What has to happen by the school district before it puts me on a 39-Month Re-Employment List?
California public school employees who are terminated because of an actual or perceived inability to perform their job due to a medical condition must be terminated via a “39-Month Re-Employment List” or “39-Month Re-Hire List.” This applies to teachers or “certificated employees.” (Gov’t. Code § 44978.1.) A nearly identical requirement also applies to custodians, food service personnel, security guards, and other non-teaching staff called “classified employee.” (Gov’t. Code § 45195.)
Public schools, their human resources and risk management departments, and their outside advisors will frequently skip legally required steps before placing their employees on 39-Month Re-Employment Lists. Employers and their human resources advisors who skip or rush through these steps can be liable for disability discrimination and failure to accommodate under the California Fair Employment and Housing Act. This article provides a preview of what must happen before an employee can legally be placed on a 39-Month Re-Employment List.
The employee must use up all forms of sick leave, vacation time, and other leaves of absence:
The first requirement is that the underlying employee must have depleted all of his or her entitlement to sick leave, vacation time, PTO, overtime, FMLA, and protected leave under the California Family Rights Act (“CFRA”). This is called “exhausting” all forms of protected leave. Simply put, before terminating the employee via a 39-Month Re-Employment List, the employee must have no other legal basis to stay home from work. Because California public school employees get far more protected leave, sick time, and other PTO than other employees, this is often difficult to do if the employee is medically unfit to work for a period of only several months. This requirement is intended to provide the employee with the maximum opportunity to medically improve so that he or she can return to work instead of being fired.
Despite this requirement, California public schools will regularly place employees on the 39-Month Re-Employment List despite the employee having hundreds of hours of sick time or other types of protected absences.
Relatedly, school districts will often force their employees to take unnecessary medical leaves of absence, even when the injured employee is capable of returning to work with basic accommodations. This practice not only undermines this requirement of the 39-Month Re-Employment List, but also violates the California Fair Employment and Housing Act. (2 Cal. Code Regs. § 11068 (c) [“When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.”].) In other words, if an accommodation would allow the employee to return to work, the employer can not force him or her to use up their sick leave.
To illustrate this common situation, imagine that a school custodian suffered a back injury at work, that the employee improved, but that the employee now has a restriction of no lifting more than fifty pounds. The employee knows from experience that the underlying job does not require him to lift more than 25 pounds alone, and that co-workers can perform a team lift to move objects greater than 50 pounds. However, in abundance of caution the District refuses to allow the employee to return to work until the employee is fully healed. The employee is then forced to remain off work, uses up all of his sick time and protected leaves, and is then placed on the District’s 39-Month Re-Employment List a year later.
Under these facts, while it is true that the employee “exhausted all entitlement to sick leave”, it was the District that unlawfully forced the employee into that position. Therefore, the custodian’s placement on the 39-Month Re-Employment List was not proper and the District has committed disability discrimination in violation of the California Fair Employment and Housing Act.
For these reasons, school district employees who are forced to take a leave of absence should object as early as possible before their sick time is exhausted, request accommodations, insist on returning to work via emails to human resources, and work closely with their doctors to return to work. This practice can prevent the employee’s unnecessary placement on a 39-Month Re-Employment List.
The District must correctly conclude that the employee is “unable to assume the duties of his or her position”, including that no accommodations are available.
If the employee, through no fault of the employer, has used up all of his or her protected time off work, the employer must next accurately determine that the employee is unable to assume the duties of his or her position. This means that the employee cannot perform the essential functions of his or her job, even with reasonable accommodations.
School district-employers often mistakenly believe that this step allows them to circumvent the legal requirements to accurately determine the employee’s precise medical limitations, to determine precisely how the actual underlying job functions are impacted by those employee’s medical limitations, and to accurately determine what, if any, reasonable accommodations exist that would enable the employee to perform the underlying job functions. In other words, this step in the 39-Month Re-Employment List process requires a full-blown California Fair Employment and Housing Act analysis and interactive process by the employer. A failure of the employer to do so, or the failure to accurately conclude that the employee is “unable to assume the duties of his or her position” will make the employer liable for disability discrimination, failure to accommodate, and failure to engage in the interactive process under the California Fair Employment and Housing Act.
So frequently, school district employers are eager to place employees on the 39-Month Re-Employment List and will fail to accurately complete this step of the requirement. This eagerness is often due to pressure from workers' compensation insurance adjusters, third party administrators, perceived financial and budget pressures, and hiring and education benefit deadlines, among other factors. However, ultimately the District’s “motive” does not legally matter. All that an employee needs to prove is that the employee could have continued to perform the essential functions of the underlying position, with or without accommodations, but the employee was placed on the 39-Month Re-Employment List instead.
