Terminating the Employment Relationship

incapacity to perform the job. However, upon denial of disability retirement, the employee may need to be reinstated to paid status. 256

If the employer dismisses an employee because of a disability and the retirement board later denies the application for disability retirement, the employer will be required to reinstate the employee with back pay. The issue becomes whether the employer “dismissed” the employee in the first place. If the employer believes the employee is unable to perform the functions of the position because of physical or medical impairment, the employer may require the employee to go out on sick leave or unpaid medical leave until the condition improves or until the employer can find a suitable position without constituting a “dismissal.” 257

Stephens v. County of Tulare 258 A detention specialist injured his thumb at work. He returned to work on modified light duty pursuant to doctor’s note. Although his county employer provided work to him that was in keeping with the doctor’s recommendation, the employee complained that his thumb was still hurting. The employee’s supervisor provided a letter to the employee advising that the county believed the tasks required appeared to comply with the recommendations of the doctor. H owever, the employee’s statements led co unty to believe he was not able to work because of his injury. The letter advised the employee not to return to work until further notice, or until the employee’s condition improved to the point he could return to light duty or regular assignment. The employee remained off work on sick or personal time, and never sought to return to work. Instead, the employee received sick and personal pay and 4850 benefits. After vocational rehabilitation, the employee sought positions with the county, but was unsuccessful. He later filed for a disability retirement. The board of retirement denied his application for a disability retirement. The employee then sent a letter to the county sheriff-coroner demanding reinstatement pursuant to Government Code section 31725 and filed a government tort claim seeking retroactive wages. The county reinstated the employee, but denied him retroactive wages. The employee filed a writ of mandate to compel the county to reinstate him retroactively to the date he was provided notice not to return to work. The California Supreme Court ultimately determined the employee was not entitled to this relief. The only question in this case was whether the county “dismissed” the employee for disability within the meaning of Section 31725. Here , the county did not “dismiss” the employee. An employer does not functionally or effectively terminate an employee by telling the employee to go out on sick leave until their medical condition abates sufficiently to enable them to return to the job.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 73