                          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
