The Top 6 Signs that You Will End Up on The 39-Month Re-Employment List

What is the 39-Month Re-Employment List?

The 39-Month Re-Employment List is a special termination procedure that only applies to public school employees. This includes teaching staff, called “certificated employees” as well as non-teaching staff, called “classified employees” (Gov’t. Code §§ 44978.1, 45195).  A 39-Month Re-Employment List does not apply to every type of termination of public school employees, but only those employees who are terminated because of the employee’s inability to perform their job because of a medical condition. The medical condition does not have to be workers’ compensation-related, although this is frequently the case.

The 39-Month Re-Employment List is not to be taken lightly. Although school administrators and their defense lawyers claim otherwise, placement on the list is tantamount to an actual termination of employment for the employee. However, the public school employer must first correctly meet several requirements before placing the employee on the 39-Month Re-Employment List. The District’s failure to correctly comply with the law typically will constitute disability discrimination, the failure to provide reasonable accommodation, and/or a failure to engage in a timely and good faith interactive process (Gov’t. Code §§ 12940(a)(m)(n)). These are all violations of the California Fair Employment and Housing Act (“FEHA”) and expose the public school district-employer to extremely large legal claims at a jury trial where the employee can recover lost wages, benefits, human impact damages, and attorney fees. 

The underlying employer-requirements include: 

1) Correctly determining that the employee cannot perform the essential functions of the underlying position, even with reasonable accommodations. This is by far the biggest and trickiest employer-requirement.

2) Correctly determining that the employee has used up all possible forms of protected time off, called “exhaustion” of leave.  

High and mid-level government bureaucrats often botch these requirements and violate the FEHA by placing employees on the 39-Month Re-Employment List who are fully capable of working with basic accommodations or even no accommodations whatsoever. 

Assuming an employee has correctly been placed on the 39-Month Re-Employment List, the employee is supposed to be first in line to resume working any open position at the District for a period of 39 months, assuming the employee has the basic qualifications. During the 39-Month period, the employer is required to proactively alert the affected employee to openings that arise at the district, before those positions are publicly posted (Jensen v. Wells Fargo (2000) 85 Cal.App.4th 205, 261-262), The District cannot merely direct the employee to a list of open positions on its website or on EdJoin.com. School Districts never perform this latter requirement, which is yet another violation of the FEHA. These are the only benefits that the 39-Month Re-Employment List provides to the employee not available to a complete stranger who has never been employed by the district. 

In reality, although the 39-Month Re-Employment List provides benefits on paper, school districts do not abide by the law and weaponize the procedure against sick or injured employees who are often fully capable of working with just minor or cost-free accommodations. Even worse, districts will block employees placed on the 39-Month Re-Employment List from returning by not contacting them about open positions, forcing them to interview with other candidates, or simply ignoring their future applications to return.  

With that summary, here are the top six signs that a public school employee will be placed on a 39-Month Re-Employment List. 

Sign Number 1: The Employee Got Hurt at Work and Has a Workers' Compensation Claim

Workplace injuries are governed by an area of law called workers' compensation,  as well as the FEHA. Even though the workers' compensation system is called a “no fault” system and employers are mandated to have insurance coverage, school districts simply dislike when employees report workplace injuries and especially hate when the employee files any sort of workers’ compensation claim to get compensated for that injury.

This animosity towards employees with workplace injuries (called “industrially injured employees”) is because even small workplace injuries create an administrative headache and are expensive and time consuming to deal with. Moreover, most workplace injuries are viewed with skepticism by the District. Even though public employees are required to report their workplace injuries and can even be disciplined for failing to do so, school districts frown upon the underlying employee filing a workers’ compensation claim for their injury. 

