This guest post was authored by Judith Islas

Disability-Sign.jpgDoes an employee who retired because of disability, but is now medically cleared to return to work, have the right to get his old job back?  And, does the employer have an obligation to engage in the interactive process and agree to reasonable accommodations whenever a former employee wants to return to work and even though the employer does not intend to rehire him?  Thankfully, the California Court of Appeal answered no to both questions when deciding a case where Peter Brown and I defended a local fire district in a disability discrimination lawsuit brought by a former fire captain who retired due to a disability in 2002 and demanded to be rehired in 2006.

The Court’s decision is significant because it rejects the former employee’s attempt to  misuse the disability discrimination laws to demand preferential treatment, instead of equal treatment.  The former employee argued that, because he is disability retired, the disability discrimination laws required the district to rehire him, once he was medically cleared to work.  He argued that although retired and no longer a district employee he should nevertheless be treated the same as a disabled employee on medical leave, who has the right to return to work once medically cleared.  The former employee also argued that, once he demanded to return to work, the district was required to immediately engage in the interactive process and agree to specific reasonable accommodations.

The Court of Appeal firmly rejected both arguments.  The Court’s reasoning is captured in these few sentences:

In our view-based, we think, on common sense and common understanding –‘retirement’ is a generally permanent life choice and reflects the understanding of both parties that the employer/employee relationship has terminated.  ‘Retirement’ is not the same thing as ‘leave of absence,’ and no amount of saying it will make it so.

Also, the Court explained, the district did not have an obligation to engage in an interactive process or agree to reasonable accommodation for a former employee it did not intend to rehire.

The decision in this case avoids what would have created an impossible task for employers, to guarantee that a disability retiree could have his old job back if he was later medically cleared and wanted to return to work.  That would give employers the options of indefinitely holding a job open or filling the job, but creating another one if the former employee ever asks to return to work.  This would provide disability retirees even more protection than current employees on leave as the cases do not require that their position be kept open for an indefinite time period.

Although, this victory was decisive, a word of caution is in order.  Although, there is no right to be rehired, a disability retiree has the right to apply for positions open to external candidates.  And, of course, the application must be processed and considered using the same non-discriminatory standards as any other applicant.