September 26, 1988 

Mr. Willie L. Scott 

Executive Director 

Texas Department of Community 

Affairs 

P. 0. BOX 13166 

Austin, Texas 78711 

Dear Mr. Scott: 

opinion No. JM-956 

Re: Use of sick leave by 

employees who are involuntarily terminated 

(RQ-1372) 

You describe a situation in the Texas Department of 

Community Affairs (TDCA), in which employees in certain 

programs were laid off after the transfer of two major 

federal programs to the Texas Department of Commerce. Some 

of the affected employees elected to remain on the TDCA 

payroll to exhaust accrued vacation time rather than 

receiving a lump sum payment for their vacation. You ask 

whether these employees may use previously earned sick 

leave during the time they are on vacation. 

question in the affirmative. 

We answer your 

We assume for the purposes of this opinion that the 

employees in question are covered by the General 

tions Act. 

AppropriaWe also assume that they have had continuous 

employment with the state for at least six months, rendering 

them eligible for paid vacation. Acts 1987, 70th Leg., 2d 

C.S., ch. 78, art. V, S Ea, at 824. 

Since 1977, each general appropriations act has contained nearly identical provisions establishing separate 

entitlements for paid vacation and sick leave for state 

employees. In addition, the vacation and sick leave - 

visions of the General Appropriations Act establish 't:e 

parameters in which those entitlements are earned. 

able portions of the current act provide: 

ApplicSec. 8. EMPLOYEES VACATIONS AND LEAVES. 

a. [Elmployees of the state shall, without deduction in salary be entitled to a 

vacation in each fiscal year. 

p. 4845 
Mr. Willie L. Scott - Page 2 (JM-956) 

. . . . 

An employee will earn vacation entitlement 

beginning on the first day of employment with 

the state and terminating on the last day of 

duty. 

. . . . 

A state employee who resigns, is dismissed, or separated from state employment 

shall be entitled to be paid for all vacation 

time duly accrued at the time of separation 

from state employment, provided the employee 

has had continuous employment with the state 

for six (6) months. 

. . . . 

C. Employees of the state shall, without 

deduction in salary, be entitled to sick 

leave subject to the following conditions: 

An employee will earn sick leave entitlement beginning on the first day of employment 

with the state and terminating on the last 

day of duty. 

. . . Sick leave accrual shall terminate 

on the last day of duty. 

Sick leave with pay may be taken when 

sickness, injury, or pregnancy and confinement prevent the employee*s performance of 

duty or when a member of his immediate family 

is actually ill. . . . An employee who must 

be absent from duty because of illness shall 

notify his supervisor or cause him to be 

notified of that fact at the earliest 

practicable time. 

. . . . 

Uoon return to duty after sick leave the 

employee concerned shall, without delay, 

complete the prescribed application for sick 

leave and submit the same through proper 

channels to the appropriate authority for his 

consideration. (Emphasis added.) 

p. 4846 
Mr. Willie L. Scott - Page 3 (JM-956) 

C 

Acts 1987, 70th Leg., 2d C.S., ch. 78, §§ 8a, 8c, at 825, 

826. 

In the past, this office has had several occasions on 

which to examine the relationship between employment status 

and the vacation Andy sick leave benefits of state employees. 

While your specific question has not been considered 

previously, relevant opinions of this office have consistently concluded that an employee who remains on the 

payroll is entitled to vacation and sick leave benefits but 

that an employee who receives a lump sum payment for accrued 

vacation is no longer eligible for employee benefits. See 

Attorney General Opinions JW-556 (1986) (extended period of 

sick leave does not 

merit); 

interrupt period of continuous employJW-204 (1984) (part-time and temporary employees are 

entitled to vacation and sick leave benefits): NW-427 (1982) 

(employee may be involuntarily terminated while on sick 

leave, but must be paid for portion of accrued sick leave 

that is required for him to recover): MW-282 (lump sum payment for accrued vacation does not extend employment for 

longevity or hazardous duty pay), MW-247 (1980); H-1096 

(1977) (lump sum payment for aCCNed vacation does not 

extend period of employment); H-684 (1975). 

You suggest that the sick leave provisions of the 

General Appropriations Act are applicable only to 

who will actually be returning to duty. 

employees 

We disagree. While 

the applicability of the sick leave provisions quoted 

earlier may be somewhat ambiguous in the situation that you 

present, we conclude that sick leave benefits are available 

to an employee 

family member is 

who is 'actually ill, or whose immediate 

duty or not. 

ill whether the employee will return to 

The sick leave provisions of the General Appropriations 

Act as drafted reflect the usual employment situation, 

anticipating that the employee will return to work. These 

provisions work well 

situation when the 

enough for the usual employment 

employee actually does return to work. 