Compounding this bias is fact that public schools’ workers’ compensation insurance companies, also referred to as “third party administrators”, will encourage, incentivize, and even recommend the outright termination of public school employees who have filed a workers' compensation claims via placement on the 39-Month Re-Employment List. This is because injured employees are deemed a liability, are viewed as having a greater risk of re-injury, or are more prone to file future legal claims. Although insurance companies may also be sued under the FEHA for their unlawful involvement and influence in a termination, the danger is real to the employee (Gov’t. Code § 12940 (i); See also Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 291). Even worse, workers’ compensation insurance companies are viewed with great deference by district administration and are often relied upon for legal advice when determining whether or not to accommodate an injured employee.

This existing danger of being placed on the 39-Month Re-Employment List is compounded if the employee has filed multiple workers’ compensation claims, if there have been multiple injuries, if the injuries are viewed as especially expensive, if the employee is over 55, or if the employee is perceived as being near retirement. Workers’ compensation insurance companies internally describe these employees as “targets” for termination. 

For all of these reasons, the employee’s risk of ending up on the 39-Month Re-Employment List is heightened if he or she has a workers’ compensation claim. 

Sign Number 2: The Employee Has Difficult Medical Restrictions

Under the FEHA, no employer is required to honor any and all medical restrictions, no matter what. Only accommodations that are “reasonable” must be provided to the employee and accommodations that are viewed as an “undue hardship” do not need to be provided (Cal. Gov’t. Code §§ 12940 (m) [requirement for only “reasonable” accommodations], 12926 (u) [“undue hardship defense”]). For this reason, when an injured employee has medical restrictions that are particularly restrictive, unusual, or difficult to accommodate, this greatly increases the chances of the employee ending up on the 39-Month Re-Employment List. 

Examples of medical restrictions that are especially difficult to accommodate include:

• Restrictions that would require the employee to work only part-time when the employee works a full-time job; 

• Restrictions that call for long medical leaves of absence or require more time away from work than the employee has accrued. See “Sign Number 3”, below; 

• Restrictions that categorically prohibit any one type of physical movement, no matter how slight. For example, restrictions that call for “no bending”, “no stooping”, “no kneeling”, “no use of knee”, “no walking”. 

• Restrictions that call for reduced stress in the workplace. 

• Restrictions that call for desk duty or seated work when the employee works a primarily physical job or has no white collar work experience or qualifications. 

To be clear, many times restrictions such as the ones identified could be legally accommodated by the district. Moreover, the law requires at minimum a good faith interactive process with the employee to see if accommodations are possible (Gov’t. Code § 12940 (n)). However, these strict legal requirements are often ignored and do not stop the public school employer from falsely claiming that accommodations are not possible and summarily terminating the employee via the 39-Month Re-Employment List. This is because public school districts are typically wealthy and even districts in an alleged “budget crisis” have extremely large budgets, robust legal resources, and insurance.  Moreover, school district human resources staff and superintendents of human resources are frequently uneducated in the FEHA and face no personal or professional risk for unlawful behavior, even when million dollar FEHA payouts result from their behavior. Simply put, public school districts do not care if the FEHA is violated and if the District gets sued.

To stay off the 39-Month Re-Employment List, employees should work very closely with their doctors to list only those medical restrictions that are strictly necessary. Medical restrictions or accommodations that would merely be efficient, nice, or convenient to the employee should not be included. Old restrictions that are no longer needed should be removed. The doctor should not list particular accommodations for those restrictions unless the doctor and employee know those accommodations can be provided. The employee’s doctor should be expressly told that the employee could be terminated if limitations are issued that cannot be accommodated. In the event the employee has lost medical insurance coverage, the employee should pay to see his or her old doctor out of pocket simply to obtain an updated and clarified note. Moreover, all efforts should be made to continue working with self-provided accommodations and simply bypassing human resources with any accommodation-related needs. 

Sign Number 3: The Employee Is On a Long Leave of Absence

The FEHA expressly states that a medical leave of absence can be a form of potential reasonable accommodation for employees. Moreover, the Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) require that many employers provide employees with three months of protected time off work for a serious illness. Notably, however, it is illegal for the employer to place the employee on a medical leave of absence when other reasonable accommodations are available that would actually keep the employee working. 

