                       August 7, 1990



Mr. Ron Lindsey.                Opinion   No.   JM-1203
Commissioner
Texas Department of Human       Re: Sick leave for adopting
  Services                      parents  (RQ-1829)
P. 0. Box 149030
Austin, Texas 78714-9030

Dear Mr. Lindsey:

     you ask whether   the employee leave provisions in the
General Appropriations   Act require or authorize   a state
agency to grant sick leave to an employee adopting a child.
The appropriations   act contains a provision   setting out
circumstances under which sick leave with pay may be taken:

        Sick leave with pay may be taken when sick-
        ness, injury, or pregnancy   and confinement
        prevent the employee's performance of duty or
        when the employee    is needed to care and
        assist a member of his immediate family who
        is actually ~i.11. For purposes relating to
        regular sick leave, immediate     family    is
        defined as those individuals related        by
        kinship,   adoption,   marriage   or    foster
        children who are so certified by the Depart-
        ment of Human Services who are living in
        the same household   or if not in the same
        household  are totally dependent     upon the
        employee for personal care or services on a
        continuing basis.

Acts 1989, 71st Leg., ch. 1263, art. V, 5 8(3), at 5764.
That provision  authorizes use of sick leave for medical
conditions related to pregnancy   and childbirth.  Attorney
General Opinion JM-337 (1985). It does not authorize use of
sick leave for adoption of a child. Id.

     You ask, however, whether the following appropriations
act provision  mandates  or authorizes  leave for adoptive
parents:




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        Pregnancies . . . shall be treated    as any
        other temporary disability.  Each case shall
        be evaluated on its own merit.

Acts 1989, 71st Leg., ch. 1263, art. V, 5 8(6), at      5766.
That language is enigmatic since adoption of a child    would
not normally be considered a disability.

     The language in question   first appeared in the appro-
priations act adopted in 1985. General Appropriations   Act,
Acts 1985, 69th Leg., ch. 980, art. V, § 8f, at budget  483.
A version of the appropriations   act for that year proposed
by the Rouse Committee on Appropriations      contained more
specific language regarding leave for adoptive parents:

           A male or a female employee who adopts a
        child younger than three years of age is
        entitled to use his or her accrued sick leave
        for the purpose of establishing     a family
        environment for the child and for bonding
        that relationship  during any period not to
        exceed six weeks and beginning      within  a
        one-month period after the date that the
        child is placed in the home of the adoptive
        parent.

House Committee on Appropriations, C.S.H.B. 20, art. V, 5 8n
(April 15, 1985). The Conference Committee     deleted that
language and added the provision stating that pregnancies or
adoption of a child under three years of age should be
treated as any other temporary disability.  Conference Comm.
Report, Ii-B. 20, 69th Leg. (1985).

     The only statement we have found in the legislative
history of the 1985 appropriations act in regard to that
provision was part of a resolution  adopted to allow the
House to act upon certain matters     in the   Conference
Committee Report:

        This change would bring state regulations
        into conformance   with federal law     which
        requires maternity to be treated as any other
        temporary disability.

H.C.R.. 257, 69th Leg. (1985). The relevant federal law, 42
U.S.C.   5 2000e(k),   provides that   "women affected     by
pregnancy, childbirth, or related medical conditions    shall
be   treated    the    same   for  all    employment-related
purposes . . . as other persons not so affected but similar
in their ability or inability to work." See also 29 C.F.R.
§ 1604.10(b).   In other words, the federal law requires
employers to treat pregnancy and related medical  conditions



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A



     the same as other medical disabilities.  &   29 C.F.R. Pt.
     1604, Appendix  - Questions  and Answers on the Pregnancy
     Discrimination Act, Pub. L. 95-555, 92 Stat. 2076    (1978).
     It does not require leave for new parents who did not give
     birth.1  Because the language in the appropriations      act
     regarding adoption was not necessary to achieve the stated
     purpose of bringing   the state into compliance   with the
     federal law, the federal law provides no guidance         in
     interpreting that language.

          Even though the language regarding         adoption  seems
     misplaced   in a    provision   addressed    to treatment    of
     disabilities, the legislature obviously      intended that the
     language about adoption       mean something.     We   conclude
     therefore, that a state employee who adopts a child under
     three years of age is entitled to use sick leave.           The
     difficult question is how much leave an adoptive parent      is
     entitled to. The plain language of the rider approaches the
     ridiculous.   It states that adoption     is to be treated as
     "any other temporary disability" and then directs the agency
     to evaluate each case on its own merits. While there might
     be little difficulty    in evaluating     an actual temporary
     disability "on its own merits," it is manifestly     impossible
     to apply temporary disability    standards to something which
F-   is not in fact a disability.     In our opinion, the soundest
     approach is to disregard the Vemporary disability" language
     and apply the standard that each case should be evaluated on
     its merits.

