Terminating the Employment Relationship

In addition, for members who are employed as peace officers, job duties include the provisions of Government Code section 1031 as a matter of law. 179 Section 1031 requires, in relevant part, that “each class of public officer or employees declared by law to be peace officer shall…be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.” 180 Job duties that are infrequently performed are typically not considered “usual” duties, unless the duties are integral to the position and the employee is expected to perform those infrequent duties whenever the moment arises. On the other hand, job duties that are routinely performed but not integral to the position may not be considered “usual.” 181 For example, if a peace officer’s medical restrictions merely prevent the officer from performing a rarely occurring non- integral task, the officer may not be entitled to a disability retirement. 182 However, where the employer requires that every one of its peace officers operate at the same level of a field officer, regardless of assignment, and the employee is not capable of performing all duties of a field officer, including those that might occur infrequently, the employee may be entitled to a disability retirement. 183 i. Effect of Permanent Light Duty Accommodations If the employer is able to provide the employee with permanent light duty accommodations within the employee’s restrictions, and those accommodations allow the employee to remain in the same classification, with the same salary, fringe benefits, and promotional opportunities, the employee may not qualify for a disability retirement. Once an employer has provided these permanent light duty accommodations, the light duty position becomes the employee’s “usual” duties, from which the employee must show substantial incapacity in order to qualify for a disability retirement. 184 For ’37 Act agencies, a county board of supervisors may also choose to adopt the provisions of Government Code section 31725.5 for non-service connected disability only. Section 31725.5 provides that a county retirement board may find that a member is incapacitated from the performance of his or her usual duties for a non-service related disability, but is capable of performing other duties in the service of the county. In such a case, the member will not be entitled to a disability retirement allowance if any competent authority in accordance with any applicable civil service or merit system procedures offers, and the member accepts, a transfer, reassignment, or other change to a position with duties within his or her capacity to perform with his or her disability. If the new position affords the member less compensation than that of the member’s former position, the retirement board, in lieu of a disability retirement allowance, shall pay the member the difference in such compensation until the compensation of the new position equals or exceeds the compensation of the former position. In no event will the member be entitled to a differential disability allowance greater than he or she would have received had the member been retired for disability. If a new position cannot be arranged at the time of eligibility for disability retirement benefits, the member may receive a disability retirement until such time as the new position is available and accepted by the member. The period while on disability retirement will not be considered a break in service. 185

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 59