While all the possible nuances of disability discrimination cannot be discussed in this article, many other articles on this website go into more detail. For purposes of this article:
The employer must accurately identify the employee’s precise job-related limitations:
This means that the employer must identify, correctly, what medical limitations the employee actually has via the employee himself and the employee’s doctors’ notes. This is often easier said than done.
School district employers will oftentimes rely upon outdated or obsolete doctors’ notes that no longer reflect the improved nature of the employee’s medical condition. Even worse, when workers' compensation is involved, employers will sometimes defer entirely to the opinions of the Qualified Medical Examiner (“QME”) or Agreed Upon Medical Examiner (“AME”), and ignore or not accept notes from the employee’s actual doctors. While QME and AME opinions are important for the underlying workers' compensation case, they are not superior to the opinions of the employee’s regular doctors in the context of the interactive process.
Even if the accurate and most current medical note is obtained by the employer, the employer will oftentimes fail to understand what the vague or subjective medical limitations actually mean. For instance, if an employee has limitations stating “no repeated bending”, the employer must determine what “repeated” means. How frequently is the employee permitted to bend? How many repetitions per hour are permitted? Is 15 minutes of total bending per day permitted? Is the doctor seeking to preclude a full bend? Or are even partial bends medically prohibited? School district employers so frequently fail to answer these important questions, and will unlawfully place the employee on a 39-Month Re-Employment List based upon exaggerated and rushed assumptions of the employee’s injuries.
The employer must accurately identify how the employee’s job functions are actually impacted:
Even if the District-employer has accurately identified the employee’s precise job functions, it must then determine how the employee’s essential job duties are affected, if at all. More often than not, school district employers will over exaggerate the physical demands of the underlying job, when the job, in reality, can readily be performed even without accommodations. This is often caused by a determination to fire employees who are deemed susceptible to re-injury in the future and are therefore “liabilities”. It is also driven by the fact that the decision makers responsible for placement of the employee on the 39-Month Re-Employment List work in risk management, human resources, or otherwise have little to no actual understanding of what the underlying job entails.
Moreover, while an accurate job description or written list of essential functions can help determine how the underlying job is impacted, legally this is only one factor of many that must be looked at. An experienced employee who has successfully worked the underlying position must also be relied upon to determine what job functions are essential and how those functions are impacted by the employee’s medical condition (if at all). In other words, the employee himself cannot be ignored when determining if the employee’s medical restrictions actually matter.
Frequently, school districts will unilaterally determine behind closed doors that the employee is unable to perform the underlying position with no contribution from the employee whatsoever.
The employer must accurately determine that no reasonable accommodations exist that would allow the employee to continue working:
Before placing the employee on its 39-Month Re-Hire List, the school district must accurately conclude that no reasonable accommodations would exist that would allow the employee to continue working, even with his or her medical restrictions.
More frequently than not, employees unlawfully placed on a 39-Month Re-Employment List never needed any accommodation at all. This is because many of the most common accommodation requests are already built into the underlying job and are available to all employees, even those who are not injured. This includes lifting-related accommodations. In an effort to prevent injuries, most school districts have policies that say an employee never needs to lift any amount of weight deemed too heavy by the employee. Similarly, school districts will often have policies or be subject to regulations that already require them to provide ergonomic work stations, provide rest and shade breaks, or allow the employee to alternate between sitting and standing during the employee’s work day. In other words, the employee’s restrictions never mattered in the first place.
Similarly, school district employees are often abruptly placed on the 39-Month Re-Employment List after just a single interactive process meeting with human resources or risk management. This rarely, if ever, will be enough substantive time and opportunity for an employee and employer to have a good faith, back and forth, problem solving discussion to identify potential accommodations. The interactive process is not a “one and done” process. Moreover, employees are often ambushed at these meetings and have had little to no advance notice of the meeting or the career ending consequences that could flow from it.
In conclusion, while some employees may be so significantly injured that their placement on the 39-Month Re-Employment List is warranted, in the majority of instances this is unlikely to be the case. Employers frequently bypass the rigorous requirements of the California Fair Employment and Housing Act and place the employee unlawfully on the 39-Month Re-Employment List. School district employees who are languishing on a leave of absence, who are asked to attend interactive process meetings, or are threatened with placement on the 39-Month Re-Employment List should contact an attorney as soon as possible.
Contact the Law Office of Brian Mathias for a consultation.