.         \

      -            .




                                         The Attorney General of Texas
                                                               Aupmt         14.   1985
    JIM MAl-lOX
    Attorney      General


    5u~mm Cewl Building                 Ronorable Bob Bullack                                     Opinion     No.   Jn-337
    P. 0. Box 12543                     Comptroller of Public AcconlltE
    *u*in, TX. 75711-254s               L.B.J. State Office Building                              Re: Whether a state             employee      is
    5lW75-2501                          Auetin, Texar   18774                                     entitled to paternity            leave
    Telex Ola57~lJB7
    wecoviw 512l4750265
                                        Hr. James Ilambletow
                                        Director
    714 Jackson.Sulle 700               State Law Library
    cle1111.
           TX. 75202-4505               P. 0. Box 12367, Upitol                Station
    2W742-5544
                                        Austin,  Texu     78:ll.l

    a4        Aibma Ave.. sulto ((IQ    Gentlemen:
    ElPuo.lx. 79K627w
    91%3%3434                                You inqeire uhether the                  General     Approprietione         Act entitlea         ule
                                        employee0 to peternity leave.
     1001T~Xse.suite 700
     Nuuelon. TX. 77002.3111                  Mr. Bullock        elks    the following          questions:
     7tSrZ235fJm
                                                         1. Does the General Appropriations                       Act entitle
                                                      mele employeee to six weeks pregnancy                      leave?
     9W Bmedwy. SUNS312
     LubboclsTX. 794013479
     8w7476235
                                                         2. Does thm Pregnancy       D%scrlminatlon    Act
                                                      cnntainrd in Title VII of the Civil   glghtr Act of
                                                      1984 reciuiire M to grant male aployeea    six weeks
     43W N. Tenth. BuNa B                        *.   of pre6mmcy leave?
     NcAem, TX 7B501-le95
     5lm524547
                                              Hr.     Bdleton     inquires            about     tba     interpretation       of     6lck   leave
                                         prodeioua      fonnd jLr~article            V. section       g of the General       Appropriationr
                                   97    &et fur 1903-8s. me ads:

                                                          1.     Ilay   l    male    take sick        leave   uuder 8.~. vhen
                                                      bir parum          ia pregnent?

                                                           2. 'If l ule    wanted to t&e    some 'paternity
                                                       luve'   Cleave without   pay) under eectlonr8.g. and
                                                       a.m., would thet   male employee exhaust sick leave
                                                       u well. aa rscatlon     leeve before going on leave
                                                       tithaut  p8y?

                                         Mr. Eambl~too         all*,    ub         ma to   addxass      rh    questlon     of     maternfty         or
                                         patenitty     leave for adoptive parentr.




                                                                                   p. 1534
,
    Waorablr   Bob Bollock
    nr. Jues   RaBbleton
    rage 2                                  (JnaX’)




         We will     address             tlr.    Bulltxk’ s first    qucstlon.

         The relevant               sick        leave   provisions   in the Generel   Appropriations
    Act are ae follow:

                   c.   Employees    <If the    stete    shell,   without
               deduction    la sala.rq,    be entitled    to sick    leeve
               subject   to the foll,oving   conditions:

                      .    .    .    .

                    Sick leave vith clay may be tsken vhen sIckneee,
                injury,      or pregnsrgy       end coufine~t        prevent     the
                employee’s       performnce       of duty or when a member of
                his     immediate        f&ly       ie    actuslly    ill.       For
                ouruoses      relating     & rexular etck leave,         lmdiate
                ia&ly      ia define:      as t&se      individuals    releted    by
                kinship,       adoption     or marriege who are living             in
                the same household or if not in the same houaehold
                are     totally       deptntdent     upon the clployee           for
                personal       care or services        on e ccmtlnuing       baels.
                An employee vho wet             be ebsent      fra  duty because
                 of illness       ehall    uotify    his superrlaor        or cause
                him to be aotlflcd            of that fact at the earliest
                 practicable       time.

                          . . . .

