                           Office of ttp !Zlttornep @enera
                                   Qtate of QLexas
DAN MORALES
 .~l-TORSEY
        CENERAL                           March 31.1993

      David IL Smith, M.D.                        Opiion No. DM-214
      Cormnissioherof Health
      Texas Dqrtmem of Health                     Re: Impact of “leave without pay”
      11OOwest49tbstreet                          provisions Of the General Appropriations
      Austiq Texas 78756-3199                     Act on the Workers’ Compensation Act,
                                                  V.T.C.S. article 8307~ (RQ-s76)



               You have asked this office to clarify an apparent wnuict between the General
      Appropriations Act and the Workers’Compensation Act, V.T.C.S. article 8307~. In your
      letter, you indicate that the Department ofHealth (“the department”) is concemed because
      the General Appropriations Act appears to prohiii state agencies hln permitting
      empbyees to take more than 12 months of unpaid leave,* while the Workers’Compen-
      ~onAct~thatMemplayercarmottaninateManployeeforfiliagadaimingood
      faith. Cumntly. the deprvtment has an employee who filed a good-f&b compensation
      claimandwillneedtobeonunpaidl~wforloagathan12months.                 Youaskwhetherthe
      department is rquired to terminate this employee.

              We conclude that the department is not required to terminate an employee simply
      because that employee has been on unpaid leave in connection with a work-related injury
      formorethan12months.         Inouropinion,theGeneralAppropriationsActdoesnot
      contlict with the Workers’Compensation Act for two reasons. Fii we read the appro-
      priations act to except employees on leave for work-related injuries from the 12-month
      limit. Second, the appropriations act permits agency heads to grant exceptions to the 12-
      month limit for employees who are on unpaid leave in connection with work-related
      injuries.

             The pertinent subsection of the General Appropriations Act states as follows:
                Il. Agencies may grant employees leave without pay or leave of
                absence without pay subject to the followingprovisions:
                   a. Fxcept for disciplinruy and workers compauation situations
                   all accumulated paid leave ent.iUunentsmust be exhausted before
                   gmthg such leaves, with the additional provision that sick leave




                                            p. 1132
David R Smith, M.D. - Page 2           (DM-214)




             must be exhausted only in those cases where the employee is
             eligible to take sick leave, as provided in section s(2) above.
             Such leaves will be limited in duration to twelve (12) months.
             . . . .

             c. TheadministraGveheadofanagencymaygmntexceptionsto
             theselimitatiorsforsuchreasonsasintemgency~or
             educational plupes.
Acts 1991,72d Leg.. 1st C.S., ch. 19, art. V, 0 8. at 1009.

       We believe that the “except”clause in subdbidon (a) of this subsaxion applies to
the 12-month limit, as well as to the language regan%ng accudated paid leave. The
“except”language was first addedto the General Appr&iations Act in 1985. The 1983
GalemlAppropriationsActcontainedthefollowinglangUge:
          Agenljieamaygmntemployeeslemwithoutpayorleaveofabsencc
          without pay subject to the following provisions:
             (1) AU lccurrmlated paid leave I*-’ ‘mwtbe-
             heforegranting.whleave&witht.headditionalpravirionuutsick
             leavemustbeexhaustedonlyinthosecdseswheretheemphJyl!eis
             digiile to take sick leave, as provision in &don 8.~. above.
             (2) Such leaves will be limited in duration to twelve (12) months.

Acts 1983,68th Leg.. ch. 1095, art. V, 8 8, at 6207. In the 1985 version. the legislature
combmed the language in subdivisions one and two of the 1983 version and added the
exception for discipUmy and workers’compensation situations. We can see no reason for
combiig the two subdivisions other than to make the exceptions appticable to both.
Furthemmre, in 1984, this office concluded that the Workers’won             Act prevents
employers from discharging employees a&r a certain period of time when they are on
unpaid leave for a work-related injury. See Attorney General opinion JM-227 (1984).z
Thus, it seems likely that the legislature added the “except” language to make the
subsection conform to this decision.




                                      p. 1133
David R Smith, M.D. - Page 3          (DM-214)




        We also believe that subdivision (c) gives agency heads the authority to make
exceptions to the 12-month limit for employees who are on unpaid leave to recover f+om
work-related injuries. By using the phrase “for such reasons as,” the legi&ure indicated
that the listings following this phrase were not ex&sive. We believe that this language
gives agency heads the authority to extend unpaid leaves beyond 12 months when doing
so will advanw the agulcyk interests.

                                   SUMMARY

               Astateagencyisnotrequiredtotermina@         an employee simply
          because that employee has been on unpaid leave in connection with a
          work-related injury for more than 12 months. The General Appro-
          priations Act does not contlict with the Workers’Compensation Act.
          Rather, the appropriations act excepts employees on leave for work-
          related injuries from the 124nonth limit. In additioq we believe the
          appropriations act permits agency heads to grant exceptions to the
          12-month limit for ~employeeson unpaid leave in connection with
          work-related injuries.




                                                   DAN      MORALES
                                                   Attorney Oeneral ofTexas

WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Attorney General for Litigation

RENEAHXKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Margaret A Roll
Assistant Attorney General




                                     p. 1134
