Untitled Texas Attorney General Opinion

Office of ttp !Zlttornep @enera Qtate of QLexas DAN MORALES .~l-TORSEY CENERAL March 31.1993 David IL Smith, M.D. Opiion No. DM-214 Cormnissioherof Health Texas Dqrtmem of Health Re: Impact of “leave without pay” 11OOwest49tbstreet provisions Of the General Appropriations Austiq Texas 78756-3199 Act on the Workers’ Compensation Act, V.T.C.S. article 8307~ (RQ-s76) You have asked this office to clarify an apparent wnuict between the General Appropriations Act and the Workers’Compensation Act, V.T.C.S. article 8307~. In your letter, you indicate that the Department ofHealth (“the department”) is concemed because the General Appropriations Act appears to prohiii state agencies hln permitting empbyees to take more than 12 months of unpaid leave,* while the Workers’Compen- ~onAct~thatMemplayercarmottaninateManployeeforfiliagadaimingood faith. Cumntly. the deprvtment has an employee who filed a good-f&b compensation claimandwillneedtobeonunpaidl~wforloagathan12months. Youaskwhetherthe department is rquired to terminate this employee. We conclude that the department is not required to terminate an employee simply because that employee has been on unpaid leave in connection with a work-related injury formorethan12months. Inouropinion,theGeneralAppropriationsActdoesnot contlict with the Workers’Compensation Act for two reasons. Fii we read the appro- priations act to except employees on leave for work-related injuries from the 12-month limit. Second, the appropriations act permits agency heads to grant exceptions to the 12- month limit for employees who are on unpaid leave in connection with work-related injuries. The pertinent subsection of the General Appropriations Act states as follows: Il. Agencies may grant employees leave without pay or leave of absence without pay subject to the followingprovisions: a. Fxcept for disciplinruy and workers compauation situations all accumulated paid leave ent.iUunentsmust be exhausted before gmthg such leaves, with the additional provision that sick leave p. 1132 David R Smith, M.D. - Page 2 (DM-214) must be exhausted only in those cases where the employee is eligible to take sick leave, as provided in section s(2) above. Such leaves will be limited in duration to twelve (12) months. . . . . c. TheadministraGveheadofanagencymaygmntexceptionsto theselimitatiorsforsuchreasonsasintemgency~or educational plupes. Acts 1991,72d Leg.. 1st C.S., ch. 19, art. V, 0 8. at 1009. We believe that the “except”clause in subdbidon (a) of this subsaxion applies to the 12-month limit, as well as to the language regan%ng accudated paid leave. The “except”language was first addedto the General Appr&iations Act in 1985. The 1983 GalemlAppropriationsActcontainedthefollowinglangUge: Agenljieamaygmntemployeeslemwithoutpayorleaveofabsencc without pay subject to the following provisions: (1) AU lccurrmlated paid leave I*-’ ‘mwtbe- heforegranting.whleave&witht.headditionalpravirionuutsick leavemustbeexhaustedonlyinthosecdseswheretheemphJyl!eis digiile to take sick leave, as provision in &don 8.~. above. (2) Such leaves will be limited in duration to twelve (12) months. Acts 1983,68th Leg.. ch. 1095, art. V, 8 8, at 6207. In the 1985 version. the legislature combmed the language in subdivisions one and two of the 1983 version and added the exception for discipUmy and workers’compensation situations. We can see no reason for combiig the two subdivisions other than to make the exceptions appticable to both. Furthemmre, in 1984, this office concluded that the Workers’won Act prevents employers from discharging employees a&r a certain period of time when they are on unpaid leave for a work-related injury. See Attorney General opinion JM-227 (1984).z Thus, it seems likely that the legislature added the “except” language to make the subsection conform to this decision. p. 1133 David R Smith, M.D. - Page 3 (DM-214) We also believe that subdivision (c) gives agency heads the authority to make exceptions to the 12-month limit for employees who are on unpaid leave to recover f+om work-related injuries. By using the phrase “for such reasons as,” the legi&ure indicated that the listings following this phrase were not ex&sive. We believe that this language gives agency heads the authority to extend unpaid leaves beyond 12 months when doing so will advanw the agulcyk interests. SUMMARY Astateagencyisnotrequiredtotermina@ an employee simply because that employee has been on unpaid leave in connection with a work-related injury for more than 12 months. The General Appro- priations Act does not contlict with the Workers’Compensation Act. Rather, the appropriations act excepts employees on leave for work- related injuries from the 124nonth limit. In additioq we believe the appropriations act permits agency heads to grant exceptions to the 12-month limit for ~employeeson unpaid leave in connection with work-related injuries. DAN MORALES Attorney Oeneral ofTexas WILL PRYOR First Assistant Attorney General MARYKELLER Deputy Attorney General for Litigation RENEAHXKS State Solicitor MADELEINE B. JOHNSON Chair, Opinion Committee Prepared by Margaret A Roll Assistant Attorney General p. 1134