Discipline for inability to perform the job

NJ STATE PBA LEGAL CORNER

By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.

It is not uncommon for law enforcement officers to find themselves in a position in which they can no longer perform the job because of an injury. If a law enforcement officer agrees that he or she is unable to perform the job, the best route is through a disability retirement. However, officers who accept that they can no longer perform the job may face a couple of responses from an employer. The employer may file an involuntary disability application with the Police and Fire Retirement System (PFRS) which the officer can then challenge. Or the employer may bring disciplinary charges against the officer for inability to perform the job, which the officer can appeal. A recent decision addresses the latter situation.

In Tretsis v. Middlesex County Sheriff, the appellate division affirmed a ruling by the Civil Service Commission which removed a sheriff’s officer from her position because of her inability to perform her job. Both the commission and the administrative law judge (ALJ) found that the officer could not perform the essential functions her position, and the appellate division agreed. Although the sheriff terminated her, the court also affirmed the part of the ruling which modified her termination to a resignation in good standing.

By way of background, the officer injured her knee after falling on ice in the parking lot at her job site. She received workers’ compensation benefits and returned to work on light duty. Roughly one year later, she took a six-month leave from work for reasons unrelated to the injury. Shortly after the end of her leave of absence, and nearly two years after the date of her injury, the officer had surgery on her knee.

After the surgery, she continued to experience pain, difficulty running and trouble navigating stairs. As a result, she was not cleared to return to light-duty work. She challenged the finding that she could not perform her job. In response, she was given two functional capacity examinations (FCE), both of which found that she could not perform the duties of a sheriff’s officer.

Her employer reviewed the medical records and determined that the officers’ physical limitations prevented her from returning to full duty. Consequently, the officer was served with a preliminary notice of disciplinary action which sought removal from her position. After a departmental hearing, the employer sustained the charge of inability to perform the essential functions of the job, issued a final notice of disciplinary action and terminated the officer.

On appeal, the officer presented one expert who testified that she was able to perform the duties of a sheriff’s officer. However, the expert was unable to challenge the results of the two FCEs. The sheriff presented two expert witnesses in support of its position that the officer could not perform her duties. The ALJ credited the testimony of the sheriff’s witnesses and concluded that the officer could not perform the essential duties of a sheriff’s officer.

However, the ALJ did not sustain the termination. Instead, because the reason for the termination was her inability to perform her job due to a physical injury, and not as the result of any misconduct, the ALJ modified the officer’s termination to a resignation in good standing. The commission affirmed.

The officer appealed this decision and argued that the commission and the ALJ disregarded critical medical evidence, that the sheriff presented conflicting positions based on identical findings in the FCEs, and that the sheriff never identified the essential functions of her role as sheriff’s officer.

The appellate division rejected these claims and found that the officer’s arguments on appeal were “so lacking in merit as to not warrant much discussion in a written opinion.” In affirming the commission’s ruling, the court found that the record amply supported the commission’s determination that the officer could not perform the duties of a sheriff’s officer at the time of her removal.

The court also concluded that the parties provided ample testimony as to the essential functions of a sheriff’s officer. The court further affirmed the commission’s modification of the termination to a resignation in good standing in light of the undisputed fact that no misconduct had occurred. The officer has asked the NJ Supreme Court to hear her appeal. As of this writing, the Supreme Court has not decided whether to hear her appeal.

This case will not have an impact on officers who agree that they are unable to perform the essential functions of the job. Officers who agree that they cannot perform the essential responsibilities of their positions will not face disciplinary action if the officer is injured in the performance of his or her duties. Under N.J.S.A. 52:17B-243, a law passed in 2017 and supported by the NJ State PBA, an employer is prohibited from terminating an officer if the officer is physically unable to perform the job and is required to maintain the officer’s health insurance. The only conditions are that the officer must apply for retirement with the PFRS, and the officer must have sick leave or workers’ comp time available.

An important point to keep in mind is that an officer can only file for disability retirement benefits while he or she is still an employee. Because a disability application can only be filed while the officer is an employee, an officer who is terminated may lose the ability to file for disability retirement benefits. Officers who are faced with claims that they are not able to perform the essential functions of their jobs should consult with experienced attorneys to discuss their options.