                         THHE A-HTOWNHCY GRNERAL
                                 OF TEXAS
                                          AURTIN.    -a       78711

A-IT0EINEY     oQN-*I.
                                              August 5, 1977

             Honorable Joe Christie, Chairman                 Opinion No. H-1036
             State Board of Insurance
             1110 San Jacinto                                 Re: Validity of personnel
             Austin, Texas 78786                              policy denying extended sick
                                                              leave for pregnancy-related
                                                              disabilities.
             Dear Mr. Christie:

                  You ask whether the State Board of Insurance may deny
             extended sick leave with pay for disabilities arising from
             pregnancy. Under your present policy, employee requests for
             extended sick leave with pay on account of pregnancy-related
             disabilities are evaluated on the same case-by-case basis as
             are requests for extended sick leave on account of other dis-
             abilities. The employee's prior attendance and quality of
             job performance are considered in evaluating requests. The
             maximum amount of extended sick leave available to any indi-
             vidual depends upon the length of prior service. The Board
             proposes to adopt a policy denying extended sick leave with
             pay in the case of any illness or disability caused or con-
             tributed to by pregnancy, miscarriage, abortion, childbirth,
             or recovery therefrom.
                  You first ask whether the proposed policy would violate
             article V, S 7b of the Appropriations Act. The State Board of
             Insurance, an entity financed by appropriated funds, is sub-
             ject to this provision, which reads in part:
                          b. Employees of the State shall, without
                         deduction in salary, be entitled to sick
                         leave subject to the following conditions:
                          .   .   .   .

                              Sick leave with pay may be taken when
                         sickness, injury, or pregnancy and oonfine-
                         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 th'eearliest
                         practicable time.


                                                    P. 4271
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    Honorable Joe Christie, Chairman - Page 2   (H-1036)


                   Exceptions to the amount of sick leave
              an employee may take may be authorized by
              the administrative head or heads of anx
              agency of the State provided such excep-
              tions are authorized on an individual basis
              after a review of the merits of such par-
              ticular case. A statement of any such autho-
              rized exceptions or the reasons for them
              shall be attached to the State agency's dup-
              licate payroll voucher for the payroll period
              affected by such authorized exceptions.
    General Appropriations Act, Acts 1975, 64th Leg., ch. 743,
    art. V, 9 7b, at 2849-50 (emphasis added). The same provision
    appears in the Appropriations Act for the 1977-79 biennium.
    The Act clearly provides that sick leave may be taken for
    pregnancy and confinement. Attorney General Opinions H-251
    (1974); M-1222 (1972). The Board's authority to spend appro-
    priated funds for extended sick leave with pay derives from
    the third quoted paragraph and must be exercised in confor-
    mity with the legislative intent it expresses. See Attorney
    General Opinions H-684 (1975); H-456 (1974): H-116(1973).
    We believe that the Legislature intended that agencies granting
    extended sick leave should make it available for all the dis-
    abilities for which accrued sick leave may be taken. The
    second quoted paragraph indicates the purposes for which sick
    leave may be taken. In our opinion, the third paragraph, which
    provides for exceptions as to amount of sick leave, incorpo-
    rates the initial statement as to purposes. Paragraph three
    also requires that the agency authorize exceptions on an indi-
    vidual basis after reviewing the merits of individual,cases.
    We believe the Board's present policy of making case-by-case
    determinations for extended sick leave accurately reflects
    the intent of the Appropriations Act, while the proposed
    policy of excluding pregnancy-related disabilities departs
    from the Legislature's intent.
         you next ask whether the Board may deny extended sick
    leave with pay to pregnant employees without violating the
    United States Constitution, the federal civil rights and
    equal employment statutes, the Texas equal rights amendment,
    or the Texas equal employment law, article 6252-16, V.T.C.S.
    Since you must continue your present policy in order to com-
    ply with the sick leave provisions of the Appropriations Act,
    we need not determine whether adoption of the proposed policy
    would violate other provisions of state and federal law.




                              P.   4272
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    Honorable Joe Christie, Chairman - Page 3   (H-1036)


         You finally ask whether the Board may deny extended sick
    leave to an individual pregnant employee, based on the merits
    of particular cases, without violating article V, section b of
    the Appropriations Act, the United States Constitution, the
    federal civil rights statute, the Texas equal rights amend-
    ment, or the Texas equal employment laws.

         The Appropriations Act expressly states that exceptions
    as to sick leave are to be "authorized on an individual basis
    after a review of the merits. . . .'I General Appropriations
    Act, Acts 1975, 64th Leg., ch. 743, art. V, 9 7b. at 2850.
         We do not believe that the denial of extended sick leave
    to an individual pregnant employee, based on the same stan-
    dards applied to other disabled employees, would violate any
    of the other provisions about which you inquire. See General
    Electric Co. v. Gilbert, 97 S.Ct. 401 (1976). Gedmiq      v.
    Aiello, 417 U.S. 484 (1974); Bowe v. Colgate-Palmolive Co.,
    416 F.Zd 711, 718 (7th Cir. 1969); Union Free School Dist. No.
    6 v. New York State Human Rights Appeal Bd   320 N .E .2d 859
    860 (N.Y. Ct. App. 1974); Attorney General'bpinions H-421, h-251
    (1,974)
          . Whether the denial of extended sick leave in a par-
    ticular case would violate any equal protection or equal em-
    ployment law would depend upon the facts of that case.
         You do not ask about and we do.not address any constitu-
    tional issue relating to the conditions under which maternity
    leave may be required. See Cleveland Board of Education v.
    La Fleur, 414 U.S. 632 (1974) (holding that certain mandatory
    maternity leave regulations violated the due process clause);
    Attorney General Opinion H-251 (1974).
                            SUMMARY
              The adoption by the State Board of Insurance
              of a policy denying extended sick leave with
              pay in the case of pregnancy-related disabil-
              ities would violate article V, Section 7b of
              the Appropriations Act. Denial of extended
              sick leave to an individual pregnant employee,
              based on the merits of the particular case
              would not violate state and federal equal
              rights and equal employment provisions.




                                p. 4273
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     Honorable Joe Christie, Chairman - Page 4   (H-1036)


                                  Very truly yours,

                                 /!gLR&
                                   OHN L. HILL
                                           Gefieral'ofTexas




     Opinion Committee
     klw




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