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

November7. 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: Whetheran employeeof a state agencymay be terminated while collacting workmen’s compensation

due to an on-thejob injury

You have asked *whether the Texas Departmentof Mental Health and Mental Retardation [hereinafter **MHMR]** may terminatenon-probationary full-timeemployees 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

policyvhich terminatessutomatically any employeeon leave without pay for more than six veeks unless an extension **of** that laave is approved

by superriaory

personnel.

It is our opinionthat a state agency may not terminate,in the mstmer described,

its employees

who are on an unpaid leave of absence and receiving **vorkw ’**  **s** compensationbenefits. We believe that the state Is requiredto have a legitimatejob-related reason,other than a mere leave of absence, before it may terminate an employee

who is on leavebecause of a j’ob related injury.

State law prohibitsthe termination of employees

vho have filed claimsunder the worker’scompensation statutes

as follow:

No pez’som

ay dischargeor 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 employeemay elect to use his accrued sick leave vith tbe state before receiving weekly compensation

paymcltsbut is not required **to** do so. V.T.C.S. art. 83090. 112. In these statutes, the state has exercisedits plenary

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

legislativepaver to define public policy regarding **the protection**  afforded to injured public employeesvho file vorker's compensation claims. Any administrative regulation

which unreasonably burdens this policy cannot stand.

We believe that the protection provided by this legislative mandatewould be of little use to a state agency employee if he could be terminatedafter 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::"s compensationclaim vhich resulted in payments during his **temparary** incapacity. It makes no sense to prohibitan agency from disnissing employees

for filinga claim but to permit **an** agency automaticrLl.ly to terminateemployees who have taken leavewithout pay, because of such injury.

We do not believe that the department of MRMR **can** validly adopt a uniform limit of six **veeks** leavewithout pay after which employeeson worker's compensationmay be subject to termination. An employee should not be put to the choice of either retaining his employment

by returningto work, perhapsprematurely, before the end of the six-week period or initiating a wxrkar's compensationclaim which may pay benefits for an extendedpw: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 compensation

leavemay be terminated only for reasons

unrelatedto 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); 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 evidencesufficient to supportfinding 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 judgmentsgainst an employer In a suit by an employee claiming wrongful dischargeunder arti;le 8307~ based upon jury findingsthat he bad been firedboth for filing a **worker ’**  **s** compensation claim and failure to perform vork satisfactorily.The courtheld that

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

**an** employermay 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 interestand who is on an involuntary leave of absencebe entitled**to** have the state show,based on the nature of the employee’sduties and the circumstances pertaloiogto 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 leavewithoutpay 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

rightsundtr the federal statute prohibiting

discrimination against the handicapped,2.9 U.S.C. 1794 (1982),and might implicate the amployeesliberty inter,e:sta secured

by the Fourteenth

Amendment to the United StatesConstitut: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 employeeis 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** legitimateindependent reason, such termination violatesthe statepolicy expressedin article 8307~. **section** 1. V.T.C.S.

JIM MATTOX Attorney

Generalof Texaslloaorable Lloyd **Crias** - **Page** 4 (.~227)

TC% GREEN **Pirst** Assistant **Attorney General** 

DAVID R. RICRARDS Executive

Assistant

**Attorney Gee,eral** 
RICK GILPIN Ch4irm40.

OpinionCopnittce Prepared

by Colin J. Carl AssistantAttoruey Ganeral

APPROVED: OPINION COWfIlTEE
Rick Gllpin.Chairmsn Colin Carl