Terminating the Employment Relationship

accommodation; and (3) the employee is subjected to an adverse employment action (e.g. termination) because of the employee’s actual or perceived disability. 250

In addition, as explained in Section 4 above, generally, an employer is required to engage in the interactive process with the employee and to provide a reasonable accommodation that would allow an employee to perform the essential functions of the job, unless the accommodation would be an undue burden. 251 An employer must be conscious of its obligations under the ADA and FEHA both before and after an application for disability retirement is filed. Simply because an employee files an application for disability retirement does not mean an employer is relieved of its obligation to engage in the interactive process and to provide a reasonable accommodation that would allow the employee to perform the essential functions of the job. Indeed, if an employer can provide permanent light duty modifications as a reasonable accommodation, the employee would not be entitled to a disability retirement. 252 If an employee’s applicati on for disability retirement is denied, the employer must not terminate the employee because of the employee’s actual or perceived disability. Instead, the employer must engage in the interactive process and endeavor to find a reasonable accommodation. If no reasonable accommodation can be made, the employer should contact legal counsel as to the next steps. This workbook is not intended to cover all of the ins and outs of the ADA, FEHA, the interactive process and disability discrimination. Before making any decision to terminate an employee due to a physical, medical, or mental disability, employers are advised to seek legal counsel. ii. CalPERS Government Code section 21153 states that “an employer may not separate because of disability a member otherwise eligible to retire for disability, but shall apply for disability retirement of any member believed to be disabled, unless the member waives the right to retire for disability… . ” This code section has been interpreted to mean, at the very least, that an employer must file an application for disability retirement on behalf of an employee believed to be disabled. An employer believes an employee to be disabled if the employer has made the determination that it cannot offer the employee work that is within the employee’s disabling limitations, while allowing the employee to remain in the same rank or position, with the same salary, benefits, and real promotional opportunities. 253 When the employee at issue is a local safety member, the public agency determines in the first instance if the member is qualified for a disability retirement. Arguably, if a public agency does not believe that a local safety member is substantially incapacitated from the performance of their duties for a permanent or extended and uncertain duration, the public agency cannot, on the other hand, say that it cannot accommodate the employee’s disabling condition. 254 This is not to say that an employer must immediately put a local safety member to work upon denying the

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