Opinion No. ( 1994 )

Mr. John T. Shannon State Forester Arkansas Forestry Commission 3821 Roosevelt Road Little Rock, AR 72204

Dear Mr. Shannon:

This is in response to your request for an opinion on the following question:

May the Arkansas Forestry Commission require employees to use their accrued sick and annual leave to supplement their Worker's Compensation benefits before granting leave without pay?

In my opinion, the law not only authorizes but compels the Forestry Commission to require employees to use accrued sick and annual leave before granting them leave without pay. It does not, however, authorize the Commission, in my opinion, to require employees to use such leave to supplement their workers' compensation benefits prior to taking such leave.

Pursuant to A.C.A. 21-4-210(a) (1987), a permanent or probationary employee, upon application in writing to and upon written approval by the agency director, may obtain a continuous six month leave of absence without pay. Section21-4-210(c)(1) provides that leave of absence without pay, except in the case of military or maternity leave, shall not be granted until all of the employee's accumulated annual leave has been exhausted. In addition, 21-4-210(c)(2) provides that leave of absence without pay due to illness shall not be granted until all of the employee's accumulated sick leave has been exhausted. These provisions appear to require the Arkansas Forestry Commission, as a state agency under A.C.A.21-4-203(1), to make its employees use all accrued annual and sick leave prior to granting a leave of absence without pay due to illness, except in cases of maternity leave or military leave under 21-4-212.¹

As you note in your request, A.C.A. 21-4-208 grants employees who are absent from work due to a temporary occupational injury or illness and entitled to workers' compensation benefits the option of using their accrued sick leave to supplement their workers' compensation benefits, so that the two payments together equal but do not exceed their normal weekly pay. This section provides an option for employees; it does not, in my opinion, authorize employers to force employees to use their sick leave in this manner. The provision does not apply to annual leave at all. I am aware of no other provisions that authorize employers to require employees to use accrued sick and annual leave to supplement their workers' compensation benefits before granting leave without pay. Thus, if an employee prefers to use his accrued leave after the expiration of his workers' compensation benefits, but still prior to taking leave of absence without pay, the law would appear to allow it.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Catherine Templeton.

Sincerely, WINSTON BRYANT Attorney General

WB:cyh

¹ As you note in your request, The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 (1993), permits employers covered by the Act to require employees to substitute paid annual or sick leave for leave without pay taken under the Act. See29 C.F.R. 825.207(d) (1993). While state law is consistent with The Family and Medical Leave Act in this particular instance, it must be noted that the Act does not supersede state law providing greater family or medical leave rights to employees. See 29 C.F.R. 825.701 (1993).