Untitled Texas Attorney General Opinion ( 1984 )

The Attorney’ General of Texas
November7. 1984
JIM MATTOX
AttorneyGeneral
Suprulm ceull sulldlq
Emorable Lloyd Crlmt Opinion No. JH-227
P. 0. Box 1254S Chairmsn
*u*un, TX. 7S711*254S Committeeon Labor cmd Employment lk: Whether an employeeof a
512147,250l Relations state agency may be terminated
Td4X 91wS7c13S7
Texan Eouaa of Repn!eentatives while collacting workmen’s
TeIecopier5121475mSS
P. 0. Box 2910 compensationdue to an on-the-
Austin, Texas 78769 job injury
714 Jackson.Suiie 7&l
D4llrr. TX. 752024506 Dear Representative
Criss:
214/742aS44
You have asked *whetherthe Texas Departmentof Mental Health and
4S24AIbeflS Ave.. Suit. 190 Mental Retardation[hereinafterMHMR] may terminate non-probationary
El Pma TX. 7K-052793 full-timeemployeeswho have been on leave without pay for more than
915632aS4 six weeks after having filed a claim and been warded benefits under
the vorker’s compensationlaws. You advise that MHMR has an across-
1 Texas. s&e 700
the-boardpolicy vhich terminatessutomaticallyany employee on leave
HousIcm.TX. 77OD2-3111 without pay for more than six veeks unless an extensionof that laave
713222-5886 is approvedby superriaorypersonnel.
It is our opinion that a state agency may not terminate,in the
so9 Broadwsy, suit* 312
mstmer described,its employeeswho are on an unpaid leave of absence
Lubeoch TX. 794a1-3178
W&747-5238 and receiving vorkw’s compensationbenefits. We believe that the
state Is requiredto have a legitimatejob-relatedreason,other than
a mere leave of absence,before it may terminatean employeewho is on
4309N. Tenth. Suite B
leave because of a j’obrelated injury.
McAllm. TX. 7-1.lSS5
5wSm4S47
State law prohibitsthe terminationof employeesvho have filed
claims under the worker’s compensationstatutesas follow:
200 MaIn Plsm. suits u)o
.sm Antonlo. lx. 7s2a.2797 No pez’som
may discharge or in any other manner
512/2254191
discrfiinatc sgainst any employee because the
employeebar,in good faith filed a claim . . . or
caused to be instituted, in good faith, any
proceedingunder the Texas Workman’s Compensation
Act. . . .
V.T.C.S. art. 83011:.Il. This provision is applicable to state
employees. V.T.C.!;.art. 8309g, ClS(a). A state employee may elect
to use his accrued sick leave vith tbe state before receivingweekly
compensationpaymclts but is not required to do so. V.T.C.S. art.
83090. 112. In these statutes, the state has exercisedits plenary
p. 1019
llonorable
Lloyd Criaa - Pagu 2 (JU-227)
legislative paver to define public policy regarding the protection
afforded to injured public employees vho file vorker's compensation
claims. Any administrativeregulationwhich unreasonablyburdens this
policy cannot stand.
We believe that the protection provided by this legislative
mandate would be of little use to a state agency employee if he could
be terminated after having filed a claim and been avarded benefits
vhile on leave from his cployment folloviagwork-related injuries
incurredwhile pursuing rho interestsof the state. The termination
of such an injured employeewould appear to be based on his having
filed a good faith vorke::"scompensationclaim vhich resulted in
payments during his temparary incapacity. It makes no sense to
prohibit an agency from disnissingemployeesfor filing a claim but to
permit an agency automaticrLl.lyto terminateemployeeswho have taken
leave without pay, because of such injury.
We do not believe that the departmentof MRMR can validly adopt a
uniform limit of six veeks leave without pay after which employeeson
worker's compensation may be subject to termination. An employee
should not be put to the choice of either retaininghis employmentby
returningto work, perhaps prematurely,before the end of the six-week
period or initiating a wxrkar's compensationclaim which may pay
benefits for an extended pw:lod of tima but would result in the loss
of his job.
