                        September 26, 1988



Mr. Willie L. Scott                opinion No.   JM-956
Executive Director
Texas Department of Community      Re: Use of sick leave by
   Affairs                         employees who are     in-
P. 0. BOX 13166                    voluntarily terminated
Austin, Texas   78711              (RQ-1372)
Dear Mr. Scott:
     You describe a situation in the Texas Department of
Community Affairs (TDCA), in which employees in certain
programs were laid off after the transfer of two major
federal programs to the Texas Department of Commerce. Some
of the affected employees elected to remain on the TDCA
payroll to exhaust accrued vacation time rather       than
receiving a lump sum payment for their vacation. You ask
whether these employees may use previously earned sick
leave during the time they are on vacation. We answer your
question in the affirmative.
     We assume for the purposes of this opinion that the
employees in question are covered by the General Appropria-
tions Act. We also assume that they have had continuous
employment with the state for at least six months, rendering
them eligible for paid vacation.   Acts 1987, 70th Leg., 2d
C.S., ch. 78, art. V, S Ea, at 824.
     Since 1977, each general appropriations act has con-
tained nearly identical provisions establishing separate
entitlements for paid vacation and sick leave for state
employees. In addition, the vacation and sick leave      -
visions of the General Appropriations Act establish 't:e
parameters in which those entitlements are earned. Applic-
able portions of the current act provide:
           Sec. 8.   EMPLOYEES VACATIONS AND LEAVES.
          a. [Elmployees of the state shall,     with-
       out deduction in salary be entitled       to a
       vacation in each fiscal year.




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Mr. Willie L. Scott - Page 2    (JM-956)




           .   .   .   .

           An employee will earn vacation entitlement
        beginning on the first day of employment with
        the state and terminating on the last day of
        duty.
           .   .   .   .

           A state employee who resigns, is dis-
        missed, or separated from state employment
        shall be entitled to be paid for all vacation
        time duly accrued at the time of separation
        from state employment, provided the employee
        has had continuous employment with the state
        for six (6) months.
           .   .   .   .


           C.  Employees of the state shall, without
        deduction in salary, be entitled to sick
        leave subject to the following conditions:
           An employee will earn sick leave entitle-
        ment beginning on the first day of employment
        with the state and terminating on the last
        day of duty.
           . . . Sick leave accrual shall   terminate
        on the last day of duty.
           Sick leave with pay may be taken when
        sickness, injury, or pregnancy and confine-
        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 the     earliest
        practicable time.
           .   .   .   .

           Uoon return to duty after sick leave the
        employee concerned shall, without      delay,
        complete the prescribed application for sick
        leave and submit the same through proper
        channels to the appropriate authority for his
        consideration. (Emphasis added.)




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    Mr. Willie L. Scott - Page 3     (JM-956)




    Acts 1987, 70th Leg.,   2d C.S., ch. 78,    §§ 8a, 8c, at   825,
    826.
         In the past, this office has had several occasions on
    which to examine the relationship between employment status
    and the vacation Andysick leave benefits of state employees.
    While your specific question has not been         considered
    previously, relevant opinions of this office have con-
    sistently concluded that an employee who remains on the
    payroll is entitled to vacation and sick leave benefits but
    that an employee who receives a lump sum payment for accrued
    vacation is no longer eligible for employee benefits.    See
    Attorney General Opinions JW-556 (1986) (extended period of
    sick leave does not interrupt period of continuous employ-
    merit);JW-204 (1984) (part-time and temporary employees are
    entitled to vacation and sick leave benefits): NW-427 (1982)
    (employee may be involuntarily terminated while on sick
    leave, but must be paid for portion of accrued sick leave
    that is required for him to recover): MW-282 (lump sum pay-
    ment for accrued vacation does not extend employment for
    longevity or hazardous duty pay), MW-247 (1980); H-1096
    (1977) (lump sum payment for aCCNed      vacation does not
    extend period of employment); H-684 (1975).
C

         You suggest that the sick leave provisions of the
    General Appropriations Act are applicable only to employees
    who will actually be returning to duty. We disagree. While
    the applicability of the sick leave provisions quoted
    earlier may be somewhat ambiguous in the situation that you
    present, we conclude that sick leave benefits are available
    to an employee who is 'actually ill, or whose immediate
    family member is ill whether the employee will return to
    duty or not.
         The sick leave provisions of the General Appropriations
    Act as drafted reflect the usual employment situation,
    anticipating that the employee will return to work.    These
    provisions work well enough for the usual         employment
    situation when the employee actually does return to work.
    In the current instance, the employees who have been laid
    off will not Veturn     to duty,". nor does illness alone
    "prevent the employee's performance of duty." One reading
    of the sick leave provisions is that sick leave benefits are
    available to an employee only when the employee and the
    agency intend that there will be a return to duty. In our
    opinion, however, this is neither a necessary conclusion
    from the language of the act nor the fairest reading of the
    language. The reference to returning to duty, in our
    opinion, is made only in the context of a deadline for




