Terminating the Employment Relationship

However, the employee’s statements led county to believe he was not able to work because of his injury. The letter advised the employee not to return to work until further notice, or until the employee’s condition improved to the point he could return to light duty or regular assignment. The employee remained off work on sick or personal time, and never sought to return to work. Instead, the employee received sick and personal pay and 4850 benefits. After vocational rehabilitation, the employee sought positions with the county, but was unsuccessful. He later filed for a disability retirement. The board of retirement denied his application for a disability retirement. The employee then sent a letter to the county sheriff-coroner demanding reinstatement pursuant to Government Code section 31725 and filed a government tort claim seeking retroactive wages. The county reinstated the employee, but denied him retroactive wages. The employee filed a writ of mandate to compel the county to reinstate him retroactively to the date he was provided notice not to return to work. The California Supreme Court ultimately determined the employee was not entitled to this relief. The only question in this case was whether the county “dismissed” the employee for disability within the meaning of Section 31725. Here, the county did not “dismiss” the employee. An employer does not functionally or effectively terminate an employee by telling him/her to go out on sick leave until his/her medical condition abates sufficiently to enable him/her to return to the job.

c. Can the Determination be Appealed? CalPERS’ or the county retirement board’s decision on the application for disability retirement is not the last step in the disability retirement process. The determination may be reconsidered and/or appealed. A discussion of the appeal by a local safety member in a PERS agency is discussed below. i. PERS Miscellaneous Members A miscellaneous CalPERS member may appeal a denial of disability retirement directly to CalPERS within 30 days from the date of the notification letter. The appeal is then heard by an administrative law judge according to the procedures set forth in the Administrative Procedures Act. 251 A member may also appeal a decision by CalPERS that the disability was non-industrial in nature. The member must appeal by filing a “Petition for Finding of Fact” with the Workers’ Compensation Appeals Board, requesting a finding of industrial causation pursuant to Government Code section 21166. 252 The Petition for Finding of Fact must be served on CalPERS. During this process, the member and CalPERS must abide by the procedures of the Workers Compensation Appeals Board. Although Workers’ Compensation Appeals Board procedures are used, PERS substantive law is applied to determine whether the disability retirement is industrial in nature. 253

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 72