Terminating the Employment Relationship

miscellaneous members. If the application was made more than nine months after discontinuance of the member’s service, the effective date is determined considering whether, under the circumstances, it can be made in a retroactive manner, or if no date is indicated, the effective date will be the first of the month the application is received. A local safety employee’s effective date of retirement may not be earlier than the da te upon which leave of absence without loss of salary under Labor Code section 4850 terminates (up to a maximum of one year), or the earlier date during that leave as of which the disability is found by the Workers’ Compensation Appeals Board to be permane nt and stationary, unless the employee consents to an earlier retirement date. 236 A finding by an agreed upon or qualified medical examiner that the local safety member is “permanent and stationary” does not necessarily permit an employer to activate the disability retirement. Instead, it is the Workers Compensation Appeals Board that must make a finding that the employee is permanent and stationary in order to effectuate a disability retirement prior to the termination of 4850 benefits, unless the member consents to an earlier retirement date. 237 In addition, for both miscellaneous and local safety employees, the employee is entitled to exhaust sick leave and compensatory time off, where accrued, prior to the effective date of retirement, unless the member applies for or consents to retirement as of an earlier date, or unless, with respect to sick leave, the provisions of the public agency’s rules provide to the contrary. 238 For example, if the employer provides for the use of sick leave for any “illness or in jury,” and the employee does in fact have an illness or injury that precludes the employee from performing their duties, the employee is entitled to exhaust all sick leave accruals before the effective date of retirement. 239 California courts have previousl y held that if an employer’s sick leave policy is limited to “non - service related sickness or injury,” the employee is not entitled to exhaust sick leave prior to the effective date of retirement. 240 It should be noted that those cases were, however, limited to determining the effective date of retirement. Another California court held that an employer’s sick leave policy that limited the use of such leave to employees with non-service related injury or illness discriminated against employees based upon the industrial nature of the employee’s injury or illness and is therefore unlawful. 241 ’37 Act The effective date of retirement is the expiration date of any leave of absence with compensation to which the member is entitled under the Workers’ Compensation Law (i.e. Labor Code section 3201, et. seq .) or effective on the occasion of the member’s consent to retirement prior to the expiration of such leave of absence with compensation. The disability allowance shall be effective as of the date such application is filed with the retirement board, but not earlier than the day following the last day for which the member received “regular compensation” (including compensation received for vacation or sick leave of absences). 242 If a member accepts another position in the county or district employing them that accommodates the member’s work restrictions, and the acceptance of that position is intended to be temporary until such time as the member’s disability retirement application is accepted by the retirement board, the effective date of retirement shall be the last day for which the member ii.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 68