Untitled Texas Attorney General Opinion ( 1990 )

August 7, 1990
Mr. Ron Lindsey. Opinion No. JM-1203
Commissioner
Texas Department of Human Re: Sick leave for adopting
Services parents (RQ-1829)
P. 0. Box 149030
Austin, Texas 78714-9030
Dear Mr. Lindsey:
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 sick-
ness, 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 Depart-
ment 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:
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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 first appeared in the appro-
priations act adopted in 1985. General 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 of age should be
treated as any other temporary disability. Conference Comm.
Report, Ii-B. 20, 69th Leg. (1985).
The only statement we have found in the legislative
history of the 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
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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. The plain language of the rider approaches the
ridiculous. 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).
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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, 479 U.S. 272
(1987); see also Rzcord v. Mill N ck Ma nor Lutheran School
for the Deaf, 611 F. Supp. 905 (E.Z.N.Y. 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)
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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 under-
gone 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