Peace Officer's Employer May Not Condition Reinstatement From Disability Retirement

A peace officer who recovers from the injury that led to their industrial disability retirement is entitled to reinstatement without any conditions, according to the recent court ruling in Department of Justice v. CalPERS.

Angelita Resendez was employed by the California Department of Justice as a peace officer until her industrial disability retirement in December 2008. She developed a spine condition as a result of several on-the-job injuries. But in September 2009 she applied to CalPERS for reinstatement. Based on a medical evaluation of Resendez, CalPERS notified her in 2010 that she was eligible for reinstatement. DOJ then offered Resendez reinstatement on the condition that she complete medical and psychological exams and submit to a background check. Resendez rejected DOJ’s offer.

Next, DOJ made multiple appeals to overturn CalPERS' determination about Resendez. But these appeals were denied. The Superior Court also ordered DOJ to provide Resendez backpay to 2010 when CalPERS determined she was eligible for reinstatement. DOJ then appealed to the Court of Appeal.

On October 13, 2015, the Court of Appeal ruled in favor of CalPERS and Resendez. CalPERS was correct to limit its analysis to whether Resendez had recovered from the injury that caused her disability. The law requires CalPERS to order a medical exam and then determine if the employee is fit to return to duty. And Government Code section 1031 sets the minimum standards for peace officers. But CalPERS is not authorized to identify new conditions that might disqualify the employee; it must stick to the original disability.

The court also ruled that Government Code section 21193 creates a two-step process for reinstatement. First, CalPERS must determine the employee is fit to return to duty. Second, the employee's former employer must offer reinstatement.

Here, CalPERS properly determined Resendez was fit to return to duty. So DOJ had a mandatory duty to offer Resendez reinstatement. It had no authority to condition her reinstatement on medical exams and background checks. However, once DOJ has reinstated Resendez it may terminate, demote, or transfer her for failing to meet the minimum standards set by Government Code section 1031.

This ruling provides strong protections for peace officers who have been forced into disability retirement by on-the-job injuries. Once a peace officer recovers from such an injury they are entitled to reinstatement with their former employer. An employer has a mandatory duty to offer reinstatement and may not put conditions on the offer.

Court of Appeal Rules Employer May Seek a Second Doctor's Opinion About Fitness for Duty After Employee Returns from FMLA Leave

On March 15, 2014, the California Court of Appeal in White v. County of Los Angeles held an employer may order a second fitness for duty evaluation after the employee returns from medical leave under the Family Medical Leave Act ("FMLA").  Under the FMLA, an employee must be reinstated to work after being cleared by the employee's medical provider.  However, once reinstated, the employer may then order the employee to submit to an additional fitness for duty evaluation.

The White case involved a Senior District Attorney Investigator with the Los Angeles County District Attorney's Office.  After the investigator's brother-in-law passed away, she began having trouble at work.  The County was concerned with her work performance and questioned her judgment on occasions she was working in the field.  She took FMLA leave on June 6, 2011 to seek treatment for anxiety and depression.  After treatment, her medical provider determined she could return to work on September 7, 2011.

Upon the investigator's return, the County ordered her to appear for a medical evaluation conducted by a County-designated medical provider.  She did not attend the scheduled fitness for duty evaluation.  She then filed a lawsuit seeking to prevent the County from ordering her to attend the fitness for duty evaluation.  She argued the County violated her right under the FMLA to be restored to employment upon her doctor's certification alone.

The Court of Appeal held that under the FMLA, the employer must accept the employee's physician's certification for reinstatement.  However, after reinstatement, the FMLA protections no longer apply.  At that time, the employer may require an additional fitness for duty evaluation even if it is based on conduct occurring before the FMLA leave.  Since she had been officially reinstated to her position before the County ordered the fitness for duty evaluation, the County could legally order the evaluation.