Untitled Texas Attorney General Opinion

                      The Attorney               General of Texas
                                           December   22,    1978
JOHN L. HILL
Attorney General

                   Honorable Joseph N. Murphy, Jr.                  Opinion No. H- 1203
                   Executive Director
                   Employees Retirement System                      Re: Whether the state or a
                     of Texas                                       political subdivision may estab-
                   P. 0. Box 12337, Capitol Station                 lish a special program to make
                   Austin, Texas 78711                              payments    to an employee on
                                                                    account of sickness.

                   Deer Mr. Murphy:

                          You ask: “May the State or any of its political subdivisions establish a
                   special, separate, program to make payments to an employee on account of
                   sickness, such payments not being e continuation of wages?” Your question
                   pertains to the relationship of sick pay to “wages” as that term is used in the
                   Social Security Act and as it has been interpreted by the Secretary of the
                   Department of Health, Education, and Welfare. The inclusion or exclusion of
                   amounts paid public employees as “wages” determines the contribution to be
                   made by public employers end employees, and the rate of benefits to be
                   received ,by the employee.

                         The Social Security    Act defines wages of public employees     to exclude
                   sick pay as follows:

                              [Tlhe term “wages” means remuneration paid . . . for
                              employment . . . except that . . . such term shall not
                              include -

                                 . . . .

                              fb) The amount of any payment . . . made to . . . en
                              employee . . . under a plan or system established by an
                              employer which makes provision for his employees
                              generally . . . on account of . . . sickness or accident
                              disability. . . .

                   42 U.S.C. S 409.

                          The Secretary of Health, Education,       and Welfare has interpreted   this
                   exclusion as follows:




                                                 P-   5129
Honorable Joseph N. Murphy, Jr.      -   Page 2        (H-1303)



           [Playments made by a governmental entity to en employee
           on sick leave are excluded from “wages” only if there is
           legal authority for the employer to make payments specif-
           ically on account     of sickness es distinguished   from
           authorization   to merely continue salary payments during
           periods of absence due to illness.

SSR 72-56 (19721. (Compere the Commissioners of Internal Revenue’s Rev. Rul.
65-275 (19651, applicable to exclusion of sick pay in