September 26, 1988
Mr. Willie L. Scott opinion No. JM-956
Executive Director
Texas Department of Community Re: Use of sick leave by
Affairs employees who are in-
P. 0. BOX 13166 voluntarily terminated
Austin, Texas 78711 (RQ-1372)
Dear Mr. Scott:
You describe a situation in the Texas Department of
Community Affairs (TDCA), in which employees in certain
programs were laid off after the transfer of two major
federal programs to the Texas Department of Commerce. Some
of the affected employees elected to remain on the TDCA
payroll to exhaust accrued vacation time rather than
receiving a lump sum payment for their vacation. You ask
whether these employees may use previously earned sick
leave during the time they are on vacation. We answer your
question in the affirmative.
We assume for the purposes of this opinion that the
employees in question are covered by the General Appropria-
tions Act. We also assume that they have had continuous
employment with the state for at least six months, rendering
them eligible for paid vacation. Acts 1987, 70th Leg., 2d
C.S., ch. 78, art. V, S Ea, at 824.
Since 1977, each general appropriations act has con-
tained nearly identical provisions establishing separate
entitlements for paid vacation and sick leave for state
employees. In addition, the vacation and sick leave -
visions of the General Appropriations Act establish 't:e
parameters in which those entitlements are earned. Applic-
able portions of the current act provide:
Sec. 8. EMPLOYEES VACATIONS AND LEAVES.
a. [Elmployees of the state shall, with-
out deduction in salary be entitled to a
vacation in each fiscal year.
p. 4845
Mr. Willie L. Scott - Page 2 (JM-956)
. . . .
An employee will earn vacation entitlement
beginning on the first day of employment with
the state and terminating on the last day of
duty.
. . . .
A state employee who resigns, is dis-
missed, or separated from state employment
shall be entitled to be paid for all vacation
time duly accrued at the time of separation
from state employment, provided the employee
has had continuous employment with the state
for six (6) months.
. . . .
C. Employees of the state shall, without
deduction in salary, be entitled to sick
leave subject to the following conditions:
An employee will earn sick leave entitle-
ment beginning on the first day of employment
with the state and terminating on the last
day of duty.
. . . Sick leave accrual shall terminate
on the last day of duty.
Sick leave with pay may be taken when
sickness, injury, or pregnancy and confine-
ment prevent the employee*s performance of
duty or when a member of his immediate family
is actually ill. . . . An employee who must
be absent from duty because of illness shall
notify his supervisor or cause him to be
notified of that fact at the earliest
practicable time.
. . . .
Uoon return to duty after sick leave the
employee concerned shall, without delay,
complete the prescribed application for sick
leave and submit the same through proper
channels to the appropriate authority for his
consideration. (Emphasis added.)
p. 4846
Mr. Willie L. Scott - Page 3 (JM-956)
Acts 1987, 70th Leg., 2d C.S., ch. 78, §§ 8a, 8c, at 825,
826.
In the past, this office has had several occasions on
which to examine the relationship between employment status
and the vacation Andysick leave benefits of state employees.
While your specific question has not been considered
previously, relevant opinions of this office have con-
sistently concluded that an employee who remains on the
payroll is entitled to vacation and sick leave benefits but
that an employee who receives a lump sum payment for accrued
vacation is no longer eligible for employee benefits. See
Attorney General Opinions JW-556 (1986) (extended period of
sick leave does not interrupt period of continuous employ-
merit);JW-204 (1984) (part-time and temporary employees are
entitled to vacation and sick leave benefits): NW-427 (1982)
(employee may be involuntarily terminated while on sick
leave, but must be paid for portion of accrued sick leave
that is required for him to recover): MW-282 (lump sum pay-
ment for accrued vacation does not extend employment for
longevity or hazardous duty pay), MW-247 (1980); H-1096
(1977) (lump sum payment for aCCNed vacation does not
extend period of employment); H-684 (1975).
C
You suggest that the sick leave provisions of the
General Appropriations Act are applicable only to employees
who will actually be returning to duty. We disagree. While
the applicability of the sick leave provisions quoted
earlier may be somewhat ambiguous in the situation that you
present, we conclude that sick leave benefits are available
to an employee who is 'actually ill, or whose immediate
family member is ill whether the employee will return to
duty or not.
The sick leave provisions of the General Appropriations
Act as drafted reflect the usual employment situation,
anticipating that the employee will return to work. These
provisions work well enough for the usual employment
situation when the employee actually does return to work.
