The Zappia Law Firm A Professional Corporation. Welcome to California the State of Leaves; How to Navigate the Disability Alphabet

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1 The Zappia Law Firm A Professional Corporation Welcome to California the State of Leaves; How to Navigate the Disability Alphabet DMEC Southern California Long Beach Chapter Quarterly Meeting October 14, 2015

2 The Governing Law The Public Employees Retirement Law ( PERL, Gov. Code et seq.) makes certain safety employees basically police officers and firefighters eligible for special disability retirement benefits if they are incapacitated in the performance of duty as a result of an industrial disability. (City of Anaheim v. Nolan (2002) 104 Cal.App.4 th 1170; Gov. Code 21151) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 2

3 Employees are entitled to industrial disability retirement ( IDR ) if the disability arises out of the course of employment with the public agency. (Gov. Code ) Safety employees are eligible for disability retirement from their first day on the job. To qualify for disability retirement for an off-the-job injury, a safety officer must be working for 5 years. The difference between IDR and disability retirement mostly concerns tax benefits The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 3

4 The Interactive Process The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 4

5 FEHA: It is unlawful for an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Gov. Code 12940) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 5

6 Requires good-faith participation by both parties, open and continuous communication, and shared information. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4 th 34.) Mandatory, informal, ongoing, good faith participation by both parties to determine if the employee can perform the essential functions of the position with or without reasonable accommodation. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952) The interactive process is a vehicle for accessing reasonable accommodation, not a process for determining legal disability. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4 th 34.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 6

7 Accommodation Reasonable Accomodation: a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. (Nadaf- Rahrov v. Neiman Marcus Group, Inc., (2008) 166 Cal.App.4 th 952, 976.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 7

8 What is (and is Not) a Required Reasonable Accommodation? Does not require creating a new position, promotion, guaranteed full-time employment, or moving other employees Position Must Exist And Be Vacant Employer s Discretion to Select Effective Accommodation Accommodate Limitations NOT Disabilities The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 8

9 Examples of Reasonable Accommodation: Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. Job structuring, part-time or modified work schedules, reassignment to a vacant position, acquisition on modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Scotch v. The Art Institute of California-Orange County (2009) 173 Cal.App.4th at The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 9

10 Permanent light duty: An employee is not entitled to disability retirement if the employer has a permanent light duty position available where the duties performed are those performed by other employees in the same job classification. Doesn t matter if, for example, policeman cannot perform any and all police duties. (Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 10

11 Issues in Accommodation A public entity should always initiate discussions with an employee about alternatives if either the employee or the entity believe she is disabled. Can the employee be accommodated (usually on a temporary basis) in her current position? Is there another position in which the employee can work with her restrictions? The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 11

12 If the employee says she is not interested in any other positions, the options are likely limited at that point to disability retirement or return to full duty. But at least the discussion was held, which gives the entity a defense if it is sued under a disability discrimination lawsuit. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 12

13 Application and Eligibility for Disability Retirement The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 13

14 21153 provides that, when the employee is believed to be disabled, the employer shall apply for disability retirement. If an agency treats an employee as disabled, it must apply for disability retirement on the employee s behalf, even if it does not believe the employee is disabled. [T]he Legislature has precluded an employer from terminating an employee because of medical disability if the employee would be otherwise eligible for disability retirement. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 14

15 Employees cannot be denied disability retirement and also denied employment at the same time. Lazan v. County of Riverside (2006) 44 Cal.Rptr.3d 394 After a deputy sheriff told the County about her work restrictions, the county determined her condition prevented her from returning to regular job duties and there was no position available to meet her restrictions. However, the county refused to apply for her disability retirement and she brought a writ. The court found that since the county determined the deputy was incapable of performing her job duties and treated her as if she was disabled, it was obligated to apply for disability retirement. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 15

16 Requirements for IDR The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 16

17 Substantial Incapacity The applicant must be substantially incapacitated to perform the usual duties of his position. Substantial incapacity: the inability of the applicant to perform his usual duties of the position for a permanent or unknown duration. (Gov. Code section 21156) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 17

18 The Mansperger test for substantial incapacity: can the applicant perform the usual duties of his position? (Mansperger v. Public Employees Retirement System (1970) 6 Cal.App.3d 873.) Game warden was not disabled even though he could not make arrests or perform activities requiring heavy, because such activities were not common occurrences. Duties which may actually be required, but on an infrequent basis, are not considered usual duties. (Hosford v. Board of Administration (1978) 77 Cal.App.3d 854.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 18

