Terminating the Employment Relationship

Second, consider if the denial of the retirement application was for reasons other than a finding that the member was not incapacitated from the performance of his or her usual duties. For example, CalPERS may deny an application for disability retirement if the member refuses to submit to a request for medical examination made by CalPERS. In that instance, the employer will need to decide on its own if the evidence supports a finding that the employee is unable to perform the essential functions of the position. A public employer could risk liability and exposure for making a hasty decision to terminate an employee for disability after the employee is denied a disability retirement application by CalPERS. The risk will depend on the facts of any given situation. Employers are advised to seek legal counsel before making any decision to terminate an employee due to the employee’s medical, physical, or mental inability to perform the essential functions of the job. iii. ’37 Act Government Code section 31725 requires that if the county’s retirement board denies the application for disability retirement of any member and the county has dismissed the member for disability, the county is required to reinstate the member to his or her employment effective as of the day following the effective date of dismissal. If the county disagrees with the determination of the retirement board, its only recourse is to file a petition for writ of mandate in the superior court or by joining or intervening in an action filed by the employee within 30 days of the mailing of such notice. If the court ultimately upholds the denial of disability retirement, the county is still obligated to reinstate the employee, and may have to pay back wages and benefits if it previously dismissed the employee because of the disability. 247 If the retirement board denies the application for disability retirement, the county is not required to immediately return the employee to work. The county is not precluded from denying immediate return to duty if the county determines the employee suffers from a temporary incapacity to perform the job. However, upon denial of disability retirement, the employee may need to be reinstated to paid status. 248 If the employer dismisses an employee because of his or her disability and the retirement board later denies the application for disability retirement, the employer will be required to reinstate the employee with back pay. The issue becomes whether the employer “dismissed” the employee in the first place. If the employer believes the employee is unable to perform the functions of his or her position because of physical or medical impairment, the employer may require the employee to go out on sick leave or unpaid medical leave until the condition improves or until the employer can find a suitable position without constituting a “dismissal.” 249

Stephens v. County of Tulare 250 A detention specialist injured his thumb at work. He returned to work on modified light duty pursuant to doctor’s note. Although his county employer provided work to him that was in keeping with the doctor’s recommendation, the employee complained that his thumb was still hurting. The employee’s supervisor provided a letter to the employee advising that the county believed the tasks required appeared to comply with the recommendations of the doctor.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 71