Terminating the Employment Relationship

following the last day for which the employee received “regular compensation.” The court held that “regular compensation” included sick leave and vacation leave when taken by the employee as time off. While ’37 Act permit s, but does not require, a member to use all accumulated sick leave prior to a disability retirement, if the member chooses to use sick leave, it acts to delay the effective date of retirement because it is “regular compensation.” Mahler v. City of Buena Park 247 A city fire captain suffered an industrial accident rendering him permanently unable to perform the duties of his position. He applied for PERS disability retirement and sought to exhaust 4,000 hours of accumulated sick leave prior to the effective date of retirement. The city refused to allow him to exhaust the 4,000 hours of accumulated sick leave. It based its decision upon a sick leave policy that provided that employees who continue to be disabled after exhaustion of 4850 leave may use a proportionate amount of accumulated sick leave to supplement temporary disability indemnity in order to equate to full salary. The fire captain petitioned for a writ of mandate. The court granted the petition and the court of appeal affirmed. The city did not limit the use of sick leave and in fact, did not define “sickness.” Thus, common usage would extend sick leave to sickness or injury arising from employment. Since it extended to industrial injury, the fire captain was entitled to exhaust sick leave prior to the effective date of retirement. The fact that the sick leave policy prohibited the cash-out of any accumulated sick leave was irrelevant to the ability of the fire captain to exhaust his sick leave prior to the effective date of retirement. Anderse n v. Workers’ Compensation Appeals Board 248 A city maintained a sick leave policy that allowed employees to use sick leave to attend to medical appointments for non-service related illness or injury. Thus, employees with industrial injuries had to use their vacation time to attend medical appointments. An industrially-injured employee brought an action for discrimination under Labor Code section 132a. The court held that the city’s policy was discriminatory and unlawful. If the city provides sick leave to its employees, it cannot refuse to permit its use for industrially-related medical appointments when non-industrially injured workers are not so restricted.

b. If the Disability Retirement Application Is Denied, Must the Employee Be Retained or Reinstated?

i. Disability Discrimination, Reasonable Accommodation and the Interactive Process The ADA, the Rehabilitation Act of 1973, 249 and FEHA prohibit discrimination in employment because of an applicant or employee’s disability. An employer engages in unlawfu l discrimination if it: (1) regards or perceives the employee as disabled; (2) the employee is otherwise qualified to perform the essential functions of the job with or without reasonable

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 70