JIM MATTOX 

Attorney General 

Suprulm ceull sulldlq 

P. 0. Box 1254S 

*u*un, TX. 7S711*254S 

512147,250l 

Td4X 91wS7c13S7 

TeIecopier 5121475mSS 

714 Jackson. Suiie 7&l 

D4llrr. TX. 752024506 

214/742aS44 

4S24 AIbeflS Ave.. Suit. 190 

El Pma TX. 7K-052793 

915632aS4 

1 Texas. s&e 700 

HousIcm. TX. 77OD2-3111 

713222-5886 

so9 Broadwsy, suit* 312 

Lubeoch TX. 794a1-3178 

W&747-5238 

4309 N. Tenth. Suite B 

McAllm. TX. 7-1.lSS5 

5wSm4S47 

200 MaIn Plsm. suits u)o 

.sm Antonlo. lx. 7s2a.2797 

512/2254191 

The Attorney’ General of Texas 

November 7. 1984 

Emorable Lloyd Crlmt 

Chairmsn 

Committee on Labor cmd Employment 

Relations 

Texan Eouaa of Repn!eentatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative Criss: 

Opinion No. JH-227 

lk: Whether an employee of a 

state agency may be terminated 

while collacting workmen’s 

compensation due to an on-thejob injury 

You have asked *whether the Texas Department of Mental Health and 

Mental Retardation [hereinafter MHMR] may terminate non-probationary 

full-time employees who have been on leave without pay for more than 

six weeks after having filed a claim and been warded benefits under 

the vorker’s compensation laws. You advise that MHMR has an acrossthe-board policy vhich terminates sutomatically any employee on leave 

without pay for more than six veeks unless an extension of that laave 

is approved by superriaory personnel. 

It is our opinion that a state agency may not terminate, in the 

mstmer described, its employees who are on an unpaid leave of absence 

and receiving vorkw’s compensation benefits. We believe that the 

state Is required to have a legitimate job-related reason, other than 

a mere leave of absence, before it may terminate an employee who is on 

leave because of a j’ob related injury. 

State law prohibits the termination of employees vho have filed 

claims under the worker’s compensation statutes as follow: 

No pez’somay discharge or in any other manner 

discrfiinatc sgainst any employee because the 

employee bar, in good faith filed a claim . . . or 

caused to be instituted, in good faith, any 

proceeding under 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 receiving weekly 

compensation paymclts but is not required to do so. V.T.C.S. art. 

83090. 112. In these statutes, the state has exercised its 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 administrative regulation which unreasonably burdens 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 folloviag work-related injuries 

incurred while pursuing rho interests of the state. The termination 

of such an injured employee would appear to be based on his having 

filed a good faith vorke::"s compensation claim vhich resulted in 

payments during his temparary incapacity. It makes no sense to 

prohibit an agency from disnissing employees for filing a claim but to 

permit an agency automaticrLl.ly to terminate employees who have taken 

leave without pay, because of such injury. 

We do not believe that the department of MRMR can validly adopt a 

uniform limit of six veeks leave without pay after which employees on 

worker's compensation may be subject to termination. An employee 

should not be put to the choice of either retaining his employment by 

returning to work, perhaps prematurely, before the end of the six-week 

period or initiating a wxrkar's compensation claim which may pay 

benefits for an extended pw:lod of tima but would result in the loss 

of his job. 

The cases decided ur,der the anti-discriminatory provision of 

article 8307~ have held essentially that an employee on a worker's 

compensation leave may be terminated only for reasons unrelated to the 

vorker's compensatiou clais. 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 

sufficient to support verdict for employees); Sehrader v. 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 scintilla of evidence sufficient 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, "Retaliatory Termi.r.ation in IJorhn's Compensation Cases," 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 judgment sgainst an employer 

In a suit by an employee claiming wrongful discharge under arti;le 

8307~ based upon jury findings that he bad been fired both for filing 

a worker’s compensation claim and failure to perform vork 

satisfactorily. The court held that 

p. 1020 
Bomorable Lloyd Criaa - Page 3 (m-227) 

an employer may oo’t use the filing of a Worker’s 

Cmpeosation claim as a reason to discharge or 

othervise discriminate agalost an cpployee even if 

there are other reasons. 

did. at 559. - 

Ue believe that tha l~cgialatlve policy of fair play evident in 

article 8307~ requires th.at an employet who is Injured while in 

pursuit of the state’t interest and who is on an involuntary leave of 

absence be entitled to have the state show, based on the nature of the 

employee’s duties and the circumstances pertaloiog to the leave of 

absence, a legitimate independent reason for the dismissal. This does 

not mean that the department is required to hold a job open for an 

iodefinlte period of time. The department may decide, on a case-bycase basis, that a partic:u.lar position must be filled because of 

legitimate business concanrs without violating state law; nevertheless, such a possibili,ty does not justify an across-the-board 

termination policy. We do not believe that a per se rule permitting 

termination after a ctrtain period of leave without pay is appropriate 

when that leave is a result of an on-the-job injury. We believe that 

any other conclusion would pose potential problems with respect to the 

employee’s rights undtr the federal statute prohibiting discrimination 

against the handicapped, 2.9 U.S.C. 1794 (1982), and might implicate 

the amployees liberty inter,e:sta secured by the Fourteenth Amendment to 

the United States Constitut:ion. 

SUMMARY 

The Texas Department of Mental Health and 

Mental Retardation may not automatically terminate 

non-probationary employees who are collecting 

worker’s compeoru~tion benefits and who are on 

leave of abeoce without pay for more than six 

weeks. The mara fact thtt an employee is in such 

status for a fixed period of time is not per se an 

adequate basis for termfnatiog such an employee, 

and in the abswrce bf a legitimate independent 

reason, such termination violates the state policy 

expressed in article 8307~. section 1. V.T.C.S. 

JIM MATTOX 

Attorney General of Texas 
lloaorable Lloyd Crias - Page 4 (.~227) 

TC% GREEN 

Pirst Assistant Attorney General 

DAVID R. RICRARDS 

Executive Assistant Attorney Gee,eral 

RICK GILPIN 

Ch4irm40. Opinion Copnittce 

Prepared by Colin J. Carl 

Assistant Attoruey Ganeral 

APPROVED: 

OPINION COWfIlTEE 

Rick Gllpin. Chairmsn 

Colin Carl