                        I- gmployees         Vaklng leave        due to pregnancy
                   lbell be entitledIt            en abeence of oix veeko after
                   the date of deliw~.               Leave without pay ahall be
                   authorized,       subjwt      to the provisions         of Article
                   V. Section       8-r.    WI thie Act. u naedad to enable
                   t& s six veek l             sbeeace     aiter    delivery.      The
                   ldminletrativa         htrttd or heeds of agenciee         uy z
                   .requira that a p&nent             aDloy.8     take the full     *ix
                   *.           After taihng       this six veeka absence,          the
                    ldninistrstive         besd or heads of an agency may
                    authorize      enldditionel        rusoneble     period of tlu
                    for pregnancy        leave uithout       psy on an individual
                   beeis     after    a rwieu       of the’ merits of each par-
                    ticular     cese, anI1 eubject to the sane requirclents
                    to exhaust        accumulated       paid leeve       as outlined
                    above in this sec,tlon.

                          . .       . .

                       j.   The Stattr Audltor  &all                    provide   a uniform
                   interpretation    of the provisions                    hreSn    contained




                                                           p. 1535
    ftonorable   Mb Sallock
    Mr.  Jama    Uambletoa
    ?ego 3                        m-337)




                 on employee vacations  and leaves,   snd shall report
                 to the governor end the Legislsture     any exceptions
                 practiced   by the verious   entities    of the atate
                 government.

                     . . . .

                      I.  Agencies my grant employees  leave vithout
                  psy or leave of absence without pey subject  to the
                  following  provisianr:

                      (1) All accumulated         paid leave       entitlements
                  must be exhausted        before    granting     euch leaves.
                  with the sdditioncll.    prwlsion     that sick lesve must
                  be exhsusted      or:Ly in      those     cases    where the
                  employee   is   ali~;i.ble    to tske sick lesve.             as
                  provided in Sectitm 8.~. abwe.

                      (2) Such leavlca till        be llmlted      in duration    to
                  twelve (12) rDnth)B,.

                     (3) Subject t,D fiscel      constreints.         approve1 of
                  such leaves    constitutes   a gusrantee          of employment
                  for s specified     period of time.

                      (4)   The edmirl~.etretive    head of an agency may
                   grant exceptions     to there     limitatlonr    for such
                   reasons as intersgency       egreements    or educational
                   pwpoae~.    (bphmis added).

      General    Appropriations     Act.   Acts    1983.      68th Leg.,   ch.   1095,   art.    ‘1.
.
      18, at b204-07.

            SectioD 8g establieber      the pregnancy leave eatltlemeat                     of     a
      pregnant    employee. See At.torney General Opinion g-1036 (1977).                         The
      firet sentewe refer570 “~e]mployeestaking leave due to pregnancy”
      and, read in isolation,.           WLght suggest        that an employee could take
      laave due to the pregnancy               of another pereon. Rmmvar, elaeuhere.
      aaction8g referr to “a pr~qnant employee” in stating the terma of the
      leave      entitlement.       Tha      legislature      used      the phrase      “pregnent
      employee[s]”       interchaagealdy        vitb    “[e]mployeea       taking leave    due to
      pwm-9.~            gorewer.     tbo atate auditor’s           office.     which is respon-
      sible    for giviag l u nifo nr interpretation             of the leeve provision,       has
      pointed out vlth respect           j:o the prwislon         for six weelm’ leave after
      delivery      thst the final      postpartum       medical exam osuelly        ie scheduled
       for a* weeks after daliveq.                  See J.A. Pritchard         A P.C. MacDonald.
      Ullliama      Obstetrics,    ‘457 (16th x           1980).     8.1. Dep. No. 948, 95th
      coo&* 2d Sees. S (1978). xe tinted in 1978 U.S. Code Gong. & Ad. tkve
       4749, 4753 (te8timony thel,        -+in 95 o EMU, time lwt from work due to




                                                  p.   153b
      gowtsble      Bob Bulloak
      Mr. James Rubletoo
      Pago 4                         (Jn-337)




      pregasncy       6 weeks or less:),
                     la                     Tbe length     of the pregnancy lsavc
      entitlement   reflecta it8 purhoee:     to allou    the pregnant asployee     a
      reasonable  tioc to recoverph:roically     from childbirth  before returning
      to vork.   We conclude that thlc pregnency leave prwiaion       in erticle   V,
      section  8a of the General    Al?proprietions    Act does not entitle      me18
      employees to take six veeks' 'pregnancy leave.

