        .!.-      .




                         The Attorney             General of Texas
                                            December      20,   1979
MARK WHITE
Attorney Genenl


                      HonorMe Norman V. Suerex                  Opinion No. MI+109
                      General Counsel
                      Texas Department of Public Safety         Rer Rights of state employees to
                      Box 4007                                  accrued sick leave when returning
                      Austin, Texas 78773                       to state setvice after military
                                                                leave.

                      Dear Mr. Suerex:

                            You ask several questions concerning the rights of a state employee
                      with respect to vacation and sick leave entitlement when he returns to state
                      employment following active military service        You inform us that en
                      employee requested military leave to attend a military educational course
                      and presented properly prepared orders &om his National Guard commander
                      for duty commencirg March 18, 1978, and endii         July 30, 1978. The
                      employee reported for wollc on August l,l678. Prior to commencing military
                      leave, the employee had accumulated 214 hours of sick leave. Pursuant to
                      department policy, he was paid a lump-sum payment for his eccnred
                      vacation time.

                            With regard to the above facts, you ask the following questions:

                                       L Taking into consideration the Veterans’
                                 Reemployment Rights Statute, 38 U.S.C.A., Sec.
                                 2021, et seq., and the applicable State statutes, should
                                 the Department under the above facts have credited
                                 the employee on reinstatement with the sick leave he
                                 had aCeNed on the date he left for his military
                                 leave?

                                       2. Would the fact that the accumulated
                                 vacation leave was paid under Department policy and
                                 not requested by the employee, even though accepted
                                 by the employee, make a9 difference?

                            Article 6252-44 V.T.CS., provides for the restoration to employment
                      of state employees following their discharge from military service. Section
                      3 of article 625He provides in part 89 follows




                                                   P. 344
Iionoreble Norman V. Susra     -   Pege TWO        (Mw-109)



           Any person who is restored to e posit&n. . . shell be considered en
           having been on fur-h       or leave of absence . . . and tisll be
           entitled to participation in retirement or other benefits to which
           employees of the State of Texes . . . are, or may be, entitled
           to. . . .

      The provisions of article 625He conform with the requirements of the federal
Vetera& Reemployment Rights Statute, 38 U.S.C. 202l, et sea., section (b) (1) of which
states in perk

           Any person who is restored to or employed in a positbn. . . shell be
           consldered es having been on furlough or Ieeve of absence during
           such person% period of training end service . . . [ends shell be
           entitled to partidpete in insurance or other benefits offered by the
           employer pvslent     to esteblished rules end practices relating to
           employees on furlough or leave of absents . . .

      If the employee, upon restoretbn, is to be considered es having been on leave of
etxience, it follows thet the sick leave accrued prior to that leave should be credited the
employee es it would have been to en employee on e norrmilitaly leave of absence. The
fact that accumulated annual leave we.9peid by the department would make no difference
with reqxct to his sick leave entitlement        The statutory mandate is clear that the
restored employee should be treated as having been on furlough or leave of absence. ‘l%e
epppriete     procedve would have been not to pay the employee for his accumulated
vacation et the time he began his military leeve, but in any event 36 U.S.C. section
2021(b)(3)requires that the mistake in handing the employee’s vacation entitlement not
constitute e termination where none was intended

      You esk severel eddtlonel questions which relate to the status of en employee while
he or she is on military leave longer then the ennual 15 days authorized by article 5765,
V.T.CS., for plaposes of accrued vacation end sick leave entitlement

      With one excqation later not4 both the relevant state end federal statutes speak
only in terms of restoretlon of en employee who hes returned to employment            In this
respect they are retrospective in netwe, so that whether or not the restored employee had
actually termhated employment to perform milltery service he is to be treated
restoration aa if he had been on furlough or leave of absence end is entitled to the ben 3=Its
allowed such en employee, including crediting of any unused vacation or sick leave.

       The exception to the restroqective nature of the federel statute is subsection (d) of
 36 U.S.C. section 2024 which povides that en employee other then e member of a Reserve
 component who is ordered to en initial period of active duty for training for et least three
 months shell upon request be granted e leave of ebsence “for the period required to
 perform active duty for trafning or inactive duty training.” Certain types of duty
 performed by 8 member of the Netlonal Guard 88 described in subsection (f) are included
 as duty for which the employer may not treat the employee es terminated, but must grant
 the requested leave of absence, end




                                        p.   345
Honoreble Norman V. Susres      -   Page Three     (s9+109 )



            arch en employee shall he permitted to return to arch employee’s
            posftbn with atch senbrity, status, pay, and vacstbn as arch
            employee would have had if uch employee had not heen ahsent for
            mrch pvposee.

38 us.c.   s 202ud).

       You inquire as to the effect of carry-over provisions of state statutes on time
carried forwerd through a leave of absence from one fiscal year to the next. Such leave
would he carried over in the same manner ss it would he for any other employee. While it
is clearly the htent of the relevant statutes to protect the return* employee from bss
of ground in his employment, it is not their intent to plsce him in 8 better posltbn then
other employees. See Lipam v. Boheck Cotp., 546 P.2d 487 (2d Cir. 1976); see also
Fishsold v. Sullivan Edock dc Repair Carp,. 3 28 U.S. 275 (1946).

       You ssk, finally, whether en employee eccrues either vacation or sick leave while on
military leave. The U.S. Supreme Court has stated with regard to veterans’ reemployment
rights that vacation time should eccrue during military service only where it appears that
such time wss “intended to accrue eutometicsllv as e function of continued sssocistbn
with the [employed ,s end not where such hen&s are “intended as e form of short-term
compensation for wok performed” Foster v. Drevo Corporetbn, 420 U.S. 92, LOO        (1975).
In this r=eN    Attorney GeneraI Opfnion Ii-94l U977) has held that vecetbn end sick leave
benefits “kc forms of compensstbn and generally e&rue only while an employee is on the
state peyrdl,” and not psyahle to en employee on militery leave of absence.

                                      SUMMARY

            Under article ~6252-48, V.T.CS., end 38 USC. 202l, .~-+p   et s     en
            employee who is restored to state employment followmg m ltmy
            service is generally to he considered as having been on furlough or
            leave of absence! and as such, is entitled to all benefits to which en
            employee returmng from a non-military leave of absence would he
            entitled, including the credit& of sick leave 8CcNed prior to such
            militery service.




                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney Genersl

TED L. HARTLEY
Executive Assistant Attorney General




                                              p.   346
Honorable Norman V. Suarez     -   Pege POW (~-109)



Prepared by Diane Ritzen Cox
Assist&   Attorney Geneml

APPROVBD:
OPINIONCOMhlMTEE

C. Robert Heath, Chairmen
David B. Brooks
Diane Ritzen Cox
Bob Gemmege
Susan Garrison
Rick Gilpin
Bruce Youqblood
Lonny Zwiener




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