Terminating the Employment Relationship

condition, this cannot result in the forfeiture of a matured right to a pension absent express legislative direction to that effect. “Thus, if a plaintiff were able to prove that the right to a disability retirement matured before the date of the event giving cause to dismiss, the dismissal cannot preempt the right to receive a disability pension for the duration of the disability.” The right to a pension does not arise at the time of injury, but rather when there is a finding that the employee is no longer capable of performing his or her duties. Because a determination of eligibility for disability retirement did not precede the unsuccessful completion of the test, the fireman did not have a matured right to a disability retirement.

4. A PPLYING FOR D ISABILITY PERS allows the employee or any person on the employee’s behalf (including the employer), to file the disability retirement application. If the employer is filing the application, the application should be filed by the governing body, or an official designated by the governing body of the contracting agency. 208 Under the ’37 Act, the application may be filed by the head of the office or department in which the member is last employed, the retirement board or its agents, or any other person on the member’s behalf. 209 If an employer believes an employee is disabled from the performance of his/her usual duties, the employer has a ministerial obligation to file an application for disability retirement on behalf of the employee if the employee has not already done so or chosen to waive his or her right to a disability retirement. 210 An employee is believed to be disabled if the employer cannot accommodate an employee’s medical/psychological restrictions within the employee’s same classification with the same salary, benefits, and promotional opportunities. 211 An employer may not separate an employee believed to be disabled if the employee is otherwise eligible for a disability retirement (e.g. the employee has the requisite number of years of service). 212 For ’37 Act employers, if the disability retirement application is denied, the employee that was separated must be reinstated. The more prudent course is to retain the employee as an “employee.” However, the employee may use available paid leaves and at least one court has held that if all paid leaves are exhausted, the employer is generally not required to leave the employee in paid status pending the resolution of the retirement application. 213 At least one California Court of Appeal decision, however, equates unpaid leave with termination for purposes of CalPERS disability retirement. 214 The application for a disability retirement must be filed either: (a) while the member is in service; (b) within four months after the discontinuance of the service of the member, or (c) while the member is physically or mentally incapacitated to perform duties from the date of discontinuance of service to the time of application or motion. 215 In addition, for PERS agencies, an application may also be filed while a member is on an approved leave of absence or while the member for whom contributions are made by the employer under Government Code section 20997 while the employee is absent on military service. 216

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 63