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Will SB 897 create a public safety risk?

Will SB 897 create a public safety risk?

SB 897 is a bill working its way through the legislature and many observers expect it to make its way to the Governor’s desk by August 31st.  The bill would provide a second year of Labor Code section 4850 pay for each injury claimed by police officers and firefighters.

A question has arisen as to whether the proposed law would inadvertently risk public safety by creating extended vacancies in police and fire departments, keeping active duty safety personnel off the streets longer.

Current law allows for one year of full pay and a protected leave of absence for each injury sustained by police officers and firefighters.  As amended, SB 897 adds an additional year of 4850 pay when those injuries are “catastrophic,” as defined.

The problem arises not in the Labor Code but in the Government Code.  Many public agencies, already struggling with the costs of safety officer injury claims, are prohibited from hiring replacement police officers and firefighters while an injured employee is still out on 4850 leave of absence, often until such time as the employee  elects to forgo further 4850 pay and voluntarily retires on disability.  (There are many financial disincentives for them to do so.)

Fortunately, Government Code section 21152 allows the agency to initiate that CalPERS disability retirement process. This is especially helpful in cases where it is medically probable that the injured employee will not be able to recover and return to full duty, and the agency desperately needs to fill that position with an active duty police officer or firefighter to protect the public.

However, Government Code section 21164 limits the agency’s authority to file that retirement application until after the leave of absence under Section 4850 ends, or the earlier date during the leave when  the disability is permanent and stationary as found by the Workers’ Compensation Appeals Board (WCAB). (It is well known that such findings from the WCAB may be delayed for years.)

By extending 4850 pay and leaves from one to two years, SB 897 may in effect result in  more police and fire positions  sitting vacant for twice as long, until the agency is finally  permitted under the Government Code to retire that employee and fill that position with an active duty officer or firefighter.

These extended vacancies mean that the remaining police officers and firefighters still on duty will have to work more shifts and more overtime (at an additional cost to taxpayers).  Studies have shown that people working overtime in any occupation may be less effective at their jobs and are themselves prone to more workers’ compensation injuries as a result of working those longer shifts.

Unfortunately, the unintended consequence of SB 897 and the potential public safety risk it creates seems to have received little consideration through the legislative process.

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