Public schools are often the worst offenders of California’s anti-discrimination laws, disability discrimination included. Often times a public school employee’s placement on a 39-Month Rehire List is an indicator that disability discrimination has occurred or is still ongoing. All public school employees should know what the 39-Month Rehire List is and the most common ways that schools commit disability discrimination when this list is used.
What is a 39-Month Rehire List?
To understand what a 39-Month Rehire (or Re-employment) List is and is not, one must first understand when it is legal and illegal to fire an employee whose illness, injury, or disability affects their ability to do the job.
Generally speaking, it is completely legal for an employer to terminate a sick, injured, or disabled employee if the employee cannot continue to do their job because of their health condition. However, before the employee is terminated, the employer has a rigorous obligation to first determine if one or more modifications, tools, or adjustments to how the job is performed could allow that disabled employee to continue working, notwithstanding their health condition. These are called reasonable accommodations. If a reasonable accommodation exists, it is illegal to terminate the employee for health reasons. Employers who terminate an employee who could continue to do their job, with or without a reasonable accommodations, have committed disability discrimination. Dislike, hatred, or discriminatory intent towards sick, injured, or disabled employees has nothing to do with disability discrimination.
Disabled public school employees, including certificated and non-certificated staff, have an additional benefit not provided to other sick or injured employees. Instead of being fully terminated, public school employees who are too sick, injured, or disabled to continue working, even with accommodations, must be placed on a reemployment list for 39-months (California Education Code § 45195.) While on the 39-Month Rehire List, the disabled employee gets job priority over most other employees if they become healthy enough to resume working.
However, in reality the 39-Month Rehire List rule is rarely applied by public school districts in a legal and correct way. Several common violations repeatedly occur, regardless of school district or the employee’s prior job title.
Placement on the 39-Month Rehire List means the employee cannot perform the job, even with accommodations:
An employee’s placement on a 39-Month Rehire List requires that the employee be actually and objectively unable to perform their regular job duties, called the “essential job functions,” even with accommodations. School districts frequently get this wrong and place employees on a 39-Month Rehire List despite the employee being able to perform the job with minimal or even no accommodations. This occurs for a variety of reasons, including reliance on outdated or inaccurate medical information or the false belief that the employee’s medical restrictions are “permanent” and will never change. School districts will also rely exclusively on certain doctors to ascertain the employee’s medical abilities, such as a Panel Qualified Medical Evaluator, or “PQME,” but ignore other doctors with more accurate information such as the Primary Treating Physician or “PTP.” The employer’s subjective belief or intent does not matter; the employer must correctly and accurately determine that the employee cannot perform their position with or without accommodations for a placement on a 39-Month Rehire List to be lawful.
The 39-Month Rehire List is not an exception to the duty to accommodate or engage in an interactive process:
School District employers often assume, incorrectly, that placement on a 39-Month Rehire List is an exception to or overrides the employer’s duty to accommodate, to engage in an interactive process with the employee, or to disability discrimination in general. The 39-Month Rehire List rule makes no such exception to the California Fair Employment and Housing Act or “FEHA.” If an employee is abruptly placed on 39-Month Rehire List without first going through one or more exhaustive interactive processes, this is often indicative of disability discrimination.
Employees must be regularly contacted about open and vacant positions while on the 39-Month Rehire List:
Employers internally and psychologically view employees on their 39-Month Rehire List as being permanently and forever terminated, with no remaining ties to their former position. While employees on the 39-Month Rehire List do not go to work, get paid, or accrue retirement service benefits, they are for purposes of the interactive process and the FEHA still employed by the District. This means that once on the 39-Month Rehire List, the employer-District must proactively inform the employee about new job vacancies that could accommodate the employee, even if the job vacancy is completely different than the employee’s former position. Referring the 39-Month Rehire List employee to a generic list of open positions on the employer’s website violates this duty because the employer must give the 39-Month Rehire List-employee “preferential consideration” over the general public if the vacancy might accommodate the employee (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 265). Since even small school districts are regularly hiring for low and mid-level positions, the absence of regular contact from the employer while on the 3.25 year Rehire List is indicative of disability discrimination.
Have you been placed on a 39-Month Rehire/Re-Employment List? Don’t let your employer let you rot. Contact the Law Office of Brian Mathias today and take action.