In the current instance, the employees who have been laid 

off will not Veturn to duty,". nor does illness alone 

"prevent the employee's performance of duty." One reading 

of the sick leave provisions is that sick leave benefits are 

available to an employee only when the employee and the 

agency intend that there will be a return to duty. In our 

opinion, however, this is neither a necessary conclusion 

from the language of the act nor the fairest reading of the 

language. The reference to returning to duty, in our 

opinion, is made only in the context of a deadline for 

P. 4841 
Mr. Willie L. Scott - Page 4 (JM-956) 

submitting appropriate paper work, not as a condition 

precedent to the operation of the entitlement. 

The General Appropriations Act has established sick 

leave as an entitlement subject to certain conditions: (1) 

actual sickness, injury, or pregnancy of the employee nor a 

member of his immediate family: (2) notification of the 

supervisor at the earliest practicable time: and (3) 

completion and submission of the prescribed application for 

leave to the appropriate authority. In case of illness of 

more than three days, there is the additional requirement of 

a doctoFs certification of the illness. We find no express 

requirement in the act that the employee return to duty. 

In Attorney General Opinion MW-427 (1982) this office 

concluded that an employee who is involuntarily terminated 

while on extended sick leave is nonetheless entitled to be 

paid for whatever portion of his aCCNed sick leave that is 

used for him to recover from his illness. Although that 

opinion did not conclude that the employee should be 

retained on the payroll until he had recovered, it did 

determine that the employee was entitled to be paid for 

those days when he had a bona fide illness. Our determination in the instant case is consistent with that earlier 

opinion. 

Two state officers with interpretive authority concerning state employee benefits support our view. In 

response to your question the state auditor filed a brief in 

which he included the following discussion: 

In our reading of the sick leave provisions, 

we find no basis for an agency to refuse to 

grant sick leave to an employee for a bona 

fide illness, who has been noticed for layoff, requests and is allowed to remain on the 

payroll to exhaust his/her vacation and reguests sick leave during the extended period. 

Of course, if the agency suspects an abuse of 

sick leave then it should take appropriate 

action to investigate the request just as it 

does with any employee8s sick leave request 

where abuse is suspected. 

The state comptroller also has fiscal responsibility 

and interpretive authority in regard to the payment of state 

employees. Gov't Code 55 403.001-.122. When the legislature enacted a~ provision allowing state employees to receive 

a lump sum for accrued vacation time upon separation from -, 

P. 4848 
Mr. Willie L. Scott - Page 5 (JM-956) 

state employment (article 6252-8b, V.T.C.S.), the comptroller issued two memoranda to all state agencies describing the effect of the 

dures to be followed. 

statute and outlining the proceIn his memorandum, dated June 27, 

1975, the comptroller stated that the new lump sum provision 

was not to be construed to prevent an employee of the state 

from electing to remain on an agency payroll until all 

accrued vacation time was exhausted. In his memorandum 

dated August 13, 1975, the comptroller noted that "an 

employee may not remain on an agency payroll to expend 

aCCNed sick leave eXCeDt for leait&mate illness." (Emphasis 

added.)1 

In reading the sick leave provision about which you 

inquire, we follow a rule of statutory construction that 

was discussed in Attorney General Opinion W-984 (1971). 

That op'inion interpreted leave provisions contained in the 

General Appropriations Act and stated: 

If there be any doubt or ambiguity in the 

statute calling for construction, it should be 

resolved in favor of the beneficiary under the 

well settled canon which demands a liberal 

construction in favor of encouraging State 

service by State employees. 

Attorney General Opinion W-984 (1971), at 2; see also 

Attorney General Opinion JM-407 (1985). 

We adhere to that rule of construction to resolve the 

ambiguity in the sick leave provisions of the General 

Appropriations Act in favor of encouraging state service. 

We conclude that a state employee who has completed his 

final day of duty with an agency but who remains on the 

payroll to expend his accrued vacation time sick 

leave for his own bona fide illness or for the ~%~~~ of a 

member of his immediate family. 

1. Before the enactment of article 6252-8b, V.T.C.S., 

employees whose state employment was terminated remained on 

the payroll to exhaust their accNed vacation benefits. 

Since the effective date of this statute, 

choose either to receive a lump 

employees may 

sum payment for earned 

vacation or to remain on the payroll. 

p. 4849 
Mr. Willie L. Scott - Page 6 (JM-956) 

, 

SUMMARY 

A state employee who has 

final day 

completed his 

of duty with an agency but who 

remains on the payroll to expend his aCCNed 

vacation time may use sick leave for his own 

bona fide illness or for that of a member of 

his immediate family. 

-J I M MATTOX 

Attorney General of Texas 

WARYKELLER 

First Assistant Attorney General 

mu MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAIUKY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

p. 4850