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Mr. Willie L. Scott - Page 4     (JM-956)




submitting appropriate paper work, not as        a   condition
precedent to the operation of the entitlement.
     The General Appropriations Act has established sick
leave as an entitlement subject to certain conditions:   (1)
actual sickness, injury, or pregnancy of the employee nor a
member of his immediate family: (2) notification of the
supervisor at the earliest practicable time: and         (3)
completion and submission of the prescribed application for
leave to the appropriate authority.   In case of illness of
more than three days, there is the additional requirement of
a doctoFs certification of the illness. We find no express
requirement in the act that the employee return to duty.
     In Attorney General Opinion MW-427 (1982) this office
concluded that an employee who is involuntarily terminated
while on extended sick leave is nonetheless entitled to be
paid for whatever portion of his aCCNed  sick leave that is
used for him to recover from his illness. Although that
opinion did not conclude that the employee should be
retained on the payroll until he had recovered, it did
determine that the employee was entitled to be paid for
those days when he had a bona fide illness. Our determina-
tion in the instant case is consistent with that earlier
opinion.
     Two   state officers with interpretive authority con-
cerning    state employee benefits support our view.        In
response   to your question the state auditor filed a brief in
which he   included the following discussion:
        In our reading of the sick leave provisions,
        we find no basis for an agency to refuse to
        grant sick leave to an employee for a bona
        fide illness, who has been noticed for lay-
        off, requests and is allowed to remain on the
        payroll to exhaust his/her vacation and re-
        guests sick leave during the extended period.
        Of course, if the agency suspects an abuse of
        sick leave then it should take appropriate
        action to investigate the request just as it
        does with any employee8s sick leave request
        where abuse is suspected.
     The state comptroller also has fiscal responsibility
and interpretive authority in regard to the payment of state
employees. Gov't Code 55 403.001-.122. When the legisla-
ture enacted a~provision allowing state employees to receive
a lump sum for accrued vacation time upon separation from        -,




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Mr. Willie L. Scott - Page 5     (JM-956)




state employment (article 6252-8b, V.T.C.S.), the comp-
troller issued two memoranda to all state agencies des-
cribing the effect of the statute and outlining the proce-
dures to be followed. In his memorandum, dated June 27,
1975, the comptroller stated that the new lump sum provision
was not to be construed to prevent an employee of the state
from electing to remain on an agency payroll until all
accrued vacation time was exhausted.     In his memorandum
dated August 13, 1975, the comptroller noted that "an
employee may not remain on an agency payroll to expend
aCCNed sick leave eXCeDt  for leait&mate illness." (Emphasis
added.)1
     In reading the sick leave provision about which you
inquire, we follow a rule of statutory construction that
was discussed in Attorney General Opinion W-984 (1971).
That op'inioninterpreted leave provisions contained in the
General Appropriations Act and stated:
      If there be any doubt or ambiguity in the
      statute calling for construction, it should be
      resolved in favor of the beneficiary under the
      well settled canon which demands a liberal
      construction in favor of encouraging State
      service by State employees.
Attorney General Opinion W-984 (1971), at     2;   see   also
Attorney General Opinion JM-407 (1985).
     We adhere to that rule of construction to resolve the
ambiguity in the sick leave provisions of the General
Appropriations Act in favor of encouraging state service.
We conclude that a state employee who has completed his
final day of duty with an agency but who remains on the
payroll to expend his accrued vacation time            sick
leave for his own bona fide illness or for the ~%~~~  of a
member of his immediate family.




   1. Before the enactment of article 6252-8b, V.T.C.S.,
employees whose state employment was terminated remained on
the payroll to exhaust their accNed      vacation benefits.
Since the effective date of this statute, employees may
choose either to receive a lump sum payment for earned
vacation or to remain on the payroll.




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                                                               ,

Mr. Willie L. Scott - Page 6     (JM-956)




                      SUMMARY
           A state employee who has completed his
        final day of duty with an agency but who
        remains on the payroll to expend his aCCNed
        vacation time may use sick leave for his own
        bona fide illness or for that of a member of
        his immediate family.




                                  -J I M   MATTOX
                                   Attorney General of Texas
WARYKELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAIUKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General




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