                               The Attorney’ General of Texas
                                              November7. 1984
JIM MATTOX
AttorneyGeneral


Suprulm ceull sulldlq
                              Emorable Lloyd Crlmt                 Opinion No. JH-227
P. 0. Box 1254S               Chairmsn
*u*un, TX. 7S711*254S         Committeeon Labor cmd Employment     lk: Whether an employeeof a
512147,250l                       Relations                        state agency may be terminated
Td4X 91wS7c13S7
                              Texan Eouaa of Repn!eentatives       while collacting workmen’s
TeIecopier5121475mSS
                              P. 0. Box 2910                       compensationdue to an on-the-
                              Austin, Texas 78769                  job injury
714 Jackson.Suiie 7&l
D4llrr. TX. 752024506         Dear Representative
                                                Criss:
214/742aS44

                                   You have asked *whetherthe Texas Departmentof Mental Health and
4S24AIbeflS Ave.. Suit. 190   Mental Retardation[hereinafterMHMR] may terminate non-probationary
El Pma TX. 7K-052793          full-timeemployeeswho have been on leave without pay for more than
915632aS4                     six weeks after having filed a claim and been warded benefits under
                              the vorker’s compensationlaws. You advise that MHMR has an across-
   1 Texas. s&e 700
                              the-boardpolicy vhich terminatessutomaticallyany employee on leave
HousIcm.TX. 77OD2-3111        without pay for more than six veeks unless an extensionof that laave
713222-5886                   is approvedby superriaorypersonnel.

                                   It is our opinion that a state agency may not terminate,in the
so9 Broadwsy, suit* 312
                              mstmer described,its  employeeswho are on an unpaid leave of absence
Lubeoch TX. 794a1-3178
W&747-5238                    and receiving vorkw’s   compensationbenefits. We believe that the
                              state Is requiredto have a legitimatejob-relatedreason,other than
                              a mere leave of absence,before it may terminatean employeewho is on
4309N. Tenth. Suite B
                              leave because of a j’obrelated injury.
McAllm. TX. 7-1.lSS5
5wSm4S47
                                  State law prohibitsthe terminationof employeesvho have filed
                              claims under the worker’s compensationstatutesas follow:
200 MaIn Plsm. suits u)o
.sm Antonlo. lx. 7s2a.2797                 No pez’som
                                                    may discharge or in any other manner
512/2254191
                                        discrfiinatc sgainst any employee because the
                                        employeebar,in good faith filed a claim . . . or
                                        caused to be instituted, in good faith, any
                                        proceedingunder the Texas Workman’s Compensation
                                        Act. . . .

                              V.T.C.S. art. 83011:.Il. This provision is applicable to state
                              employees. V.T.C.!;.art. 8309g, ClS(a). A state employee may elect
                              to use his accrued sick leave vith tbe state before receivingweekly
                              compensationpaymclts but is not required to do so. V.T.C.S. art.
                              83090. 112. In these statutes, the state has exercisedits plenary




                                                         p. 1019
llonorable
         Lloyd Criaa - Pagu 2   (JU-227)




legislative paver to define public policy regarding the protection
afforded to injured public employees vho file vorker's compensation
claims. Any administrativeregulationwhich unreasonablyburdens this
policy cannot stand.

    We believe that the protection provided by this legislative
mandate would be of little use to a state agency employee if he could
be terminated after having filed a claim and been avarded benefits
vhile on leave from his cployment folloviagwork-related injuries
incurredwhile pursuing rho interestsof the state.    The termination
of such an injured employeewould appear to be based on his having
filed a good faith vorke::"scompensationclaim vhich resulted in
payments during his temparary    incapacity. It makes no sense to
prohibit an agency from disnissingemployeesfor filing a claim but to
permit an agency automaticrLl.lyto terminateemployeeswho have taken
leave without pay, because of such injury.

     We do not believe that the departmentof MRMR can validly adopt a
uniform limit of six veeks leave without pay after which employeeson
worker's compensation may be subject to termination. An employee
should not be put to the choice of either retaininghis employmentby
returningto work, perhaps prematurely,before the end of the six-week
period or initiating a wxrkar's compensationclaim which may pay
benefits for an extended pw:lod of tima but would result in the loss
of his job.

