## 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 Insurancemay deny extended sick leavewith pay for disabilities arising from pregnancy. Under your present policy, employee requests for extended sick leavewith pay on account of pregnancy-related disabilities are evaluated on the same case-by-casebasis as are requests for extended sick leave on account of other disabilities. The employee'sprior attendance and quality of job performance are considered in evaluating requests. The maximum amount of extended sick leave available to any individual depends upon the lengthof prior service. The Board proposes to adopt a policy denying extended sick leavewith pay in the case of any illness or disability caused or contributed to by pregnancy,miscarriage, abortion, childbirth, or recovery therefrom.
You first ask whether the proposed policy would violate articleV, S 7b of the AppropriationsAct. The State Board of Insurance,an entity financed by appropriated funds, is subject 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 leavewith pay may be takenwhen sickness, injury, or pregnancy and oonfinement prevent the employee'sperformance of duty or when a member of his immediate family is actually ill. An employeewho must be absent from duty because of illness shall notify his supervisoror cause him to be notified of that fact at th'e earliest practicable time.

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HonorableJoe Christie, Chairman - Page 2 (H-1036)

Exceptions to the amount of sick leave an employeemay takemay be authorized by the administrativehead or heads of anx agency of the State provided such exceptions are authorized on an individualbasis after a review of themerits of such particular case. A statement of any such authorized exceptions or the reasons for them shall be attached to the State agency's duplicate payrollvoucher for the payroll period affected by such authorized exceptions. GeneralAppropriationsAct, Acts 1975, 64th Leg., ch. 743, art.V, 9 7b, at 2849-50 (emphasisadded). The same provision appears in the AppropriationsAct for the 1977-79biennium. TheAct clearly provides that sick leavemay be taken for pregnancy and confinement. Attorney General Opinions H-251 (1974) ; M-1222 (1972). The Board's authority to spend appropriated funds for extended sick leavewith pay derives from the third quoted paragraph and must be exercised in conformity 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 shouldmake it available for all the disabilities forwhich accrued sick leave may be taken. The secondquoted paragraph indicates the purposes forwhich sick leavemay be taken. In our opinion, the third paragraph,which provides for exceptions as to amount of sick leave, incorporates the initial statement as to purposes. Paragraph three also requires that the agency authorize exceptions on an individual 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 theAppropriations Act, while the proposed policy of excludingpregnancy-related disabilities departs from the Legislature's intent.
you next ask whether the Boardmay deny extended sick leavewith pay to pregnant employeeswithout 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 continueyour present policy in order to comply with the sick leave provisions of theAppropriationsAct, we need not determinewhether adoption of the proposed policy would violate other provisions of state and federal law.

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HonorableJoe Christie, Chairman - Page 3 (H-1036)

You finally ask whether the Board may deny extended sick leave to an individualpregnant employee, based on themerits of particular cases,without violating articleV, sectionb of theAppropriationsAct, the United States Constitution, the federal civil rights statute, the Texas equal rights amendment, or the Texas equal employment laws. The AppropriationsAct expressly states that exceptions as to sick leave are to be "authorizedon an individualbasis after a review of themerits.

. . .'IGeneral 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 individualpregnant employee,based on the same standards 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-PalmoliveCo., 416 F.Zd 711, 718 (7thCir. 1969);Union Free School Dist. No. 6v. New York State Human RightsAppeal Bd 320N E 2d 859

. . 860 (N.Y.Ct. App. 1974);Attorney General'bpinionsH-421, h-251 (1,974)

. Whether the denial of extended sick leave in a particular case would violate any equal protection or equal employment lawwould depend upon the facts of that case. You do not ask about and we do.not address any constitutional 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) (holdingthat certainmandatory maternity leave regulationsviolated 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 leavewith pay in the case of pregnancy-relateddisabilities would violate articleV, Section 7b of the AppropriationsAct. Denial of extended sick leave to an individualpregnant employee, based on themerits of the particular case would not violate state and federal equal rights and equal employmentprovisions.

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HonorableJoe Christie, Chairman - Page 4 (H-1036)

Very truly yours, /!gLR& OHN L. HILL

Gefieral'of

Texas

Opinion Committee klw

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