Unfortunately, public school districts are notorious for placing employees on unneeded leaves of absence when the employee could be working with basic accommodations or even no accommodations. This typically arises after an employer is provided a doctor’s note that contains work restrictions and then, after perfunctory review, the District unilaterally claims that the restrictions cannot be accommodated by any other means. 

The danger of being placed on an unnecessary leave of absence is that even the largest of employers are not required to provide lengthy, let alone indefinite leaves of absence. This is the case even if the leave of absence is unpaid. Eventually, employees on lengthy leaves of absence (i.e. those longer than 3 months), will be sent a letter from the employer demanding that they return to work or otherwise face termination via the 39-Month Re-Hire List. In other words, when an employee is on a leave of absence, the clock starts ticking and the employee will eventually burn through all their protective leave making a termination the next sequential step. 

For this reason, employees of public school districts should only go on a medical leave of absence if it is truly necessary to do so, meaning that no other accommodation would allow them to continue working. If employers incorrectly claim that accommodations other than a medical leave of absence are not available it is critical for the employee to insist on additional interactive process meetings, to object to the District’s position in writing via email, to assert that the district’s conduct violates the FEHA, and to obtain revised doctors notes as necessary. Moreover, an employment law attorney should be contacted by the employee at this juncture.

Employees of school districts are often left languishing on unnecessary leaves of absence for months, or even years. These are prime indicators that the employee will be placed on a 39-Month Re-Hire List.  

Sign Number 4: The Employee Works as a Custodian, in Food Service, or as a Special Needs Aide

Employees working certain positions at California public school districts are far more likely than others to end up being unlawfully fired via placement on the 39-Month Re-Hire List. Those who are most likely to be unlawfully placed on the 39-Month Re-Hire list are custodians, employees working in food service, or special needs aides. 

School districts keep statistics of what positions generate the most workers’ compensation and what positions create the most expensive claims. Naturally positions that are inherently physical in nature, such as a custodian, get injured more often and have more expensive workers’ compensation claims than a teacher or an office assistant. Moreover, employees in these positions are viewed and treated as readily replaceable and less likely to fight back. 

Public schools will “target” specific positions for unlawful termination disguised as a legal 39-Month Re-Hire List placement. This is done because the employee is viewed as a liability, as more likely to file additional claims, and to place the employee in economic peril to get leverage for a low-ball workers’ compensation settlement. 

Sign Number 5: The District is Vindictive or the Employee is Disliked by Superiors

Generally speaking, it is lawful to treat an employee differently, or even discipline or terminate the employee, because he or she does not get along well with others, because the employee has a bad attitude, or the employee has an awkward or unpleasant personality. While this danger is somewhat mitigated for an employee of a public school district, it is still far easier and less legally risky to discipline or terminate an employee for personality-based reasons than reasons that involve a protected characteristic, such as a health condition or need for reasonable accommodation. 

Despite this, school principals, superintendents, and public school human resources staff falsely believe that it is more legally defensible to fire an employee for medical, disability, or accommodation-related reasons rather than personality-based reasons. In other words, public school employers view placement on the 39-Month Re-Hire List as a highly expedient method to terminate a generally disliked employee.

For this reason, public school employees with minor medical conditions that can be readily accommodated, or even have been successfully accommodated for lengthy periods of time, will be terminated via the 39-Month Re-Hire List for simply being disliked. 

Sign Number 6: The Employee Has Been Told That He or She will Be Placed on the 39-Month List

Anytime a public school employee needs a reasonable accommodation for a medical condition, or the public school employer falsely believes an accommodation is required, the employee should assume that he or she is in potential danger of being placed on the 39-Month Re-Hire List. However, employees are sometimes expressly told this at interactive process meetings or are warned about this in writing. 

Any public school employee who is given this warning should contact a wrongful termination attorney specializing in the areas of disability discrimination and reasonable accommodation right away. 

Are you in danger of being placed on the 39-Month Re-Hire List? Contact the Law Office of Brian Mathias. 

What Does the District Have to Do Before Putting Me on a 39-Month Re-Employment List?

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. 

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.