August 7, 1990 

Mr. Ron Lindsey. 

Commissioner 

Texas Department of Human 

Services 

P. 0. Box 149030 

Austin, Texas 78714-9030 

Dear Mr. Lindsey: 

Opinion No. JM-1203 

Re: Sick leave for adopting 

parents (RQ-1829) 

you ask whether the employee leave provisions in the 

General Appropriations Act require or authorize a state 

agency to grant sick leave to an employee adopting a child. 

The appropriations act contains a provision setting out 

circumstances under which sick leave with pay may be taken: 

Sick leave with pay may be taken when sickness, injury, or pregnancy and confinement 

prevent the employee's performance of duty or 

when the employee is needed to care and 

assist a member of his immediate family who 

is actually ~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 so certified by the Department of Human Services who are living in 

the same household or if not in the same 

household are totally dependent upon the 

employee for personal 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 to pregnancy and childbirth. Attorney 

General Opinion JM-337 (1985). It does not authorize use of 

sick leave for adoption of a child. Id. 

You ask, however, whether the following appropriations 

act provision mandates or authorizes leave for adoptive 

parents: 

P. 6370 
Mr. Ron Lindsey - Page 2 (JM-1203) 

Pregnancies . . . shall be treated as any 

other temporary disability. Each case shall 

be evaluated on its own merit. 

Acts 1989, 71st Leg., ch. 1263, art. V, 5 8(6), at 5766. 

That language is enigmatic since adoption of a child would 

not normally be considered a disability. 

The language in question 

priations act adopted in 1985. 

first appeared in the approGeneral Appropriations Act, 

Acts 1985, 69th Leg., ch. 980, art. V, § 8f, at budget 483. 

A version of the appropriations act for that year proposed 

by the Rouse Committee on Appropriations contained more 

specific language regarding leave for adoptive parents: 

A male or a female employee who adopts a 

child younger than three years of age is 

entitled to use his or her 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 is placed in the home of the adoptive 

parent. 

House Committee on Appropriations, C.S.H.B. 20, art. V, 5 8n 

(April 15, 1985). The Conference Committee deleted that 

language and added the provision stating that pregnancies or 

adoption of a child under three years should be 

treated as any other temporary disability. 

of age 

Conference Comm. 

Report, Ii-B. 20, 69th Leg. (1985). 

The only statement we have found 

history of the 

in the legislative 

1985 appropriations act in regard to that 

provision was part of a resolution 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 to be 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 so affected but similar 

in their ability or inability to work." See also 29 C.F.R. 

§ 1604.10(b). In other words, the federal law requires 

employers to treat pregnancy and related medical conditions 

P. 6371 
Mr. Ron Lindsey - Page 3 (JM-1203) 

A 

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

1604, Appendix - Questions and Answers on the Pregnancy 

Discrimination Act, Pub. L. 95-555, 92 Stat. 2076 (1978). 

It does not require leave for new parents 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 a child under 

three years of age is entitled to use sick leave. The 

difficult question is how much leave an adoptive 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 own merits. While there might 

be little difficulty in evaluating an actual temporary 

disability "on its own merits," it is manifestly impossible 

to apply temporary disability standards to something which 

F- is not in fact a disability. In our opinion, the soundest 

approach is to disregard the Vemporary disability" language 

and apply the standard that each case should be evaluated on 

its merits. 

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 in this matter, the amount of leave 

granted will of necessity 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 in order to form an 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., 2d Sess., 136 Cong. Rec. 2218 (1990) 

(passed in the House). 

P. 6372 
Mr. Ron Lindsey - Page 4 (JM-1203) 

appropriations act rider providing for adoptive leave 

applies to an employee of either sex who adopts a child. 

By contrast, nothing in the appropriations act however, 

authorizes natural parents to use 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 to natural mothers but not natural 

fathers is in conflict with Title 42, section 2000e-2 of the 

United States Code, which prohibits discrimination in the 

conditions of employment on the basis 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 N ck Ma 

479 U.S. 272 

for the Deaf, 611 F. Supp. 905 (E.Z.N.Y. 

nor Lutheran School 

1985) (act does 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, 77 Cal. "Lf Rev. 171 (1989). 

You also ask about chapter 106 of the Civil Practices 

and Remedies Code, which prohibits the state from denying a 

benefit because of sex.3 We think that a Texas court would 

adopt the analysis of the United States Supreme Court and 

conclude that allowing disability leave for pregnancy and 

childbirth does not constitute denial of a benefit to men 

because of their sex.4 m Geduldia v. Aiello, 417 U.S. 484 

2. A parent may use sick leave to care for a sick 

child of any age. Acts 1989, 71st Leg., ch. 1263, art. V, 

5 8(3), at 5764. 

3. The Texas act, unlike the federal act, does not 

explicitly prohibit discrimination based on pregnancy. 

4. The difference in treatment here is between natural 

parents and adoptive parents. That is a distinction based 

not on gender, but on parental status. You do not ask, and 

we do not consider, whether such disparate treatment 

violates the equal protection clause. See aenerallv 

Geduldia v. Aiello, 417 U.S. 484 (1974) (pregnancy-based 

classification is not sex based classification for purposes 

of equal protection clause because it divides potential 

beneficiaries into two groups: pregnant women and 

non-pregnant women). Nor do we address whether the Texas 

Equal Rights Amendment, Tex. Const. art. I, 5 3a, requires 

(Footnote Continued) 

P. 6373 
Mr. Ron Lindsey - Page 5 (JM-1203) 

(1974); General Elec. co. v. Gilbert, 429 U.S. 125, 135-36 

(1976) (pregnancy based discrimination is not discrimination 

based on sex). 

SUMMARY 

An appropriations act provision stating 

that pregnancy and adoption of a child under 

three years of age are to be treated as any 

other disability means that a state employee 

who adopts a child under three years of a9-e 

is to be treated as if he or she had undergone pregnancy and childbirth. Therefore, an 

employee who adopts a child under three years 

of age may use the amount of sick leave that 

would be necessary to recover from pregnancy 

and childbirth. 

JIM M A-T T 0 X 

Attorney General of Texas 

P MARYKELLER 

First Assistant Attorney General 

LOU MCCREARY 

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. 

P. 6374