            We vi11 next eddrers nr. Fiembleton's    first question -- vhether    A
      mele mey take sick       leave   rnder section    8c uhen his   pertner   la
      pregnant.    Article  V, rection    8c of the General Appropriations     Act
      authorizes   employees to take sick leave

                    vhen sickneae,  injury.   or pregnency   and confine-
                    nent prevent the eurployee'r performance     of duty or
                    vhen a member of his hedieta      foxily   is sctually
                    -ill. (Emphaals ad&d).

       Stste   employees may use sick leave when they are unable to perform
       their duties beceuae of aicknesa.   injury.    or pregnancy end confia-t
       or uhen a member of the employee's    imediete     really is "ectually   ill."
       %a circumstsncea   under uhlc:h an eaployee      xay uae sick leave vhan A
       faaily   member ia Ill   are suggested     by the follwing       language      of
       section   8c:

                     For purposes        relating      to regular   sick leave,
                     iwediete      family :la deffned ss those individuals
                     releted    bv kinal&,,,      adoution or merriene uho are
                     living   in-the asx&ouaehold          or if not G the aaae
                     household ere totrllly         dependent upon the cqloyea
                     for personal       cart[ or semicea        on a continuing
                     bsais.     (IImpbesia edded).

                A state      eaployee    ny,   in our opinion,       take sick      leave     under
        section     8c to taks care of (UL imediate       fsxily    aesber uho is ao ill he
        cannot     take care of himself.          An eaployee'a      door    children,      toward
        vhoa he has legal            duties   of care,  vi11     ordinsriIy     reside     is his
        household.         See Iemily Cods: (12.04.      Other imediste         femily aembers
        residing      iax        household   uould probably     look to hiu for care and
i       assistance      if ao ill as to be uneble to take care of themselves.                   The
        "imadiate         family"    member not residing       in hia hcuaehold           =st     be
        totslly     dependent oo the ap:loyee       for persons1 care or services.             This
        requlrexent       ala0 atrougly au;ggests the lagislature'a         intent th a t     ltete
        employees be llloued to uao sick laeve to provide ure                     for ralativea
        too ill co take care of themselves.

i
             In our opfnion,     the requireuent   that the aployee'a     family aember
        be "actually     ill" does not eutoutiully       exclude conditiona    lttribut-
ii
        able to pregnancy,     childbirth,   or postpartum    recovery.  A Texas court
        her said     thet chlldbirth     is not "8 disease,      deformityor infury,"

if
i




 1.                                             p. 1537
.   1
        loaorableBob bullock
        ?I?. Jamer Iladletoe
        rosa s                          (311.3937)




        within    the prohibition   sgsin:~r practicing     medicine without    a license.
        &anti V. State,      289 S.W.Zd 244 (Tcx. Crio. App. 1956).          See V.T.C.S.
        art.     4495br   111.03(8) * 3.C17(a)      (prohlbltlce          l
                                                                     galnat~nllcen~cd
        practice     of eadlclne);      V.‘LC.S.    art.    45121 (regulation       of   lay
        mldvlves) .

               The General Approprlatl~ms Act provision,              however,   uses   the   term
         “111,” vhlch has been defined as follow:

                     affected    with   maa   ailment:            ladleposed:     not
                     bclng    in     good   becrlth:           ail%,        UUSUSlly
                     elck. . . .

         Webster’o beu International       Dlctloaa
                                           -+;             ;=“d Es         “,; y6;;    y”rz
         capitals  changed to lover case .
         techalcal  eeaulag.    sod the dictlooary         defleltlou       surely  can include
         ailments  and lndleposltloas      associated    with pregoaucy.          When a eymptom
         or compllcatlon     of pregnancy,        childbirth.       or postpartuo        recovery
         causes an employee’s      lemedlote    family member to be so 111 as to need
         the care and services      of anclther person,     the employee uy use his sick
         laave to take care of her.          Appllcatlono      to use sick leeve        for this
         purposa should be evaluated       cm a case-by-case        baals.

