Terminating the Employment Relationship

However, the statute allowing a contracting agency to re-evaluate a local safety member appears to give contracting agencies discretion regarding whether to send an employee under voluntary service retirement age to a re-evaluation. 200 CalPERS employers may wish to consult legal counsel regarding whether to conduct re-evaluations. For ’37 Act employers, the incapacity must be permanent. 201 Nonetheless, the ’37 Act contemplates situations where an employee retired for disability may recover and return to employment with a ’3 7 Act agency. The retirement board may require any disability beneficiary under age 55 to undergo medical examination on a periodic basis to determine if the member remains physically or mentally incapacitated for service in the office or department of the county or district where the member was employed and in the position held by the member when retired for disability. 202 If an employee is able to receive remedial treatment and thereby recover in order to return to duty, but the employee unreasonably refuses the remedial treatment, the employee may not be found incapacitated for a permanent, or extended and uncertain duration. 203 However, if the employee’s refusal to submit to remedial treatment is due to the employee’s sincerely held religious beliefs, the employee may not be denied disability retirement benefits if otherwise qualified and eligible. 204 d. Industrial Causation Under PERS, a member qualifies for an industrial disability retirement if the disability is the result of injury or disease arising out of and in the course of the employee’s employment with the public agency contracting with PERS. 205 The industrial component must be “real and measurable.” 206 Under the ’37 Act, a member qualifies for an industrial disability retirement if the member’s inca pacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity. 207 The contribution of the member’s employment to the disability must be more than inconse quential. It must be “real and measurable.” 208 e. Retirement for Disability Must Not Be Used In Place of Discipline In 2008, the Legislature amended both PERS and ’37 Act to explicitly prohibit public employers from using disability retirement as a substitu te for the employer’s disciplinary process. An employee may not be retired for disability unless competent medical evidence supports a finding that the employee is substantially incapacitated from the performance of their usual duties. 209 CalPERS also requ ires that a contracting agency seek CalPERS’ determination that a member is eligible to apply for disability retirement under the following circumstances:

 The disciplinary process is underway;

 The member was terminated for cause;

 The member resigned in lieu of termination;

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 62