Terminating the Employment Relationship

A second issue to consider is potential exposure to claims of disability discrimination under the ADA or the FEHA. 278 Under either act, an employer may be liable for taking an adverse employment action against a member who is perceived as disabled. When a local agency employer retires an employee for a disability, it necessarily perceives the employee as disabled and an involuntary disability retirement may be viewed as an adverse employment action. Accordingly, the employer must be sure that the member is not qualified to perform the essential functions of the job with or without a reasonable accommodation. In addition, the employer should engage in the interactive process and endeavor to find a reasonable accommodation that would allow the employee to perform the essential functions of the position before deciding that a disability retirement is the only option. The interactive process and reasonable accommodations are discussed above in Section 4. Third, if the member is retired for disability based upon a condition or injury which is also the subject of a workers’ compensation claim, the member may claim that the involuntary disability retirement is retaliation for filing the workers’ compensati on claim (i.e., a Labor Code section 132a claim). 279 Employers should not retire a member because the member has filed a workers’ compensation claim. The retirement must be based on the member being substantially incapacitated from the performance of duties for a permanent, or extended and uncertain duration. Fourth, employers may not use an involuntary disability retirement as a means of getting rid of a “ problem ” employee. 280 Involuntary disability retirement may be considered an adverse employment action. As such, it should not be used to retaliate against an employee for a protected activity (e.g., for filing a complaint or participating in the investigation of a complaint of unlawful discrimination, harassment or retaliation; for filing a “whistleblower” complaint 281 ; etc.). These are just a few considerations that an employer should make before proceeding with an involuntary disability retirement. An employer should seek legal counsel before executing an involuntary disability retirement.

Riverside Sh eriffs’ Assoc. (Fauth) v. County of Riverside 282 A deputy district attorney investigator was sent for a fitness for duty evaluation and was found unfit for duty. The county placed the employee on paid administrative leave and suspended her peace officer powers. The employee and the county engaged in an interactive process meeting. At that time, the employee contended she was not disabled and did not need an accommodation. The county took the employee off paid administrative leave. The employee demanded either reinstatement to her position or reinstatement of her paid administrative leave and filed a grievance. The county denied the requests on the ground that employee did not meet the minimum fitness for duty qualifications under the Peace Officer Standards and Training. But the county concluded that the employee was not disabled because the employee claimed she was not disabled at her interactive process meeting. The county thereafter

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 79