THHE A-HTOWNHCY GRNERAL
OF TEXAS
AURTIN. -a 78711
A-IT0EINEY oQN-*I.
August 5, 1977
Honorable Joe Christie, Chairman Opinion No. H-1036
State Board of Insurance
1110 San Jacinto Re: Validity of personnel
Austin, Texas 78786 policy denying extended sick
leave for pregnancy-related
disabilities.
Dear Mr. Christie:
You ask whether the State Board of Insurance may deny
extended sick leave with pay for disabilities arising from
pregnancy. Under your present policy, employee requests for
extended sick leave with pay on account of pregnancy-related
disabilities are evaluated on the same case-by-case basis as
are requests for extended sick leave on account of other dis-
abilities. The employee's prior attendance and quality of
job performance are considered in evaluating requests. The
maximum amount of extended sick leave available to any indi-
vidual depends upon the length of prior service. The Board
proposes to adopt a policy denying extended sick leave with
pay in the case of any illness or disability caused or con-
tributed to by pregnancy, miscarriage, abortion, childbirth,
or recovery therefrom.
You first ask whether the proposed policy would violate
article V, S 7b of the Appropriations Act. The State Board of
Insurance, an entity financed by appropriated funds, is sub-
ject to this provision, which reads in part:
b. Employees of the State shall, without
deduction in salary, be entitled to sick
leave subject to the following conditions:
. . . .
Sick leave with pay may be taken when
sickness, injury, or pregnancy and oonfine-
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 th'eearliest
practicable time.
P. 4271
. -
Honorable Joe Christie, Chairman - Page 2 (H-1036)
Exceptions to the amount of sick leave
an employee may take may be authorized by
the administrative head or heads of anx
agency of the State provided such excep-
tions are authorized on an individual basis
after a review of the merits of such par-
ticular case. A statement of any such autho-
rized exceptions or the reasons for them
shall be attached to the State agency's dup-
licate payroll voucher for the payroll period
affected by such authorized exceptions.
General Appropriations Act, Acts 1975, 64th Leg., ch. 743,
art. V, 9 7b, at 2849-50 (emphasis added). The same provision
appears in the Appropriations Act for the 1977-79 biennium.
The Act clearly provides that sick leave may be taken for
pregnancy and confinement. Attorney General Opinions H-251
(1974); M-1222 (1972). The Board's authority to spend appro-
priated funds for extended sick leave with pay derives from
the third quoted paragraph and must be exercised in confor-
mity with the legislative intent it expresses. See Attorney
General Opinions H-684 (1975); H-456 (1974): H-116(1973).
We believe that the Legislature intended that agencies granting
extended sick leave should make it available for all the dis-
abilities for which accrued sick leave may be taken. The
second quoted paragraph indicates the purposes for which sick
leave may be taken. In our opinion, the third paragraph, which
provides for exceptions as to amount of sick leave, incorpo-
rates the initial statement as to purposes. Paragraph three
also requires that the agency authorize exceptions on an indi-
vidual basis after reviewing the merits of individual,cases.
We believe the Board's present policy of making case-by-case
determinations for extended sick leave accurately reflects
the intent of the Appropriations Act, while the proposed
policy of excluding pregnancy-related disabilities departs
from the Legislature's intent.
you next ask whether the Board may deny extended sick
leave with pay to pregnant employees without violating the
United States Constitution, the federal civil rights and
equal employment statutes, the Texas equal rights amendment,
or the Texas equal employment law, article 6252-16, V.T.C.S.
Since you must continue your present policy in order to com-
ply with the sick leave provisions of the Appropriations Act,
we need not determine whether adoption of the proposed policy
would violate other provisions of state and federal law.
P. 4272
. -
Honorable Joe Christie, Chairman - Page 3 (H-1036)
You finally ask whether the Board may deny extended sick
leave to an individual pregnant employee, based on the merits
of particular cases, without violating article V, section b of
the Appropriations Act, the United States Constitution, the
federal civil rights statute, the Texas equal rights amend-
ment, or the Texas equal employment laws.
The Appropriations Act expressly states that exceptions
as to sick leave are to be "authorized on an individual basis
after a review of the merits. . . .'I General Appropriations
Act, Acts 1975, 64th Leg., ch. 743, art. V, 9 7b. at 2850.
We do not believe that the denial of extended sick leave
to an individual pregnant employee, based on the same stan-
dards applied to other disabled employees, would violate any
of the other provisions about which you inquire. See General
Electric Co. v. Gilbert, 97 S.Ct. 401 (1976). Gedmiq v.
Aiello, 417 U.S. 484 (1974); Bowe v. Colgate-Palmolive Co.,
416 F.Zd 711, 718 (7th Cir. 1969); Union Free School Dist. No.
6 v. New York State Human Rights Appeal Bd 320 N .E .2d 859
860 (N.Y. Ct. App. 1974); Attorney General'bpinions H-421, h-251
(1,974)
. Whether the denial of extended sick leave in a par-
ticular case would violate any equal protection or equal em-
ployment law would depend upon the facts of that case.
You do not ask about and we do.not address any constitu-
tional issue relating to the conditions under which maternity
leave may be required. See Cleveland Board of Education v.
La Fleur, 414 U.S. 632 (1974) (holding that certain mandatory
maternity leave regulations violated the due process clause);
Attorney General Opinion H-251 (1974).
SUMMARY
The adoption by the State Board of Insurance
of a policy denying extended sick leave with
pay in the case of pregnancy-related disabil-
ities would violate article V, Section 7b of
the Appropriations Act. Denial of extended
sick leave to an individual pregnant employee,
based on the merits of the particular case
would not violate state and federal equal
rights and equal employment provisions.
p. 4273
-. -
Honorable Joe Christie, Chairman - Page 4 (H-1036)
Very truly yours,
/!gLR&
OHN L. HILL
Gefieral'ofTexas
Opinion Committee
klw
p. 4274