County Employee Sickened at Office Entitled to Disability Retirement

 

By Joanne Deschenaux January 13, 2020
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County Employee Sickened at Office Entitled to Disability Retirement

​A county employee who developed medical symptoms that seemed to be caused by her office environment was qualified for disability retirement after her employer denied her request to work at a different location, a California appellate court ruled.

The public employee was eligible for disability retirement under the California Public Employees' Retirement System (CalPERS), even though she might have been able to perform her duties at a different location, the court said.

The employee began working for Lake County in 2002. Her primary job duties involved appraising real property for property-tax purposes. She performed most of her work in an office in the Lakeport Courthouse, although she sometimes conducted field inspections.

In 2010, she started to feel physical pain throughout her body and was "constantly fatigued." Her symptoms worsened at the end of 2011, and on April 10, 2012, she could not finish a full day of work. On the previous day, the building had to be evacuated because of fumes caused by the roof being tarred. A "horrible smell" persisted, and other people complained as well. The employee felt much better if she was at home or outside, and she began working only half days.

The employee's superiors moved her to different locations in the courthouse, but the changes did not help, and the employee used about 500 accrued hours of leave.

She was eventually told by her superiors that she "was a liability" and "should stay home." She filed a claim for workers' compensation and beginning in late 2012 took an extended leave of absence under the Family and Medical Leave Act. She continued to ask for accommodations, such as permission to telecommute, but her superiors declined to let her work anywhere other than in the courthouse.

In May 2013, Lake County terminated the employee because she had exhausted her medical leave.

In late 2013, she applied for disability retirement under CalPERS. CalPERS denied the application in December 2014. The employee appealed, and an administrative hearing was held in June 2016. The administrative law judge denied the appeal, concluding that although there was no dispute that the employee had a legitimate medical condition, she was not permanently disabled or substantially incapacitated from performing her usual job duties, since she could perform those duties in another location. A trial court agreed, and the employee appealed.

The appellate court reversed, concluding that CalPERS could not deny disability retirement when, due to a medical condition, applicants can no longer perform their duties at the only location where their employer will allow them to work.

Reasonable Accommodation Requirement

The California Fair Employment and Housing Act (FEHA) requires employers to make reasonable accommodation for an employee's known disability, unless doing so would produce undue hardship to the employer's operation.

"A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform essential functions of the job he or she holds or desires." Under FEHA, a plaintiff suing an employer for disability discrimination must establish that he or she can, with or without reasonable accommodation, perform the essential duties of the job.

The appellate court said that it was not being asked in this case to decide whether Lake County properly denied the employee's request for an accommodation to work somewhere other than at the courthouse. Instead, the court was required to decide what role, if any, the existence of a theoretical accommodation plays in determining a public employee's eligibility for disability retirement.

The court noted that the Public Employees' Retirement Law (PERL) contains no language tying eligibility for disability retirement to the possibility of an accommodation. This is unlike the Teachers' Retirement Law, the court said, which defines "disability" for the purposes of disability retirement as any physical or mental impairment that is permanent or that can be expected to last continuously for at least 12 months and prevents a member from performing usual duties with "reasonable modifications."

If an employee applies for disability retirement and the Teachers' Retirement Board determines that he or she may perform his or her job with the assistance of reasonable accommodation, the board may require the worker to request reasonable accommodation from the employer, the court said.

The Teachers' Retirement Law demonstrates that the legislature could have given CalPERS authority to require employees to seek an accommodation as a prerequisite for disability retirement eligibility, the court noted. But it did not do so. And even if PERL could be interpreted to allow CalPERS to require a worker to seek an accommodation, that interpretation would not matter in this case because the employee had asked for an accommodation, which was denied.

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The court concluded that the employee's usual duties required her to work in the Lakeport Courthouse, and whether she could have performed her duties elsewhere was irrelevant to her eligibility for disability retirement. As a result, the court said, the trial court erred by concluding that her ability to perform her duties at some other location left her ineligible for disability retirement.

McCormick v. California Public Employees' Retirement System, Calif. Ct. App., No. A154236 (Oct. 25, 2019).

Professional Pointer: Although this case arose in the context of public employment, the court discusses general principles concerning reasonable accommodation that are applicable to all employers covered by FEHA. Denying an employee's requested accommodation that would allow that employee to perform his or her job and then concluding that the employee is not disabled because he or she could perform the job with the denied accommodation is unlikely to be a winning legal strategy in any context.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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