              Hr. Barableton’e second question       concerns vbether a mele employee
         vho taken unpaid “paternlt:y      leave” under sactlorm      0g and &a must
         exhaust  sick leave and vaca’tlon     leave before going on leave vlthout
         pay.    We have determined   in. anever to I4r. Bullock'e      flrat question
         that the aectlon gg pregnawy     leave is provided for pregnant employees
         and does not entitle   W.le eqployecs     to take paternity  1UVC.

                Article    V. section    8m of the General Appropriation6    Act allows
          agencies   to grant unpaid leave under stated     eoadltlone.   The follwing
          conditions    are particularly    relevant to your question:

                            (1)All   lccaaulated      wid     leave eetltlaents
                      ust    be ahauatd before           grant-       sach leavee,
                      vlth the addltiorsl      provlolon    tlmt sick leave ust
                      be exhausted      on2.y In those          cases    where  the
                      employee     Is eligible      to take sick leeve.           as
                      provided in Section 8.~. above.

                            . . . .

                           (4) Tbe‘ndmlnLstratlve     head of an agency may
                       grant exceptlow      to these   lleltatious for such
                       reasons   80 fnteragency   agreements or educetioaal
                       purpoee8.




                                                     p. l538
Ronorable   Bob Bullock
Hr. Jm5     Eambletou
?age 6                           (m-:L37)




Section  Em(l) providea       for exhaustion  of paid leave    entltleacnts
before receiving   unpaid leave:.   Sick leave need be 5xbauated only vhen
the employee seeks unpaid leave for reasons      that would entitle    him to
use sick luve    mder   section 8c.

      The agency head oay except an employee from the requirement            that
he exbaust unpaid leave “for such reason aa interagency           agreements or
educatloual    pufposea.”   General Approprlatlone     Act, mr        at art. V.
18m(4),    at 6207.    These stated  reasons   exemplify   purpose5    for vhlcb
the agency head may lllw        cxemptiona;  they do not list      the purposes
exhaustively.      See generalIE,   Ervln v. Steele,     228 S.Y.2d 882. 885
(Tex. Clv. App. - Dallas 1950. writ ref’d n.r.e.1.

       The term “paternity       leave” does not state the reasons for seeking
 leave speclflcally       enough to enable us to apply sectlos       8n(4) to your
 queatlon.     “Paternity    leave’ eight encompass laave ao the employee can
 provide    childcare    as the tu:clualve     caretaker. or to enable him to
 5pend extra tiw ultb his frafly.           Individual    requeeta for “paternity
 15ave” should be evaluated           os a case-by-came    bari5,  subject   to any
 lnterpretatlona      by the atam auditor.       See-~General Appropriations   Act.
 Act6 1983. 68th Leg., ch. 113!)5, art. V,xj.           at 6206.

        Pou also inquire about vatetalty        and pateralty     leave for adoptive
 parents.      The Geaeral Appropriations        Act provlalona      do not directly
 address     this    question.     We have     concluded    that     the   legislature
 authorized     pregnancy leave under section       8g to allou the employee tine
 to recover fron childbirth        and that thla provision       applies   only to the
 pregnant enployees.         Leave under section    88 la therefore      not available
 for an employee vho becomsa a parent by adoption.                Such persona could
 apply    for leave under rctlon          8n of article       0.     But see General
 Appropriation6      Act, Acts 1085, 69th Leg., ch.            , 6rt.f.             at 38
  (leave provlalon     for adopt:Lon of a child undertbtee          years of age).

       Comptroller  Bullock lmk whether
                                  s       the Pre@ancy Dlscrlmlnatioa Act
 contained   in Title   VIII of the Civil  Pigbra Act of 1964, 42 U.S.C.
 l2OOOe et. eeq. (1982). requires him to grant male employee6 llx weeka
 of pregmency leave.