          The specific amount of sick leave permitted should be
     determined by the head of the specific agency, but we
     believe that a standard of reasonableness must be applied in
     each case.   Ordinarily, it would not seem reasonable     to
     grant to adoptive parents a greater amount of sick leave
     than is allowed by that agency to natural mothers        for
     pregnancy  and childbirth.     Until the legislature     has
     provided more guidance in this matter, the amount of leave
     granted will of necessity vary, based on the individual case
     and on the liberality    of the policies   of a particular
     agency.

          You also ask whether adoptive or natural fathers may
     use sick leave in order to form an emotional  bond with a
     child.   In regard to leave for adoptive     fathers, the



          1. Pending   federal legislation would require some
     employers to provide unpaid leave for all new parents.
     H.R. 770, 1Olst Cong., 2d Sess., 136 Cong. Rec. 2218 (1990)
     (passed in the House).




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appropriations  act rider providing    for adoptive    leave
applies to an employee of either sex who adopts a child.
By contrast, nothing  in the appropriations    act however,
authorizes natural parents to use sick leave to care for a
healthy newborn<2  Natural mothers, of course, may use sick
leave for their recovery.

     You then ask whether allowing disability        leave for
pregnancy and childbirth to natural mothers but not natural
fathers is in conflict with Title 42, section 2000e-2 of the
United States Code, which prohibits     discrimination in the
conditions of employment    on the basis of sex. The United
States Supreme
         .-
                 Court has made clear that it does not.
California Fed Sa . & Loan Ass'n. v. Guerra, 479 U.S. 272
(1987); see also Rzcord v. Mill N ck Ma nor Lutheran     School
for the Deaf, 611 F. Supp. 905 (E.Z.N.Y. 1985) (act does not
protect people wishing      to take child-rearing     leave as
opposed to women       wishing  to   take pregnancy     leave).
See aenerally Strimling, The Constitutionalitv of State Laws
Providina   Emnlovment   Leave   f    Preanancv:     Rethinkinq
Geduldia after Cal Fed, 77 Cal. "Lf Rev. 171 (1989).

     You also ask about chapter 106 of the Civil Practices
and Remedies Code, which prohibits the state from denying   a
benefit because of sex.3 We think that a Texas court would
adopt the analysis of the United States Supreme Court and
conclude that allowing disability leave for pregnancy     and
childbirth does not constitute denial of a benefit to men
because of their sex.4 m    Geduldia v. Aiello, 417 U.S. 484



     2. A parent    may use sick leave to care for a sick
child of any age.   Acts 1989, 71st Leg., ch. 1263, art. V,
5 8(3), at 5764.
     3. The Texas act, unlike the federal act, does        not
explicitly prohibit discrimination based on pregnancy.

     4. The difference in treatment here is between natural
parents and adoptive parents.    That is a distinction   based
not on gender, but on parental status. You do not ask, and
we do not consider, whether       such disparate     treatment
violates  the   equal protection      clause.    See aenerallv
Geduldia v. Aiello,    417 U.S. 484    (1974) (pregnancy-based
classification is not sex based classification for purposes
of equal protection    clause because   it divides   potential
beneficiaries  into    two   groups:    pregnant   women   and
non-pregnant women). Nor do we address whether the Texas
Equal Rights Amendment, Tex. Const. art. I, 5 3a, requires
                                          (Footnote Continued)




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    Mr.   Ron Lindsey - Page 5      (JM-1203)




    (1974); General Elec. co. v. Gilbert, 429 U.S. 125, 135-36
    (1976) (pregnancy based discrimination is not discrimination
    based on sex).

                               SUMMARY

                  An appropriations act provision  stating
             that pregnancy and adoption of a child under
             three years of age are to be treated as any
             other disability means that a state employee
             who adopts a child under three years of a9-e
             is to be treated as if he or she had under-
             gone pregnancy and childbirth.  Therefore, an
             employee who adopts a child under three years
             of age may use the amount of sick leave that
             would be necessary to recover from pregnancy
             and childbirth.




                                             JIM     M A-T T 0 X
                                             Attorney General of Texas
P
    MARYKELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUUGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RENEA HICKS
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion   Committee

    Prepared by Rick Gilpin
    Assistant Attorney General




    (Footnote Continued)
    that some  type of leave         be     made    available   to   natural
    fathers.




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