Public school employees are provided with a number of employment benefits and protections that are not given to employees anywhere else. One such protection is called the 39-Month Re-Employment List.
What is the 39-Month Re-Employment List?
A school district employee is placed on their District’s 39-Month Re-Employment List if the employee is too injured to continue working and all other leaves of absence have run out. The employee is then 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 and are for most intents and purposes terminated. However, at least on paper, the employee is 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.
There are 39-Month Re-Employment List procedures for classified employees (custodians, food service, aides) and also certificated personnel (teachers). (Cal. Ed. Code § 45195 [classified personnel] 44978.1 [certified personnel].)
This article describes five things that an employee should do if they are placed on the 39-Month Re-Employment List or are being threatened with this.
Understand exactly what restrictions are being relied upon.
First, the employee should understand exactly what limitations or restrictions are being relied upon by the employer to place the employee on the 39-Month Re-Employment List.
In order to legally place an employee on a 39-Month Re-Employment List, the employer must correctly conclude that the employee is too injured, sick or disabled to keep working. This presupposes that the employer is referring to and relying upon accurate medical restrictions for the employee. Oftentimes employers rely on outdated restrictions when placing the employee on the 39-Month Re-Employment List or falsely accuse the employee of having “permanent restrictions” that simply do not exist. In other instances, employers will unlawfully rely upon the restrictions from a QME or AME doctor, but will ignore less restrictive and more current limitations imposed by the employee’s actual physician or “Personal Treating Physician” / “PTP”. The employee should seek to understand precisely what limitations are being relied upon.
Relatedly, many medical restrictions will include a time or temporal component. For example a bending restriction will often say, “No bending for more than two hours per day.” Whereas a restriction of “no bending” could be very difficult to accommodate, the restriction of no bending for more than two hours per day is far less enormous. Employers often overlook these temporal qualifiers.
Lastly, if the employee has multiple medical restrictions, the employee should ascertain exactly which one of those restrictions are viewed as problematic by the employer.
Determine if the employer has interpreted the restrictions accurately.
Second, after the employee has ascertained what exact medical restrictions were relied upon by the employer, the employee should determine if those limitations have been interpreted accurately. This is often not as easy as it seems.
For example, restrictions will often include vague descriptions such as “no frequent typing” or “no repetitive bending” or “only occasional overhead lifting”. However, the employer, employee, and medical provider will often not share the same understanding of what these terms actually mean. Because the employer must correctly conclude the employee is too injured to keep working before being placed on a 39-Month Re-Hire List, the employer must understand the precise meaning of these qualifiers before taking action against the employee. If any restrictions are vague and ambiguous, the employer must resolve those ambiguities before terminating the employee. Similarly, the employee may consider getting a follow-up doctor’s note from his or her doctor to clarify these restrictions.
Determine if the restrictions are actually relevant to the underlying job.
Third, after the employee has determined what restrictions are being relied upon and whether those restrictions have been correctly interpreted, the employee should determine if those restrictions are actually relevant to the underlying job.
Just because an employee has medical restrictions does not mean those restrictions are relevant to the employee’s work. For example, a 25 pound lifting limitation may be highly problematic for a school custodian, groundskeeper, or food service worker, but irrelevant to a speech therapist or teacher who engages in no heavy lifting at work. Unfortunately, zealous school districts and their unscrupulous workers’ compensation adjusters will seize upon irrelevant restrictions in terminating the employees.
Relatedly, a school district’s human resources department will often rely upon an outdated or generic written job description in determining what the underlying job’s “essential functions” are in the lead-up to an employee’s placement on a 39-Month Re-Hire List. The employee should speak up about any inaccuracies in the job description during the termination and/or 39-Month Re-Hire List process.
Communicate to human resources by email.
Next, the employee that is on, or is threatened with, a 39-Month Re-Hire List should communicate with the District’s human resources department by email. This is especially the case when the employee makes any complaints, corrections, or clarifications concerning the employee’s medical restrictions and the employee’s ability to do the underlying job, with or without accommodations.
Human resources departments, especially those for the government, are trained to not send information that is bad for them in writing. This confuses the employee and makes it more difficult to sue the employer later on. Similarly, human resources will often send highly inaccurate letters that purportedly “summarize” meetings or phone conversations that occurred between the employer and employee. This is another tactic used by the employer to prevent or defend against a later lawsuit. All such communications should be responded to by a professional, concise, but candid email from the employee.
Contact an Attorney.
Many times school district employees are placed on 39-Month Re-Hire Lists unlawfully, causing significant economic and non-economic damage to the employee. Employees should proactively contact an attorney that practices California employment law and “disability discrimination” for assistance.
Are you being threatened with a 39-Month Re-Hire List? Contact the Law Office of Brian Mathias.