         Section     2OOOr2 of Tftle     42 D.S.C.       provide6    as follmra:

               (a)     Employer pmctices

                     It shall   be ru~‘unlavfu1    erploywwrt       practice   for
               an    employer   -

                   (1) to tall Ior refuee to hire or to dfacharge
               any    lndlvldual,      or otherwise    to   diurlmfnate
               ageinst      any lmilvlduel       with respect     to    h%o
               compensation.      terns,  conditions, or privjlegee      of


                                            p.    1539
    ilooorable   Bob Sullock
.
    Mr. Jn55     Rubletoa
    Page 7                            (Jn-337)




                 employment,         becsurw    of such Indlvlduel’ a       rsce,
                 color,      religion,     acx or rmtlonal origin; or.      . . .

    The Pregnancy    Dlacrlmlnation     Act  of             1978    added    the      following
    deflnltlon to the 1964 Civil    Rights Act:

                      (k) The terms       ‘because     of sex’ or ‘on the
                 basis    of sex’ lncbude.        but are not llmlted          to.
                 because of or on cbe basis            of preguancy.       cblld-
                 blrtb,    or related    medical     condltlona;       and vomm
                 affected     by prego~ancy,       childbirth.       or   related
                 madlcal coudltlonr~ shall be treated              tha saw for
                 ~11 eaployment-rel.a.ted       purpoaas.    including    receipt
                 of benefits      under     fringe    benefit     programs.      as
                 other persons not so Affected but similar               In their
                  ability   or 1nabllLt.y to work. . . .

     42 U.S.C.     IZOOOe(K) (1982).         Congress     enacted      this   provision      to
     overrule   the Suprema Court decision             in General        Electric     Co. v.
     Gilbert.  429 U.S. 125 (1971ijl; sea il.&, Rep. Ilo. 948. 95th COng., 2d
     Seas., B.         Gilbert   held thiithe        exclualou    of pregnancy coverage
     from Callfornla’s       dlaablllty      insurance      plan    did not       constitute
     sex-baaed amployment dlacrirLnatlon          under Title VII of the 1964 Civil
     Rights   Act.    Mr. Bullock       raiser     the    applicability       of    tha    1978
     amendment to msle employees         vho become parents          - whether they are
     entitled  to the same leave ,r:lghts as preguaut employees.

            The Pregnsncy Dlacriaiamtlon         Act requires     tbat   voom disabled        due
      to prewmncyr      childbirth.      or other      related     wdlul      .condltlona      be
      provided the same benefits        as those provided other vorkera disabled               by
      other   medical   conditions      mmder any sick         leave    plan available          ln
      connection   with crploymant..        29 C.T.P. )1604.10(b)         (1984); R.P. Rep.
      lo.   948, B,       at 5.      lk regulation       or case suggests         tbet    a ule
      vorker should be entitled        KC, leave on account of blo uife’a              pregnancy
      on the aaaa terma that a faule              vorkar receives        laave for her wn
      pw-~.         The  ati   weeks     leave   allows    the  feule     vorker to recover
       from the dlaabilltlea        of her pregnancy           and delivery.           The 1978
       amendmnt doer not entltl~!         rle    employees     to leave to recover           from
       anotherperson’sdisability,.           Section 2OOOeB states          that

                   vomen    affected      by pregnancy,        cblldblrtb,      or
                   related    mdlcal     %ndltlons    ahall     be treated     the
                   Mme      for      011     employmsnt-related         purpoaee .
                   Including    receipt   of benefits    under frfoge benefit
                   prograan. aa othw        persona not so affectad.        . . .

      The House Report on the 19X1 amendmentstates that




                                                 p. 1540
    HonorableRob Rullock
    Hr. Jeer Uamblaton
    ?age 8                             (JR-337)




                the bill is Intended to be limited         to effects upon
                the voasn vho is       herself      preguant,   bearing  A
                child,  or h55 a related    aedlcal    condition.and not
                to include my effect       upon oue uoasn due to the
                prqaancy   of another.

    0.R.   Rep. No. 948 -.          at 5’.

