Terminating the Employment Relationship

Fourth, employers may not use an involuntary disability retirement as a means of getting rid of a “problem” employee. 272 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 273 ; 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 Sheriffs’ Assoc. (Fauth) v. County of Riverside 274 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 removed the employee from employment “based on the determination that she is no longer qualified to perform her duty.” The employee requested an appeal hearing for her termination, but the county stated that she was not entitled to an appeal hearing because she was not terminated for disciplinary reasons, but because she was unqualified for her position. The employee eventually received a determination from her own physician that she was fit for duty and presented the county with the report. The county then initiated an involuntary disability retirement and retired the employee. The employee filed a petition for writ of mandate in superior court to compel the county to grant her an appeal hearing under the memorandum of understanding for her termination. Ultimately, the Court of Appeal held that “until the involuntary disability retirement becomes final, with no possibility of being set aside, [the employee’s] termination for cause remains in effect, unless expressly withdrawn, and [the employee] is entitled to an MOU appeal hearing.” Riverside Sheriffs’ Assoc. (Sanchez) v. County of Riverside 275 A public safety officer was placed on involuntary unpaid leave because the county found that she was unable to perform the essential functions of her job with or without reasonable accommodation. The officer disagreed. The County applied for disability retirement with CalPERS and later approved the

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