THXE ATIPORNEY GENERAL
OF TEXAS
JOHN L. axa
A-- o-llr
October 15, 1974
Mr. B. L. DeBerry Opinion No. H- 421
Chief Engineer
Texas Highway Department Re: Is an employee of
Austin, Texas 78763 the Texas Highway
Department entitled
to extended sick leave
Dear Mr. DeBerry: due to pregnancy.
your letter asking our opinion gives the following fact situation as
background.
The employeein question took a leave of absence from December 1,
1973 to February 1, 1974, for reasons of pregnancy without requesting
extended leave tith pay.
By memorandum of October 1, 1973. to her supervisor, this employee
requested a leave of absence for maternity purposes, which was approved,
beginning December 1. 1973. She thenused all of her accumulated sick
leave and vacation prior to that termination date. On February 1, 1974
she returned to work and was reinstated in her previous job. She has
now requested that she be compensated retroactively for the period of
December 1, 1973 to February 1, 1974.
At the time your Department had no provision for extended sick leave
for maternity purposes. Nor did it have provisions requiring any parti-
cular prenatal termination or postnatal waiting period. No extended
sick leave was offered to thi.s employee, but she was free to and did
select both her termination date and the date of her reemployment.
At the time the stated policy of the department was as follows:
SERIOUS ILLNESS:
In casea of serious illness, the Department,
acting through the Personnel Division, File
D-13,. is privileged to extend additional sick
leave to those employees having a minimum
p. 1958
. .
Mr. B. L. DeBerry, page 2 U-I-4211
of two years’ continuous service with the
Department immediately preceding the sick
leave. This applies alike to monthly and
hourly employees, but does not include
persons employed on a part-time or piece-
work basis or persons employed periodically.
This applies only to the illness of the em-
ployees and not the illness of a relative of
the employee.
A maximum of ninety (90) days’ sick leave
for any continuous period may be granted.
Extended sick leave is computed on a calen-
dar day basis rather than a working day
basis. Employees may not be granted any
extended sick leave until after they have
used all accrued regular sick leave.
Requests for extended sick leave in excess
of 30 calendar days must be supported by a
doctor’s certificate.
Based on these facts, you have asked three questions:
1. Is the employee described in the foregoing
situation eligible for compensation by way of her
usual salary for the two month period during
which she did not work?
2. If Question No. 1 is answered in the affirma-
tive, does it follow that the Highway Department
is legally authorized and/or obligated to make
such paymen.t to this employee? In connection
with this questi~on. we assume that if your answer
is in the affirmaiive that we will still have the
prerogative to investigate such claim upon an
individual basis as to the need for a two month
absence and make payment for a lesser period
if in our judgment two months is considered
exceshve.
3. Is our assumption in Question No. 2 correct?
p. 1959
. . .
Mr. B. L. DeBerry, page 3 (H-421)
In Attorney General Opinion H-251 (1974). answering questions
concerning the rights of pregnant state employees, we said:
. . . [Plregnancy and childbirth may not
be treated as different from any other
sort of temporary disability. A pregnant
woman, upon taking leave of absence to
have her child, should be allowed to exhaust
her vacation time and sick leave, and if it
is the agency’s policy to extend sick leave
in the event of other types of temporary
disability, she should be entitled to similar
consideration.
The pregnant woman’s right to future
employment in the same or any other state
agency, her rights to job classification,
compensation, retirement benefits, and
other job benefits should be determined
exactly as if her leave were occasioned by
an injury or illness.
You have not indicated that the Department’s policies with reference
to extended sick leave require that a claim or request for such leave be
filed before the employee is away from work, or that there is any period
of limitation after the absence during.which the right has to be asserted.
If this is so and a person seeki;lg extended sick leave for a non-maternal
physical condition of disability some six to eight months after returning
to work would not be barred from asserting his rights, then we believe
the pregnant employee would be entitled to assert the same rights.
The specific answers to your questions will have to depend upon facts
not before us. A female employee’s rights to compensation for the
period she is away from work for pregnancy will depend on whether any
other employees would have col.lected for disability caused by illness
during the same period. Whether the Department now, some eight months
after the fact, should pay will depend on whether it would not pay another
employee who had waited eight months to claim extended sick leave. Of
course, the Department will have the opportunity to investigate any claims
to deteriuine whether the absence is actually required.
p. 1960
. ,
Mr. B. L. DeBerry, page 4 (H-421)
SUMMARY
The rights of a female state employee to make
a claim for extended sick leave some months after
returning to work will depend upon whether other
employees would have been .entitled to such leave
for other types of illness and if so, whether their
claims would have been honored after a similar
lapse of time.
Very truly yours,
Attorney General of Texas
AP
Opinion Committee
p. 1961