19 Usual Duties of the Position, not Assignment An applicant is entitled to IDR if he is substantially incapacitated from performing the usual duties of his position, not the last assignment he last held. Highway patrol officer was substantially incapacitated where he could not perform 14 critical tasks of an officer, even though his last assignment as a public affairs officer did not require ability to perform those duties. (Beckley v. Board of Administration (2013) 222 Cal.App,4 th 691) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 19

20 An Employee Must Meet Position Qualifications Throughout Her Career The minimum qualifications for a police officer apply not only at the time of pre-employment, but throughout her career. It would be illogical for the minimum standards (regarding physical, emotional, mental conditions) allowing a new recruit to become an officer would disappear once the officer began working. (See Sager v. County of Yuba (2007) 156 Cal. App.4th 1049) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 20

21 The Disability Must Be Permanent Reasonably medically certain the disabling condition/injury will continue for the indefinite future. Where there was a high probability an employee would have been able to work had he submitted to surgery, the disability is not permanent and the employee is not substantially incapacitated. Applicant firefighter who unreasonably refuses remedial surgery is not permanently disabled. (Reynolds v. City of San Carlos (1981) 126 Cal.App.3d 208.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 21

22 Prophylactic Restrictions? Physicians may sometimes recommend that an individual avoid activity as a prophylactic measure to protect her from further injury based upon physical activity which can be controlled to avoid pain or discomfort and any associated risk. Prophylactic restrictions are not a basis for disability retirement, but they may be considered. Disability must be existing, not prospective Restrictions that are recommended only because of a potential for future aggravation of a present condition do not equate with being disabled. (Mansperger, supra, 6 Cal.App.3d at ) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 22

23 A disability must be presently existing and not prospective in nature. Neither the risk or fear of injury nor aggravation of an injury is a sufficient basis to award an industrial disability retirement. A police officer whose doctor gave him an excuse to remain off of work indefinitely due to subjective pain and fear of injury was unqualified for disability retirement. (Hosford v. Board of Administration (1978) 77 Cal.App.3d 854.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 23

24 What about Worker s Comp? Disability retirement law is distinct from the workers compensation ( WC ) system with different disability criteria and procedures. Disability in workers compensation law is not synonymous with incapacity- it refers to a full range of impairment from miniscule to totally incapacitating. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 24

25 Prophylactic Restrictions From a WC Doctor? Prophylactic work restrictions issued by a WC doctor are not dispositive. They certainly can be considered, but the entity can also seek another expert opinion on the basis of substantial incapacity. That expert may review the job analysis and duties and find that whatever injury the employee suffers from, it does not incapacitate from performing the usual duties of his position. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 25

26 If an IDR is denied, and the employee appeals, you will likely have a battle of the doctors. Doctors diagnoses and opinions are as good as the information upon which they rely. (White v. State of California (1971) 21 Cal.App.3d 738.) Does the doctor know about the applicant s job duties? The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 26

27 Employee Status During the IDR Process While the employee s disability retirement application is pending, the employee may use available paid leave. If the employee has exhausted her paid leave, the employer is generally not required to keep the employee in paid status pending the resolution of the IDR application. (Rodarte v. Orange County Fire Authority (2002) 101 Cal.App.4th 19.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 27

28 Disability Benefits for Safety Employees under the Labor Code 4850 Full-time safety officers may take a paid leave of absence for up to one year for a work-related injury (or until they retire and are actually receiving disability pension payments) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 28

29 4850.3/4850.4: the employer must make advanced disability pension payments to a qualified safety officer who has qualified for benefits under 4850 and whose application is pending until final adjudication If the application is denied, the employee may have to reimburse the employer. If the application is granted, CalPERS will reimburse. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 29

30 Take Caution Before Placing Employee on Unpaid Leave Riverside Sheriffs' Association v. County of Riverside (2011) 193 Cal.App.4th 20 County placed employee on unpaid leave pending IDR determination. Court: employee was entitled to due process (MOU hearing) before being placed on leave, as unpaid leave constituted disciplinary and punitive action. Hearing re: denial of wages/benefits while placed on unpaid status, not of her termination per se. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 30

31 Who Determines Disability? Pursuant to and 21156, the decision is made by the governing body. Pursuant to section 21173, that authority can be delegated by the governing body, but still must be made on the basis of a competent medical opinion. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 31

32 What if an Employee is Found Unqualified for Disability Retirement? Local safety officers cannot be fired for medical reasons; instead, the employer must apply for their disability retirement. ( ) If an employee s disability retirement application is denied, she remains an employee, and must be reinstated to active duty. The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 32

33 What About Recovery? An employee on disability retirement may apply for reinstatement on the ground of recovery. If the employee is found to be no longer disabled, the employer may reinstate him and his disability terminates. (Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292.) The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 33

34 Conclusion and Questions The Zappia Law Firm, APC Los Angeles Orange County Silicon Valley 34