In the current instance, the employees who have been laid
off will not Veturn to duty,". nor does illness alone
"prevent the employee's performance of duty." One reading
of the sick leave provisions is that sick leave benefits are
available to an employee only when the employee and the
agency intend that there will be a return to duty. In our
opinion, however, this is neither a necessary conclusion
from the language of the act nor the fairest reading of the
language. The reference to returning to duty, in our
opinion, is made only in the context of a deadline for
P. 4841
Mr. Willie L. Scott - Page 4 (JM-956)
submitting appropriate paper work, not as a condition
precedent to the operation of the entitlement.
The General Appropriations Act has established sick
leave as an entitlement subject to certain conditions: (1)
actual sickness, injury, or pregnancy of the employee nor a
member of his immediate family: (2) notification of the
supervisor at the earliest practicable time: and (3)
completion and submission of the prescribed application for
leave to the appropriate authority. In case of illness of
more than three days, there is the additional requirement of
a doctoFs certification of the illness. We find no express
requirement in the act that the employee return to duty.
In Attorney General Opinion MW-427 (1982) this office
concluded that an employee who is involuntarily terminated
while on extended sick leave is nonetheless entitled to be
paid for whatever portion of his aCCNed sick leave that is
used for him to recover from his illness. Although that
opinion did not conclude that the employee should be
retained on the payroll until he had recovered, it did
determine that the employee was entitled to be paid for
those days when he had a bona fide illness. Our determina-
tion in the instant case is consistent with that earlier
opinion.
Two state officers with interpretive authority con-
cerning state employee benefits support our view. In
response to your question the state auditor filed a brief in
which he included the following discussion:
In our reading of the sick leave provisions,
we find no basis for an agency to refuse to
grant sick leave to an employee for a bona
fide illness, who has been noticed for lay-
off, requests and is allowed to remain on the
payroll to exhaust his/her vacation and re-
guests sick leave during the extended period.
Of course, if the agency suspects an abuse of
sick leave then it should take appropriate
action to investigate the request just as it
does with any employee8s sick leave request
where abuse is suspected.
The state comptroller also has fiscal responsibility
and interpretive authority in regard to the payment of state
employees. Gov't Code 55 403.001-.122. When the legisla-
ture enacted a~provision allowing state employees to receive
a lump sum for accrued vacation time upon separation from -,
P. 4848
Mr. Willie L. Scott - Page 5 (JM-956)
state employment (article 6252-8b, V.T.C.S.), the comp-
troller issued two memoranda to all state agencies des-
cribing the effect of the statute and outlining the proce-
dures to be followed. In his memorandum, dated June 27,
1975, the comptroller stated that the new lump sum provision
was not to be construed to prevent an employee of the state
from electing to remain on an agency payroll until all
accrued vacation time was exhausted. In his memorandum
dated August 13, 1975, the comptroller noted that "an
employee may not remain on an agency payroll to expend
aCCNed sick leave eXCeDt for leait&mate illness." (Emphasis
added.)1
In reading the sick leave provision about which you
inquire, we follow a rule of statutory construction that
was discussed in Attorney General Opinion W-984 (1971).
That op'inioninterpreted leave provisions contained in the
General Appropriations Act and stated:
If there be any doubt or ambiguity in the
statute calling for construction, it should be
resolved in favor of the beneficiary under the
well settled canon which demands a liberal
construction in favor of encouraging State
service by State employees.
Attorney General Opinion W-984 (1971), at 2; see also
Attorney General Opinion JM-407 (1985).
We adhere to that rule of construction to resolve the
ambiguity in the sick leave provisions of the General
Appropriations Act in favor of encouraging state service.
We conclude that a state employee who has completed his
final day of duty with an agency but who remains on the
payroll to expend his accrued vacation time sick
leave for his own bona fide illness or for the ~%~~~ of a
member of his immediate family.
1. Before the enactment of article 6252-8b, V.T.C.S.,
employees whose state employment was terminated remained on
the payroll to exhaust their accNed vacation benefits.
Since the effective date of this statute, employees may
choose either to receive a lump sum payment for earned
vacation or to remain on the payroll.
p. 4849
,
Mr. Willie L. Scott - Page 6 (JM-956)
SUMMARY
A state employee who has completed his
final day of duty with an agency but who
remains on the payroll to expend his aCCNed
vacation time may use sick leave for his own
bona fide illness or for that of a member of
his immediate family.
-J I M MATTOX
Attorney General of Texas
WARYKELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAIUKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4850