5 Things to Do If You Are On a 39 Month Re-Hire List

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 Oftentimes employers rely on outdated restrictions when placing the employee on the 39-Month Re-Employment List or falsely accuse the employee of having “permanent restrictions” that simply do not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. 

39-Month Re-Employment Lists: What the District Won't Tell You

Public school employees get a benefit not available to any other type of California employee. That is, the ability to go on the school district’s 39-Month Re-Employment List in the event the employee is too injured to keep working. While on paper the 39-Month Re-Employment List may seem like a perk, in reality the school district-employer will rarely, if ever, correctly follow the law and, as a result, completely undermine any protection the 39-Month Re-Hire List was designed to provide. 

This article will explore the hidden secrets of the 39-Month Re-Employment List. 

What is a 39-Month Reemployment List? 

As a refresher, the 39-Month Reemployment or Re-Hire List is a legal 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. 

What is supposed to happen before an employee goes on the 39-Month Re-Employment List? 

Before the employee is ever placed on a 39-Month Re-Employment List the District-employer must correctly determine 1) that the employee is so injured that he or she cannot perform one or more essential job functions and 2) that no reasonable accommodations exist that would allow the employee to continue working in their current position. A reasonable accommodation is any type of workplace modification or a change in how the job is performed, that would circumvent the otherwise restrictive impact of the employee’s injury or illness (called a “disability”). 

If the District fails to correctly answer either of these questions, disability discrimination has occurred which is a violation of the California Fair Employment and Housing Act. (Cal. Gov’t. Code § 12940(a)). Notably, in order to commit disability discrimination the District does not need to have a hatred or dislike of injured people. The District’s mere incorrect conclusions about the employee’s ability to do the job, with or without accommodations, makes them liable. As explained in a separate article which may be found here, school districts rarely, if ever, legally place employees on the 39-Month Re-Employment List. 

What are the employee’s rights while on the 39-Month Re-Employment List? 

Even in the case where the employee was lawfully placed on the 39-Month Re-Employment List, this does not end the District’s obligations to the employee. For the entire time that the employee is on the 39-Month Re-Employment List, the District must proactively identify and offer vacant positions to the employee (called “reassignment accommodations''). Districts never do this. As a result, even if disability discrimination was not initially committed upon the employee’s initial placement on the list, simply ignoring the employee for the 3.25-year duration of the 39-Month Re-Employment List would separately constitute a violation of the California Fair Employment and Housing Act. 

Can the District just refer me to the open positions on its website? 

A school district employer cannot simply refer the disabled worker to the open positions on its website. For over twenty years, California law has confirmed that a reassignment accommodation requires more than simply referring the employee to the employer’s website or bulletin board to see what jobs may be open. Rather, the employer must proactively inform the employee about any open, vacant, and funded positions that the employer has. The reason for this requirement is simple. Employers often know about upcoming job vacancies long before they are ever posted online for the general public. Employers must share this level of insider information with the disabled employee on the 39-Month Re-Employment List before the general public is ever made aware of it.

The ramifications of this legal requirement on a school district and employees on a 39-Month Re-Employment List are enormous. This is because school district employers, even small ones, will often post hundreds of jobs over the course of an employee’s stint on the 39-Month Re-Employment List. Many of those positions will require no certification, college degrees, or technical knowledge. The employee must be proactively notified about every single one of these positions. If the employee is qualified for the position, the disabled employee must be given preferential opportunity for the position over all other candidates. In other words, the employee cannot be forced to interview and openly compete with a non-disabled worker applying for the same position. 

What if the District says the employee is unqualified to perform an open position? 

School districts will often unnecessarily keep employees on a 39-Month Re-Employment List by inaccurately telling the employee they are unqualified to perform an open position. Sometimes this is because the employer and their insurance carrier or third party administrator have the strategic legal objective that the employee never return to work. If this occurs, the employee should ascertain what the employer means by “unqualified”. If the employee is deemed unqualified in the sense he or she lacks a required teaching credential, a lengthy period of education, or a government license the employee does not possess, this could be problematic for the employee.  

More commonly, the employing school District will claim the employee is “unqualified” for a potential reassignment or transfer because the written job description has physical requirements that the employer believes the employee cannot satisfy. If this occurs, the employer is obligated to start a brand new interactive process with the employee, explore what accommodations might exist for the new position, and identify the precise job-related limitations it believes the employee cannot physically perform. Employers never bother to do this.

Moreover, while written job descriptions can potentially be accurate, they are oftentimes inaccurate, outdated, or written by human resources officials who never actually performed the job. For example, minimum weight lifting requirements in job descriptions are frequently in direct conflict with workplace safety trainings that require and encourage the employee to get help lifting any amount of weight deemed too heavy by the employee. In other words, the interactive process for a potential reassignment should not fail or succeed based upon a written job description, especially a minimum lifting requirement. 

Can a reassignment accommodation require the employee to take a pay cut? 

If a reassignment accommodation is appropriate, the employer does not have to offer the same rate of pay or salary that the employee was earning in their former position. However, if taken of the 39-Month Re-Employment List via a reassignment accommodation, the public school employee will re-accrue extremely valuable health benefits and retirement service credits with CalPERS. 

Have you been placed on a 39-Month Re-Rehire List? Do not give up. Contact the Law Office of Brian Mathias. 

39-Month Rehire List Myth Busting

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. 

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.