Terminating the Employment Relationship

8. I NVOLUNTARY D ISABILITY R ETIREMENT An involuntary disability retirement occurs where a CalPERS local agency retires a local safety member for disability against the desire or wishes of the local safety member. While a local safety member could also inform CalPERS that he or she rejects the disability retirement, the member could still accept the disability retirement “under protest” simply to prevent a loss in compensation. However, acceptance of the disability retirement “under protest” does not make the disability retirement any less involuntary. There are a number of concerns of which a public employer should be aware of before subjecting a member to an involuntary disability retirement. First, it results in a separation from employment and a drop in compensation to the extent the disability allowance is less than the member’s normal wages or salary. As such, the public employer should provide the member with adequate due process both before the disability retirement is approved and effectuated, as well as after. Pre-retirement due process should come in the form of a document such as a Notice of Intent to Disability Retire, or similar, and the right to respond, including the right to request a Skelly conference, which allows the member to address the governing board or the local agency’s delegate who is charged with making the determination on the application for disability retirement prior to the determination being made. Post-retirement due process will flow from the statutory appeal procedures normally available when a member disagrees with the outcome on an application for disability retirement. The procedures are similar to the procedures discussed above in Section 4, which addresses separating an employee because of his or her disability. A second issue to consider is potential exposure to claims of disability discrimination under the ADA or the FEHA. 270 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 his or her 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 his or her 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’ compensation claim (i.e., a Labor Code section 132a claim). 271 Employers should not retire a member because he or she filed a workers’ compensation claim. The retirement must be based on the member being substantially incapacitated from the performance of his or her duties for a permanent, or extended and uncertain duration.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 77