August 7, 1990

Mr. Ron Lindsey. Commissioner Texas Department ofHuman Services P. 0. Box 149030 Austin, Texas 78714-9030

DearMr. Lindsey: Opinion No. JM-1203

Re: Sick leave for adopting parents (RQ-1829)

you askwhether the employee leave provisions in the General Appropriations Act require or authorize a state agency togrant sick leave toan employee adopting a child. The appropriations act contains a provision setting out circumstances under which sick leavewith paymay be taken:

Sick leavewith pay may be taken when sickness, injury, orpregnancy and confinement prevent the employee's performance ofduty or when the employee is needed to care and assist amember of his immediate family who isactually ~i.11.For purposes relating to regular sick leave, immediate family is defined as those individuals related by kinship, adoption, marriage or foster children who are socertified by the Department of Human Services who are living in the samehousehold or ifnot in the same household are totally dependent upon the employee forpersonal care or services on a continuing basis.

Acts 1989, 71st Leg., ch. 1263, art.V, 5 8(3), at 5764. That provision authorizes use of sick leave for medical conditions related topregnancy and childbirth. Attorney General Opinion JM-337 (1985). Itdoes not authorize use of sick leave foradoption ofachild. Id.

You ask, however, whether the following appropriations actprovision mandates orauthorizes leave for adoptive parents:

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Pregnancies

. . .shall be treated as any other temporary disability. Each case shall be evaluated on its ownmerit.

Acts 1989, 71st Leg., ch. 1263, art.V, 5 8(6), at 5766. That language isenigmatic since adoption ofa child would not normally be considered adisability.

The language inquestion priations act adopted in 1985. first appeared inthe approGeneral Appropriations Act, Acts 1985, 69th Leg., ch. 980, art.V, § 8f, atbudget 483. Aversion of the appropriations act for that year proposed by the Rouse Committee on Appropriations contained more specific language regarding leave foradoptive parents:

Amale or a female employee who adopts a child younger than three years of age is entitled touse his orher accrued sick leave for the purpose of establishing a family environment for the child and for bonding that relationship during any period not to exceed six weeks and beginning within a one-month period after the date that the child isplaced in thehome of the adoptive parent.

House Committee onAppropriations, C.S.H.B. 20, art.V, 5 8n (April 15, 1985). The Conference Committee deleted that language and added theprovision stating that pregnancies or adoption of achild under three years should be treated asany other temporary disability.of age Conference Comm. Report, Ii-B.20, 69th Leg. (1985).

The only statement we have found history of the inthe legislative 1985 appropriations act in regard to that provision was part of aresolution adopted to allow the House to act upon certain matters in the Conference Committee Report:

This change would bring state regulations into conformance with federal law which requires maternity tobe treated as any other temporary disability.

H.C.R..257, 69th Leg. (1985). The relevant federal law, 42 U.S.C. 5 2000e(k), provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes
. . .as other persons not soaffected but similar intheir ability or inability towork." See also 29C.F.R. § 1604.10(b). In other words, the federal law requires employers to treat pregnancy and related medical conditions

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A
the same as other medical disabilities. & 29C.F.R. Pt.

1604,Appendix -Questions and Answers on the Pregnancy Discrimination Act, Pub. L. 95-555, 92 Stat. 2076 (1978). Itdoes not require leave for newparents who did not give birth.1 Because the language in the appropriations act regarding adoption was not necessary to achieve the stated purpose of bringing the state into compliance with the federal law, the federal law provides no guidance in interpreting that language.

Even though the language regarding adoption seems misplaced in a provision addressed to treatment of disabilities, the legislature obviously intended that the language about adoption mean something. We conclude therefore, that a state employee who adopts achild under three years of age is entitled to use sick leave. The difficult question ishowmuch leave anadoptive parent is entitled to. ridiculous. The plain language of the rider approaches the

It states that adoption is to be treated as "any other temporary disability" and then directs the agency to evaluate each case on its ownmerits. While there might be little difficulty in evaluating an actual temporary disability "on its ownmerits," it ismanifestly impossible to apply temporary disability standards to something which F- isnot in fact a disability. Inour opinion, the soundest

approach isto disregard the Vemporary disability" language and apply the standard that each case should be evaluated on itsmerits.

