September 26, 1988

Mr. Willie L. Scott Executive Director Texas Department of Community Affairs P. 0. BOX 13166 Austin, Texas 78711

DearMr. Scott: opinionNo. JM-956

Re: Use of sick leaveby employees who are involuntarily terminated (RQ-1372)

You describe a situation in the Texas Department of CommunityAffairs (TDCA), inwhich employees in certain programswere laid off after the transfer of two major federalprograms to the Texas Departmentof Commerce. Some of the affected employees elected to remain on the TDCA payroll to exhaust accrued vacation time rather than receiving a lump sumpayment for theirvacation. You ask whether these employees may use previously earned sick leaveduring 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 coveredby the General tionsAct. AppropriaWe also assume that they have had continuous employmentwith the state for at least sixmonths, rendering them eligible forpaid 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 GeneralAppropriations Act establish 't:e parameters inwhich those entitlementsare earned. ableportions of the current actprovide: ApplicSec. 8. EMPLOYEESVACATIONSAND LEAVES.

a. [Elmployeesof the state shall, without deduction in salarybe entitled to a vacation in each fiscalyear.

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. . . .
An employeewill earnvacation entitlement beginning on the firstday of employmentwith the state and terminatingon 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 accruedat the time of separation from state employment,provided the employee has had continuous employmentwith the state for six (6)months.

. . . .

C. Employees of the state shall, without deduction in salary, be entitled to sick leave subject to the followingconditions:

An employeewill earn sick leave entitlement beginning on the firstday 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 employeewho must be absent fromduty 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 appropriateauthority for his consideration. (Emphasisadded.)

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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 relationshipbetween employment status and the vacation Andysick leavebenefits 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 leavebenefits but that an employeewho receives a lump sumpayment for accrued vacation is no longer eligible for employeebenefits. See Attorney General OpinionsJW-556 (1986) (extendedperiod of sick leave does not merit); interruptperiod of continuous employJW-204 (1984) (part-timeand temporary employees are entitled to vacation and sick leavebenefits):NW-427 (1982) (employeemay be involuntarilyterminated while on sick leave,but must be paid forportion of accrued sick leave that is required for him to recover):MW-282 (lumpsum payment for accruedvacation does not extend employment for longevity or hazardous dutypay), MW-247 (1980); H-1096 (1977) (lump sum payment for aCCNed vacation does not extendperiod of employment);H-684 (1975).

You suggest that the sick leave provisions of the GeneralAppropriationsAct are applicableonly to who will actuallybe returning to duty. employees We disagree. While the applicability of the sick leave provisions quoted earliermay be somewhatambiguous in the situation that you present,we conclude that sick leavebenefits are available to an employee familymember iswho is 'actually ill, or whose immediate
duty or not. illwhether the employee will return to

The sick leaveprovisions of the GeneralAppropriations Act as drafted reflect the usual employment situation, anticipating that the employee will return to work. These provisions work well situationwhen the enough for the usual employment employeeactuallydoes 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'sperformance of duty." One reading of the sick leaveprovisions is that sick leavebenefits are available to an employee onlywhen the employee and the agency intend that therewill be a return to duty. In our opinion,however, this is neither a necessary conclusion from the languageof the act nor the fairestreading of the language. The reference to returning to duty, in our opinion, is made only in the context of a deadline for

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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 employeenor a member of his immediate family: (2)notification of the supervisor at the earliest practicable time: and (3) completionand submissionof the prescribed application for leave to the appropriateauthority. In case of illness of
more than three days, there is the additional requirement of
a doctoFs certificationof the illness. We find no express requirement in the act that the employee return to duty.

InAttorney 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 forwhatever portion of his aCCNed sick leave that is used for him to recover fromhis illness. Although that opinion did not conclude that the employee should be retained on the payrolluntil 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 followingdiscussion:

In our reading of the sick leave provisions,
we findno 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/hervacation and reguests sick leaveduring the extendedperiod. Of course, if the agency suspectsan abuse of sick leave then it should take appropriate action to investigatethe request just as it does with any employee8s sick leave request where abuse is suspected.

The state comptrolleralso has fiscal responsibility and interpretiveauthority 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 accruedvacation time upon separation from -,

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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. statuteand 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 agencypayroll until all accruedvacation time was exhausted. In his memorandum datedAugust 13, 1975, the comptroller noted that "an employeemay not remain on an agencypayroll to expend aCCNed sick leave eXCeDt for leait&mate illness." (Emphasis added.)1

In reading the sick leaveprovision aboutwhich you inquire,we follow a rule of statutoryconstruction that
was discussed in Attorney General Opinion W-984 (1971). That op'inioninterpreted leave provisions contained in the GeneralAppropriationsAct and stated:

If there be any doubt or ambiguity in the statute calling for construction, it should be resolved in favor of the beneficiaryunder the well settled canon which demands a liberal construction in favor of encouraging State serviceby State employees.
Attorney General Opinion W-984 (1971), at 2; see also Attorney General OpinionJM-407 (1985).

We adhere to that rule of construction to resolve the ambiguity in the sick leave provisions of the General AppropriationsAct in favor of encouraging state service. We conclude that a state employee who has completed his finalday of duty with an agency but who remains on the payroll to expend his accrued vacation time sick leave for his own bona fide illnessor for the ~%~~~ of a member of his immediate family.

1. Before the enactmentof article 6252-8b, V.T.C.S., employeeswhose state employmentwas terminated remained on the payroll to exhaust their accNed vacation benefits. Since the effectivedate of this statute, choose either to receive a lump employees may sumpayment for earned vacation or to remain on the payroll.

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SUMMARY

A state employee who has finalday completed his

of duty with an agency but who remains on the payroll to expendhis aCCNed vacation timemay use sick leave for his own bona fide illnessor for that of a member of his immediate family.

-J IM MATTOX Attorney General of Texas

WARYKELLER FirstAssistantAttorney General

mu MCCREARY ExecutiveAssistant Attorney General

JUDGE ZOLLIE STEAIUKY SpecialAssistantAttorney General

RICK GILPIN Chairman, Opinion Committee
Preparedby Karen C. Gladney Assistant Attorney General

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