The cases decided ur,derthe anti-discriminatory provision of
article 8307~ have held essentiallythat an employee on a worker's
compensationleave may be terminatedonly for reasonsunrelatedto the
vorker's compensatiouclais. E-Tex Dairy Queen, Inc. v. Adair, 566
S.W.Zd 37 (Tex. Civ. App. - Beaumont 1978. no vrlt) (finding that
discharge vas based both on filing claim and past misconduct
sufficientto support verdict for employees);Sehraderv. Artco Bell
Corp.. 579 S.W.2d 534 (Tex. Civ. App. - Tyler 1979.writ ref'd n.r.e.)
(more than scintilla of wldmce sufficient to support finding of
dlscrimi=tory discharge fcr filing a claim);Murray Corp. of Maryland
v. Broker, 600 S.W.2d 897 (Tex. Civ. App. ~- Tyler 1980. writ rcf'd
n.t.ke than scintillaof evidencesufficient to support finding
of discrlminetoty..dischrgc for filing a claim); Deford Lumber Co.,
Inc. v. Rays, 615 S.U.2d :235 (Tex. App. - Dallas 1981. no vrit);
McGarry, "RetaliatoryTermi.r.ation in IJorhn's CompensationCases," 44
Tex. B. J. 617 (1981).
In Santex. Inc. v. Cuaningham.618 S.U.2d 557 (Tex. Civ. App. -
Waco 1981, no writ). the court upheld a judgmentsgainst an employer
In a suit by an employee claiming wrongful discharge under arti;le
8307~ based upon jury findingsthat he bad been fired both for filing
a worker’s compensation claim and failure to perform vork
satisfactorily.The court held that
p. 1020
BomorableLloyd Criaa - Page 3 (m-227)
an employer may oo’tuse the filing of a Worker’s
Cmpeosation claim as a reason to discharge or
othervisediscriminateagalostan cpployeeeven if
there are other reasons.
did.
- at 559.
Ue believe that tha l~cgialatlve policy of fair play evident in
article 8307~ requires th.atan employet who is Injured while in
pursuit of the state’t interest and who is on an involuntaryleave of
absencebe entitled to have the state show, based on the nature of the
employee’sduties and the circumstancespertaloiogto the leave of
absence,a legitimateindependentreason for the dismissal. This does
not mean that the department is required to hold a job open for an
iodefinlteperiod of time. The departmentmay decide, on a case-by-
case basis, that a partic:u.lar position must be filled because of
legitimate business concanrs without violating state law; never-
theless, such a possibili,tydoes not justify an across-the-board
terminationpolicy. We do not believe that a per se rule permitting
terminationafter a ctrtain period of leavewithoutpay is appropriate
when that leave is a result of an on-the-jobinjury. We believe that
any other conclusionwould pose potentialproblemswith respect to the
employee’srights undtr the federal statuteprohibitingdiscrimination
against the handicapped,2.9U.S.C. 1794 (1982),and might implicate
the amployeesliberty inter,e:stasecuredby the FourteenthAmendment to
the United States Constitut:ion.
SUMMARY
The Texas Department of Mental Health and
Mental Retardationmay not automatically terminate
non-probationary employees who are collecting
worker’s compeoru~tionbenefits and who are on
leave of abeoce without pay for more than six
weeks. The mara fact thtt an employeeis in such
status for a fixed period of time is not per se an
adequate basis for termfnatiogsuch an employee,
and in the abswrce bf a legitimateindependent
reason, such terminationviolatesthe state policy
expressedin article 8307~. section 1. V.T.C.S.
JIM MATTOX
AttorneyGeneral of Texas
Lloyd Crias
lloaorable - Page 4 (.~227)
TC% GREEN
Pirst AssistantAttorney General
DAVID R. RICRARDS
ExecutiveAssistantAttorney Gee,eral
RICK GILPIN
Ch4irm40.OpinionCopnittce
Preparedby Colin J. Carl
AssistantAttorueyGaneral
APPROVED:
OPINION COWfIlTEE
Rick Gllpin. Chairmsn
Colin Carl