued paid leaves).

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 70