Terminating the Employment Relationship

application for disability retirement. In some instances, although the member may not qualify for a disability retirement, a temporary leave of absence may be appropriate.

However, where the employee at issue is a miscellaneous member, the issue is more difficult to resolve. CalPERS makes the determination as to whether a miscellaneous member is substantially incapacitated for the performance of their usual duties for a permanent or extended and uncertain duration. Although CalPERS may believe the miscellaneous member is not disabled for purposes of retirement, the public employer may have a contrary opinion. First, if a public employer believes a miscellaneous member is unable to perform the essential functions of the job, but CalPERS denies the application for disability retirement, the employer should ask, “why?” Perhaps there is something the employer missed or misunderstood about the member’s condition. For example, CalPERS may have found that the miscellaneous member is expected to recover within six months. If so, it may be a reasonable accommodation on the part of the employer to allow the employee to continue employment on unpaid medical leave (and/or to exhaust accrued paid leaves). Second, consider if the denial of the retirement application was for reasons other than a finding that the member was not incapacitated from the performance of their usual duties. For example, CalPERS may deny an application for disability retirement if the member refuses to submit to a request for medical examination made by CalPERS. In that instance, the employer will need to decide on its own if the evidence supports a finding that the employee is unable to perform the essential functions of the position. A public employer could risk liability and exposure for making a hasty decision to terminate an employee for disability after the employee is denied a disability retirement application by CalPERS. The risk will depend on the facts of any given situation. Employers are advised to seek legal counsel before making any decisio n to terminate an employee due to the employee’s medical, physical, or mental inability to perform the essential functions of the job. ’37 Act Government Code section 31725 requires that if the county’s retirement board denies the application for disability retirement of any member and the county has dismissed the member for disability, the county is required to reinstate the member to their employment effective as of the day following the effective date of dismissal. If the county disagrees with the determination of the retirement board, its only recourse is to file a petition for writ of mandate in the superior court or by joining or intervening in an action filed by the employee within 30 days of the mailing of such notice. If the court ultimately upholds the denial of disability retirement, the county is still obligated to reinstate the employee, and may have to pay back wages and benefits if it previously dismissed the employee because of the disability. 255 If the retirement board denies the application for disability retirement, the county is not required to immediately return the employee to work. The county is not precluded from denying immediate return to duty if the county determines the employee suffers from a temporary iii.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 72