     The cases decided ur,derthe anti-discriminatory     provision of
article 8307~ have held essentiallythat an employee on a worker's
compensationleave may be terminatedonly for reasonsunrelatedto the
vorker's compensatiouclais. E-Tex Dairy Queen, Inc. v. Adair, 566
S.W.Zd 37 (Tex. Civ. App. - Beaumont 1978. no vrlt) (finding that
discharge vas based both on filing claim and past misconduct
sufficientto support verdict for employees);Sehraderv. Artco Bell
Corp.. 579 S.W.2d 534 (Tex. Civ. App. - Tyler 1979.writ ref'd n.r.e.)
(more than scintilla of wldmce      sufficient to support finding of
dlscrimi=tory discharge fcr filing a claim);Murray Corp. of Maryland
v. Broker, 600 S.W.2d 897 (Tex. Civ. App. ~- Tyler 1980. writ rcf'd
n.t.ke         than  scintillaof evidencesufficient to support finding
of discrlminetoty..dischrgc   for filing a claim); Deford Lumber Co.,
Inc. v. Rays, 615 S.U.2d :235 (Tex. App. - Dallas 1981. no vrit);
McGarry, "RetaliatoryTermi.r.ation in IJorhn's CompensationCases," 44
Tex. B. J. 617 (1981).

     In Santex. Inc. v. Cuaningham.618 S.U.2d 557 (Tex. Civ. App. -
Waco 1981, no writ). the court upheld a judgmentsgainst an employer
In a suit by an employee claiming wrongful discharge under arti;le
8307~ based upon jury findingsthat he bad been fired both for filing
a worker’s    compensation claim and failure to perform vork
satisfactorily.The court held that




                            p. 1020
BomorableLloyd Criaa -   Page   3 (m-227)




          an employer may oo’tuse the filing of a Worker’s
          Cmpeosation claim as a reason to discharge or
          othervisediscriminateagalostan cpployeeeven if
          there are other reasons.

did.
-    at 559.

     Ue believe that tha l~cgialatlve policy of fair play evident in
article 8307~ requires th.atan employet who is Injured while in
pursuit of the state’t interest and who is on an involuntaryleave of
absencebe entitled to have the state show, based on the nature of the
employee’sduties and the circumstancespertaloiogto the leave of
absence,a legitimateindependentreason for the dismissal. This does
not mean that the department is required to hold a job open for an
iodefinlteperiod of time. The departmentmay decide, on a case-by-
case basis, that a partic:u.lar  position must be filled because of
legitimate business concanrs without violating state law; never-
theless, such a possibili,tydoes not justify an across-the-board
terminationpolicy. We do not believe that a per se rule permitting
terminationafter a ctrtain period of leavewithoutpay is appropriate
when that leave is a result of an on-the-jobinjury. We believe that
any other conclusionwould pose potentialproblemswith respect to the
employee’srights undtr the federal statuteprohibitingdiscrimination
against the handicapped,2.9U.S.C. 1794 (1982),and might implicate
the amployeesliberty inter,e:stasecuredby the FourteenthAmendment to
the United States Constitut:ion.

                                SUMMARY

             The Texas Department of Mental Health and
          Mental Retardationmay not automatically  terminate
          non-probationary employees who are collecting
          worker’s compeoru~tionbenefits and who are on
          leave of abeoce without pay for more than six
          weeks. The mara fact thtt an employeeis in such
          status for a fixed period of time is not per se an
          adequate basis for termfnatiogsuch an employee,
          and in the abswrce bf a legitimateindependent
          reason, such terminationviolatesthe state policy
          expressedin article 8307~. section 1. V.T.C.S.




                                            JIM    MATTOX
                                            AttorneyGeneral of Texas
         Lloyd Crias
lloaorable             -   Page   4   (.~227)




TC% GREEN
Pirst AssistantAttorney     General

DAVID R. RICRARDS
ExecutiveAssistantAttorney        Gee,eral

RICK GILPIN
Ch4irm40.OpinionCopnittce

Preparedby Colin J. Carl
AssistantAttorueyGaneral

APPROVED:
OPINION COWfIlTEE

Rick Gllpin. Chairmsn
Colin Carl
