SECTIONS 19251.5-19261 - California Statutes

GOVERNMENT CODE

SECTION 19251.5-19261

19251.5. All state employees and employees of the University of
California and the California State University shall have the right
to communicate with Members and employees of the Legislature.
A state employee, employee of the University of California, or
employee of the California State University may raise as a defense,
at an adverse action hearing, the right to communicate with Members
and employees of the Legislature as provided for in this section
whenever he or she believes that the basis for that adverse action is
retaliation for that communication.

19253. Subject to approval by the board an appointing power with
the concurrence or at the request of an employee may request the
voluntary demotion of such employee to a vacant position.
If the class to which the demotion is proposed requires
qualifications, knowledges, or abilities not measured by the
examination for the class from which demotion is proposed, the board
may examine the employee for the possession of those additional
qualifications, knowledges, and abilities.

19253.5. (a) In accordance with board rule, the appointing power
may require an employee to submit to a medical examination by a
physician or physicians designated by the appointing power to
evaluate the capacity of the employee to perform the work of his or
her position.
(b) Fees for the examination and for the services of medical
specialists or technicians, if necessary, shall be paid by the state
agency. The employee may submit medical or other evidence to the
examining physician or to the appointing power. The examining
physician shall make a written report of the examination to the
appointing power. The appointing power shall provide a copy to the
physician designated by the employee.
(c) When the appointing power, after considering the conclusions
of the medical examination and other pertinent information, concludes
that the employee is unable to perform the work of his or her
present position, but is able to perform the work of another position
including one of less than full time, the appointing power may
demote or transfer the employee to such a position.
Except as authorized by the Department of Personnel Administration
under Section 19837, the employee demoted or transferred pursuant to
this section shall receive the maximum of the salary range of the
class to which he or she is demoted or transferred, provided that the
salary is not greater than the salary he or she received at the time
of his or her demotion or transfer.
(d) When the appointing power after considering the conclusions of
the medical examination provided for by this section or medical
reports from the employee's physician, and other pertinent
information, concludes that the employee is unable to perform the
work of his or her present position, or any other position in the
agency, and the employee is not eligible or waives the right to
retire for disability and elects to withdraw his or her retirement
contributions or to permit his or her contributions to remain in the
retirement fund with rights to service retirement, the appointing
power may terminate the appointment of the employee.
(e) The appointing power may demote, transfer, or terminate an
employee under this section without requiring the employee to submit
to a medical examination when the appointing power relies upon a
written statement submitted to the appointing power by the employee
as to the employee's condition or upon medical reports submitted to
the appointing power by the employee.
(f) The employee shall be given written notice of any demotion,
transfer, or termination under this section at least 15 days prior to
the effective date thereof. No later than 15 days after service of
the notice, the employee may appeal the action of the appointing
power to the board. The board, in accordance with its rules, shall
hold a hearing. The board may sustain, disapprove, or modify the
demotion, transfer, or termination.
(g) Whenever the board revokes or modifies a demotion, transfer,
or termination, the board shall direct the payment of salary to the
employee calculated on the same basis and using the same standards as
provided in Section 19584.
(h) Upon the request of an appointing authority or the petition of
the employee who was terminated, demoted, or transferred in
accordance with this section, the employee shall be reinstated to an
appropriate vacant position in the same class, in a comparable class
or in a lower related class if it is determined by the board that the
employee is no longer incapacitated for duty. Such a reinstatement
to a position in a different agency may be made only with the
concurrence of that agency. In approving or ordering the
reinstatements, the board may require the satisfactory completion of
a new probationary period. When the board finds the employee who was
terminated, demoted, or transferred is no longer incapacitated for
duty but there is no vacant position to which the employee
appropriately can be appointed, the name of the employee shall be
placed upon those reemployment lists that are determined to be
appropriate by the board.
(i) (1) If the appointing power, after considering the conclusions
of the medical examination provided for by this section or medical
reports from the employee's physician and other pertinent
information, concludes that the employee is unable to perform the
work of his or her present position or any other position in the
agency and the employee is eligible and does not waive the right to
retire for disability, the appointing power shall file an application
for disability retirement on the employee's behalf. The appointing
power shall give the employee 15 days written notice of its intention
to file such an application and a reasonable opportunity to respond
to the appointing power prior to the appointing power's filing of the
application. However, the appointing power's decision to file the
application is final and is not appealable to the State Personnel
Board.
(2) Notwithstanding Section 21153, upon filing the application for
disability retirement, the appointing power may remove the employee
from the job and place the employee on involuntary leave status. The
employee may use any accrued leave eligible during the period of the
involuntary leave. If the employee's leave credits and programs are
exhausted or if they do not provide benefits at least equal to the
estimated retirement allowance, the appointing power shall pay the
employee an additional temporary disability allowance so that the
employee receives payment equal to the retirement allowance. The
appointing power shall continue to make all employer contributions to
the employee's health plans during the period of the involuntary
leave.
(3) If the application for disability retirement is subsequently
granted, the retirement system shall reimburse the appointing power
for the temporary disability allowance which shall be deducted from
any back disability retirement benefits otherwise payable to the
employee. If the application is denied, the appointing power shall
reinstate the employee to his or her position with back salary and
benefits pursuant to subdivision (g), less any temporary disability
allowance paid by the appointing power. The appointing power shall
also restore any leave credits the employee used during the period of
the involuntary leave.

19257. Any person acting in good faith in accepting an appointment
or employment contrary to this part or the rules prescribed
hereunder, shall be paid by the appointing power the compensation
promised by or on behalf of the appointing power or, in case no
compensation is so promised, then, the actual value of any service
rendered and the expense incurred in good faith under such attempted
appointment or employment, and has a cause of action against the
appointing power therefor.

19257.5. Where the appointment of an employee has been made and
accepted in good faith, but where such appointment would not have
been made but for some mistake of law or fact which if known to the
parties would have rendered the appointment unlawful when made, the
board may declare the appointment void from the beginning if such
action is taken within one year after the appointment.

19261. (a) The Department of Personnel Administration may establish
standards of health and safety in state agencies and may develop a
comprehensive health and safety program designed to improve the
efficiency and raise the morale of state employees.
Nothing in this section or in the standards established thereunder
shall discriminate against treatment by prayer or spiritual means
nor require physical examination of any employee who files with the
board an affidavit setting forth that he or she depends exclusively
upon prayer for healing in accordance with the teachings of a bona
fide religious sect, denomination or organization and that he or she
is to the best of his or her knowledge and belief in good health and
that he or she claims exemption on such grounds, except that when
there is probable cause to believe that such employee is not
physically able to perform the duties of his or her employment, the
board may require a physical examination of the employee sufficient
to indicate whether or not he or she is able to perform the duties of
his or her employment.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if such provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.