The specific amount of sick leave permitted should be determined by the head of the specific agency, but we believe that a standard of reasonableness must be applied in each case. Ordinarily, it would not seem reasonable to grant to adoptive parents a greater amount of sick leave than is allowed by that agency to natural mothers for pregnancy and childbirth. Until the legislature has provided more guidance inthis matter, the amount of leave granted will ofnecessity vary, based on the individual case and on the liberality of the policies of a particular agency.

You also ask whether adoptive or natural fathers may use sick leave inorder to forman emotional bond with a child. In regard to leave for adoptive fathers, the

1. Pending federal legislation would require some employers to provide unpaid leave for all new parents. H.R. 770, 1Olst Cong., 2dSess., 136Cong. Rec. 2218 (1990) (passed in the House).

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appropriations act rider providing for adoptive leave applies to an employee of either sexwho adopts a child. By contrast, nothing in the appropriations act however, authorizes natural parents touse sick leave to care for a healthy newborn<2 Natural mothers, of course, may use sick leave for their recovery.

You then ask whether allowing disability leave for pregnancy and childbirth tonatural mothers but not natural fathers is inconflict with Title 42, section 2000e-2 of the United States Code, which prohibits discrimination in the conditions of employment on thebasis of sex. The United States Supreme Court has made clear that it does not.

.- California Fed Sa

.&Loan Ass'n. v. Guerra, (1987); see also Rzcord v. Mill NckMa 479U.S. 272

for the **Deaf,** 611 F. Supp. 905 (E.Z.N.Y.nor Lutheran School 1985) (actdoes not protect people wishing to take child-rearing leave as opposed to women wishing to take pregnancy leave). See aenerally Strimling, The Constitutionalitv of State Laws Providina Emnlovment Leave 

### f Preanancv: Rethinkinq Geduldia after Cal Fed, 77Cal. "LfRev. 171 (1989).

You also ask about chapter 106 of the Civil Practices andRemedies Code, which prohibits the state from denying a benefit because of sex.3 We think that aTexas court would adopt the analysis of theUnited States Supreme Court and conclude that allowing disability leave forpregnancy and childbirth does not constitute denial of abenefit to men because of their sex.4 m Geduldia v.Aiello, 417U.S. 484

2. Aparent may use sick leave to care for a sick child of any age. Acts 1989, 71st Leg., ch. 1263, art. V, 58(3), at 5764.

3. The Texas act, unlike the federal act, does not explicitly prohibit discrimination based onpregnancy.

4. The difference intreatment here isbetween natural parents and adoptive parents. That isadistinction based not ongender, but onparental status. You donot ask, and
we do not consider, whether such disparate treatment violates the equal protection clause. See aenerallv Geduldia v. Aiello, 417U.S. 484 (1974) (pregnancy-based classification isnot sexbased classification for purposes of equal protection clause because it divides potential beneficiaries into two groups: pregnant women and non-pregnant women). Nor dowe address whether the Texas Equal Rights Amendment, Tex. Const. art. I, 5 3a, requires (Footnote Continued)

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(1974);General Elec. co.v. Gilbert, 429U.S. 125, 135-36 (1976) (pregnancybased discrimination isnot discrimination based on sex).

SUMMARY

An appropriations actprovision stating that pregnancy and adoption of achild under three years of age are tobe treated as any other disability means that a state employee who adopts achild under three years of a9-e is tobe treated as ifhe or shehad undergone pregnancy and childbirth. Therefore, an employee who adopts achild under three years of agemay use the amount of sick leave that would be necessary to recover from pregnancy and childbirth.

JIM MA-T T 0X Attorney General ofTexas

P MARYKELLER

FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUUGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Rick Gilpin Assistant Attorney General

(Footnote Continued) that some type of leave be made available to natural fathers.

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