Terminating the Employment Relationship

The application for a disability retirement must be filed either: (a) while the member is in service; (b) within four months after the discontinuance of the service of the member, or (c) while the member is physically or mentally incapacitated to perform duties from the date of discontinuance of service to the time of application or motion. 223 In addition, for PERS agencies, an application may also be filed while a member is on an approved leave of absence or while the member for whom contributions are made by the employer under Government Code section 20997 while the employee is absent on military service. 224 A member may apply for and receive a service retirement pending determination on a disability retirement application, so long as the application for disability retirement is made within the above time limits. 225

Lazan v. County of Riverside 226 A deputy s heriff was injured on the job and went out on workers’ compensation leave. She was later found permanent and stationary, but with physical restrictions. The deputy filed an application for PERS disability retirement, but the County denied her application. The County told her to report for duty at a particular station. When she reported for duty, her captain wrote a memo stating there was no permanent modified light duty position available at that station, and the deputy was directed to go home. The deputy demanded that the County file an application for disability retirement on her behalf pursuant to Government Code section 21153. The County refused and the deputy filed a petition for writ of mandate to compel the County to file the application. The court granted the d eputy’s petition, finding that Government Code section 21153 imposed a mandatory duty on the County to apply for disability retirement if the employee is “believed to be disabled.” I f an employer determines it cannot accommodate an employee’s medical/psychological restrictions while maintaining the employee in the same classification with the same salary, benefits, and promotional opportunities, or objectively acts as if it has made s uch a determination, then the employee is “believed to be disabled” for the purposes of triggering the employer’s duty to file an application for PERS disability retirement on the employee’s behalf .

5. L ABOR C ODE S ECTION 4850 AND I NDUSTRIAL D ISABILITY R ETIREMENT OF S AFETY M EMBERS Certain specified safety employees who are temporarily totally disabled are entitled to “4850 benefits” or “4850 leave.” This type of leave is created by Labor Code section 4850. 4850 leave provides certain classes of safety employees with a leave of absence while industrially disabled with full salary in lieu of temporary disability payments that would ordinarily be paid to a non safety employee. The classes of employees entitled to 4850 leave are listed in Section 4850, subdivision (b), and include city police officers and firefighters; county and district firefighters, sheriffs, probation officers, group counselors, or juvenile services officers; inspectors, investigators, detectives or other similar positions in the district attorney’s office; and other

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 65