Terminating the Employment Relationship

“‘ Disability ’ and ‘ incapacity for performance of duty ’ as a basis of retirement, mean disability of permanent or extended duration, which is expected to last at least 12 consecutive months or will result in death, as determined by the board, or in the case of a local safety member by the governing body of the contracting agency employing the member, on the basis of competent medical opinion. ” 177 For ’37 Act employers, a member is qualified for a disability retirement if is the member is permanently incapacitated from the performance of duty. 178 Thus, there is a two part analysis: (1) whether the employee is incapacitated from the performance of their usual duties; and (2) whether that incapacitation is permanent (for PERS and ’37 Act) or of extended and uncertain duration (for PERS only). 179 What is “Incapacitated”? Incapacitated means the substantial inability of the employee to perform their usual duties. 180 The member need not be substantially incapacitated from the performance of the position with any public agency. Rather, the member need only be substantially incapacitated from the performance of the position with the member’s current public employer. 181 If the employee’s disability is the result of an injury incurred in the course and scope of employment for which a workers’ compensation claim was filed, the employee will usua lly receive a “disability rating” from a physician in the underlying workers’ compensation case. This rating is typically stated in terms of a percentage of permanent disability. However, these permanent disability ratings are not dispositive as to whether the employee is substantially incapacitated from the performance of their usual duties for purposes of a disability retirement. Therefore, an employer should not rely on these disability ratings, alone. 182 Similarly, the presumptions under the Labor Code are inapplicable for the purposes of determining whether an employee is entitled to a disability retirement. 183 The employee must also be presently, substantially incapacitated. The fact that the employee’s condition coupled with the performance of their usual job duties may increase the employee’s chance for future injury, does not support a finding that the employee is substantially incapacitated at the time of application for a disability retirement. Generally, prophylactic work restrictions will not suffice to find an employee presently incapacitated. In addition, an employee’s “fears” of being injured further in the course of employment cannot be considered “mentally disabling” in order to qualify the employee for disability retirement. 184 However, whe re the employee’s condition is such that if the employee were to return to the work environment and it is medically certain the employee would become immediately disabled because of the nature of the employee’s condition, then the employee may be found pre sently incapacitated. 185 b. What A re the “Usual Duties”? In determining if an employee is substantially incapacitated from performing their usual duties, an employer must look at the totality of the member’s job duties and the frequency at which those duties are performed. The usual duties are typically listed in the job description, but the job description should not be the exclusive source of ascertaining the member’s usual duties. 186 a.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 59