           The Supreae Court has hc1.d that ‘a dependant health insurance plan
    violated     Title    VII because      it   Save less        coapletr   borpltallzatlon
    benefits    for pregaanciea      of employee’s        spouses than it did for ot!her
    apouasl disabilities.        ert         -N&a Shipbuilding         4 Dry Dock v. EEOC,
    462 U:S. 669. 77 L.Fd.2d S’T (1983).                  In the words of the Court of
    Appeals,    under the eaployee ‘5 plan,            “a aale eaployee receives            less
    coaalete      cwermte     of   saousal       dlsabllltles        than does a female
    empioyee.”Navp&t News~Sbipbulldlng                    6 Dry Dock v. EEOC, 667 F.2d
    448. 449 (4th Clr. 1982) quoted la Supreme Court opinion,                    462 U.S. at
    673).     The discrialnatlon       agslnat    feaale      spouses in prwiding        fringe
    baueflta      constitutes     sex     discrimination          agalnat   ule     employees
     prohibited    by Title VII.      4CQ U.S., at 684.

           The Newport Revs case          does    not   aupport   a clala      that  aale
     employees receive    paternity    leave.     The dlacrlalnatlon       found in that
’    case related     to the health     insurance     benefits   available     to a male
     amployee on account of his, vlfe’s           prega4ncy.    As the court pointed
     out, en eaployer need not ~?mvide dependent aedlcal               coverage at all.
     462 U.S.,     at 684. n. 25.        The state      of Texas proolder,        and can
     provide,   leave of ebsence 1roa vork only to lte employees.               It cannot
     provide   such beaafits    to ~nsployees’ 5pouae5 abo are not theaselves
     employed by the state.       Thu5. the state’s leave of abseace prwlalona
     include   no dependant benefits       anslagoua    to those at laaue in Newport
     w.       Tke 1964 Civil Eights       Act doea mot require       state agencies     to
     provide ala reaka l   paternity    leave” to aale, aaployeea.



                     Article    v,    section    8g of the 1983 Cenerel
                  Appropriatioaa     Act does not entitle     rule srployaea
                  to sit make’      paternity    leave follmiry    the blrtb
                  of s child.      The PreRasacy Dlecrialaatlon        Act of
                  1978. 42 U.S.C.        SZOOCe(k);   20OOr2 (1982).     does
                  mot require atata 6gcnclea        to grant ule   eaployees
                  aueb leave.

                      A ule    ewplqgee    say   take sick laave under
                  article   V, eectl:m    EC of the Appropriatloae      Act
                  when a Vader o:this Wdlate            faally.  as &fired
                  In tbat prwiaica.,     15 so disabled    due to pregnancy
                  or childbirth      5:s to need the care of another


                                              p.   1541
.   . .


    ,'    ..    EonorablrBob Bullock
                Mr. JIva samblocoe
                PABe 9                                (Jn-337)




                                 person.      Applicatlxls     for   sick    leave    for this
                                 purpose     should    be evaluated      on a case-by-case
                                 basis.     If a rale weks to take unpaid sick leave
                                 under article      0, scxtion    Sm of the Appropriations
                                 Act. be must first         exhaust    his vacation        leave.
                                 Whether he oust fil,st exhaust his sick leave is to
                                 be determined         in accordance       with    article      V,
                                 section     Sm(1).     The Appropriations       Act does not
                                 address     the quest!.on    of maternity      and paternity
                                 leave     for    emplo:wes     who become         parents      by
                                 adoption.




                                                                           JIM        MATTOX
                                                                           Attorney   General   of Texas

                 Ton     GREEN
                 First    Assistant        Attorney      General

               ’ DAVID B. RICSARDS
                 Executive Assfstant Attornag                    General

                 ROBEBTGRAY
                 Special Aeslstant            Attorney     General

                 RICK GILPIN
                 Chairman, Opinion            Comnlttee

                  Prepared       by Suean L. Garrison
                  AaairtantAttorneyGeneral

                  APFROVED:
                  OPfRIOIl
                         CCWlITTEE

                  Rick  Gilpin.    Chairman
                  Susan  Garrism
                  Jim noellinger
                  Jennifer   Riggs
                  Nancy    Sutton
                  Sarah Uoelk




                                                                     p. 1542
