Medical Actions

The purpose of this section is to provide guidance, information and resources available on how to handle situations where an employee is no longer able to perform the duties of his/her position and it is suspected that this inability is due to a medical condition.

It is the policy of the Department of General Services (DGS) that a medical transfer, demotion or termination of an employee shall be based on an individual consideration of the employee’s ability to safely and efficiently perform the essential functions of a position in the employee’s classification.

Medical transfer or demotion shall take place only when:

• A physical or mental condition will prevent an employee from safely and efficiently performing the duties of any position in the class
• DGS is unable to provide reasonable accommodation or find other placement

Medical termination shall take place only when:

• A physical or mental condition will prevent an employee from safely and efficiently performing the duties of a position in the employee’s class or any other class to which DGS could transfer or demote the employee
• DGS is unable to provide a reasonable accommodation in any class
• The employee is ineligible or waives the right to disability retirement

Process

In order to determine an employee’s capacity to work, the employee’s supervisor shall contact the program’s assigned Classification and Pay (C&P) Analyst to initiate the procedures. The procedures may include the following and are discussed in depth in the Personnel Management Policy and Procedures Manual (PMPPM) Section 420.

• Medical examination
• Medical demotion, transfer and reduction in time base
• Termination of a permanent or probationary employee for medical reasons
• Disability retirement

Medical Examination

The C&P Analyst may:

• Require the employee to submit to a medical examination (If a medical examination is required, the medical examination fee is paid by DGS), or
• Rely upon a written statement from the employee’s physician as to the employee’s condition, or
• Rely upon medical reports submitted by the employee

After considering the conclusions of the medical examination or the submitted statements, and any possible reasonable accommodation, DGS may:

• Demote, including a reduction in time base
• Transfer
• Place on disability retirement
• Terminate

Note: Reasonable accommodation shall be carefully considered.

Medical Demotion, Transfer and Reduction in Time Base

If it is determined that the employee is unable to perform the work of his/her present position but is able to perform the work of another position or one of less than full time, DGS may reduce the time base of or demote or transfer a permanent or probationary employee for medical reasons.

Classes to which the employee may be medically demoted or medically transferred normally are determined in the same manner as non-medical demotions or transfers (refer to PMPPM Sections 315 and 400). The C&P Analyst may check with the State Personnel Board’s (SPB) Medical Officer to determine if the duties of the class to which the employee is being demoted or transferred are within the medical ability of the employee.

If the employee’s medical problem is temporary a “Temporary Assignment of Injured Employee” may be considered (see PMPPM Section 343).

Termination of a Permanent or Probationary Employee for Medical Reasons

A permanent or probationary employee may be terminated for medical reasons only if:

• s/he is not able to perform the work of his/her present position or any other position in the department and s/he is not eligible for disability retirement
• s/he is eligible for but waives disability retirement

Disability Retirement

The Public Employees’ Retirement System (CalPERS) determines the employee’s eligibility for disability retirement.

Taking Action During a Leave of Absence (LOA)

An employee may be medically demoted, transferred, placed on disability retirement, or terminated while on:

• a regular leave of absence (LOA) including one for illness
• nonindustrial leave (NDI)

An employee cannot be medically terminated while on a job incurred injury or illness leave (IDL). An employee may be medically demoted, transferred or placed on disability retirement while on IDL only after the steps outlined in CalHR Rule 599.766 have been taken and reasonable accommodations made.

If an employee receives temporary disability (TD) compensation under the provisions of Division 4 (commencing with Section 3200) or Division 4/5 (commencing with Section 6100) of the Labor Code either in lieu of or at the expiration of industrial disability benefits, the employee is still considered to be on IDL (see CalHR Rule 599.766 if benefits are discontinued).

When TD or IDL benefits cease, paid administrative leave time may be used to cover the period of time between when the benefits are discontinued and DGS takes one of the actions cited in CalHR Rule 599.766. Note: The employee cannot remain on IDL after all benefits including TD have been exhausted.

The Workers’ Compensation Appeals Board (WCAB) or the CalPERS may declare an employee to be permanently partially disabled (e.g., 30% disabled or unable to perform specific duties such as lifting). If it is determined the employee is permanently partially disabled, DGS must take one of the following actions:

• provide reasonable accommodation in the employee’s class
• transfer the employee to another position in the same class or a class at substantially the same level with duties the employee can perform
• demote the employee to a position in a lower class with duties s/he can perform

Rejection During Probationary Period for Medical Reasons

A probationary employee shall be advised of the possibility of such rejection in time to allow him/her to meet the medical requirement during the probationary period, if possible.

If it is determined that the medical requirement cannot be met, a Notice of Rejection for medical reasons may be served on the employee prior to the expiration of the probationary period.

Return Rights after Industrial Disability Leave (IDL)

When an employee’s IDL or TD benefits have terminated, DGS must take one of the following actions:

1. After the employee has successfully completed a vocational rehabilitation program while under IDL, DGS shall initiate one of the following actions:
   1. restore the employee to his/her former position
   2. demote or transfer the employee to another position, if the employee is able to perform such duties
   3. request SPB to assist in placing the employee in another position in State service
   4. place the employee on a temporary assignment in another line of work with intent to transfer at a later date
   5. place the name of the employee on all appropriate reemployment lists as determined by SPB at such time as no immediate placement is available
2. If the employee is medically unable to undergo or successfully complete the vocational rehabilitation program, or if the employee has successfully completed the vocational rehabilitation program but suitable employment is not available, DGS may:
   • medically terminate the employee or
   • request disability retirement
3. An employee whose IDL benefits have been exhausted may request a regular LOA for medical reasons.

Return Rights after Non-industrial Disability Leave (NDI)

When NDI benefits are exhausted, DGS must:

• Reinstate the employee to his/her former position; or
• Take any of the actions provided by Government Code (GC) Section 19253.5, which covers medical transfer, demotion, termination and disability retirement

Reinstatement after LOA for Medical Reasons

Unless DGS has taken medical termination, demotion, or disability retirement action and given the employee full due process prior to the expiration of the leave, the employee must be reinstated immediately at the expiration of the leave.

If the medical problem persists, DGS can consider medical demotion, transfer, disability retirement, or termination. If the employee notifies DGS at the expiration of the LOA that s/he is not medically able to return to work, DGS must consider medical demotion, transfer, disability retirement, or termination.

Reinstatement after Transfer, Demotion, or Termination for Medical Reasons

An employee who has been demoted, transferred, or terminated for medical reasons has indefinite mandatory rights of reinstatement.

Reinstatement after Disability Retirement

An employee has the right to return to a position in his/her former class if CalPERS determines that the employee is no longer incapacitated for employment in that class. The employee must be released from retirement status by the CalPERS before s/he can be put back to work.

Notice to Employee

An employee who is being demoted (including reduction in time base), transferred, or terminated, must be given a written notice at least 15 days prior to the effective date of the action.

Appeal Rights

No later than 15 days after the service of the notice of any transfer, demotion or termination for medical reasons, the employee may appeal the action of DGS to SPB.