What is a 39-Month Reemployment List?

Most public school employees have not heard of a 39-Month Rehire (or Reemployment) List until they or a friend are forced onto one. This article answers some common questions and addresses likely misconceptions about 39-Month Reemployment Lists. 

What is the 39-Month Reemployment List?

The 39-Month Reemployment List is, in short, a process that mandates how public school districts must terminate employees who are perceived as too injured or sick to keep performing their jobs. This detailed process is outlined in California Government Code section 45195, and specifies that if a permanent employee exhausts all their sick leave, and is still unable to continue working, they are placed on a “reemployment list for a period of 39 months” or 3.25 years. 

Employees who are placed on the list receive no pay, no benefits, and do not work for the district, but are, at least on paper, supposed to be given priority for rehire over other qualified candidates if and when they become healthy enough to work. While it does not matter how the employee initially became injured, the vast majority of employees placed on the 39-Month Reemployment List were initially injured at work and have ongoing workers' compensation cases. 

Am I actually fired if I get placed on a 39-Month Rehire List? 

For all intents and purposes, if you  have been placed on a 39-Month Reemployment List, you have been fired. Employees on the 39-Month Rehire List do not report to work, collect a salary, earn benefits, or contribute towards their CalPers or CalSTRS retirement service credits. School districts will bend over backwards and claim that their 39-Month Reemployment List is anything but a termination, but do not be fooled. 

What is the District supposed to do before I am placed on a 39-Month Reemployment List?

In almost every circumstance, an employee who qualifies for placement on a 39-Month Reemployment List will also be considered “disabled” for purposes of the California Fair Employment and Housing Act or “FEHA”. An employer’s mere perception or actual knowledge that an employee has a disability triggers an ongoing and rigorous obligation to engage in a timely and good faith interactive process with the employee and identify reasonable accommodations that would allow the employee to keep working. Reasonable accommodations are modifications or adjustments to the work process that allow the injured worker to continue performing the essential functions of their current position, or is a reassignment to an entirely new position that the employee can perform, called a “reassignment accommodation.” Click here to read an article on the interactive process. The employer’s failure to engage in an interactive process or provide reasonable accommodations constitutes disability discrimination.  

The FEHA implications mentioned above mean that before the employee is placed on a 39-Month Reemployment List, the employer-school district should have engaged in a series of ongoing, timely, cooperative, and factually substantive discussions with the employee and the employee’s medical providers about accommodations and how the employee could possibly keep working before placement on the 39-Month Reemployment List is ever considered. In reality, however, school districts will bypass the interactive process entirely and immediately place the employee on the 39-Month Reemployment List without offering any accommodations whatsoever. This means that many  injured school employees who can continue to work with minimal accommodations, or have already been working with injuries for quite some time, are  routinely placed on the 39-Month Reemployment List in violation of the FEHA. Indeed, employees will often work for many months with an injury, only to be abruptly placed on a 39-Month Reemployment List with little to no warning. 

What is supposed to happen after I am placed on the 39-Month Reemployment List?

After the employee is placed on the 39-Month Reemployment List, the District has a continuous and ongoing obligation to engage in an interactive process with the employee for the rest of the 3.25 years they are on the list. This means that the District is supposed to proactively alert the employee to new openings at the school district, even before those jobs are posted online for the general public. The District is also required to analyze any new or updated doctors notes provided to it by the employee, by the employee’s doctor, or through District’s workers' compensation insurer. If the employee’s medical condition has changed, the District is obligated to engage in another interactive process with the employee to see if the employee can continue working with those new restrictions. If the employee has improved or can otherwise be accommodated or reassigned, the employee must be swiftly taken off the list and rehired.

But all of this is just how things are supposed to happen. The harsh reality is that school districts secretly view their own 39-Month Reemployment List as a permanent termination and that the employee is never coming back. Districts never call the employee to alert them to open positions, districts never ask if their condition has changed, and they will frequently ignore updated doctor’s notes altogether. This is because school districts are encouraged, both internally and by their unscrupulous workers' compensation insurers to get rid of employees who have been injured. 

What should I do if I am placed on a 39-Month Reemployment List?

The employee’s potential courses of action after they have been placed on a 39-Month Reemployment List depend upon whether they have been mistakenly deemed by the employer to be too injured to work, or whether the employee is so injured that he or she can perform no work whatsoever, even with accommodations. 

Employees who believe they were mistakenly placed on their District’s 39-Month Reemployment List should vigorously and promptly fight their placement on the list. Offers to go on permanent or temporary disability, state disability, or Social Security Disability (i.e. TTD, SDI, SSDI) should be deeply investigated. The employee should attempt to have constructive discussions, in writing, with the District and also involve the employee’s doctors, as necessary. The employee should also consider seeking a plaintiff-side attorney who specializes in disability discrimination, reasonable accommodation, and the interactive process.

Do you have questions about the 39-Month Rehire List? Contact the Law Office of Brian Mathias today.