Could a Texas state employee use sick leave when adopting a child under the 1989-1990 appropriations act?

Texas AG Opinion JM-1203: Can a Texas State Employee Use Sick Leave to Adopt a Child?

Plain-English summary

The Commissioner of the Texas Department of Human Services asked whether the state's 1989-1990 General Appropriations Act required or authorized sick leave for a state employee adopting a child. The appropriations act's regular sick-leave provision covered illness, injury, pregnancy and confinement, or caring for a sick immediate family member, but did not mention adoption. A separate, oddly worded provision, however, stated that "pregnancies... shall be treated as any other temporary disability" and that "each case shall be evaluated on its own merit," language that had originated with a 1985 legislative proposal specifically aimed at giving adoptive parents leave to bond with a newly placed child under age three.

The Attorney General concluded that, despite the confusing "temporary disability" framing (adoption obviously is not a disability), the legislature clearly intended this provision to cover adoption leave, since that was its documented origin. The opinion held a state employee who adopts a child under three is entitled to use sick leave, in an amount agencies should set based on reasonableness, generally not exceeding what the agency allows a natural mother for pregnancy and childbirth recovery. The opinion also concluded the appropriations act did not authorize sick leave for a natural parent (father or mother) simply to bond with a healthy newborn, since that scenario is not "any other temporary disability" and was not part of the adoption-leave provision's history.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1990)

State agencies administering employee leave: The opinion concluded agencies had to allow employees adopting a child under three to use sick leave, with the specific amount left to each agency head's determination of reasonableness, generally not exceeding what the agency allowed natural mothers for pregnancy and childbirth.

State employees adopting a child: The opinion held the adoption-leave provision applied to an employee of either sex who adopted a child under three, meaning both adoptive mothers and adoptive fathers were covered.

Natural parents of a healthy newborn: The opinion concluded the appropriations act did not authorize sick leave for a natural mother or father simply to bond with a healthy newborn; natural mothers could still use sick leave to recover from pregnancy and childbirth itself, and any parent could use sick leave to care for a sick child of any age under a separate provision.

Common questions

Could a Texas state employee use sick leave to adopt a child under the 1989-1990 appropriations act?
Yes, according to the opinion, if the child was under three years old. The Attorney General traced the "treated as any other temporary disability" language back to a 1985 legislative proposal aimed specifically at adoption leave and concluded the legislature intended it to authorize sick leave for adoptive parents, notwithstanding the confusing "disability" framing.

How much sick leave could an adoptive parent use?
The opinion did not set a fixed number of days. It concluded the specific amount should be determined by each agency head applying a standard of reasonableness, and that ordinarily it would not be reasonable to grant adoptive parents more sick leave than the agency allowed natural mothers for pregnancy and childbirth.

Did this leave apply only to adoptive mothers, or to adoptive fathers too?
The opinion concluded the leave provision applied to an employee of either sex who adopted a child under three years of age.

Could a natural father use sick leave just to bond with a new baby?
No, according to the opinion. The Attorney General found nothing in the appropriations act authorizing natural parents, mothers or fathers, to use sick leave simply to care for a healthy newborn; natural mothers could use sick leave to recover from pregnancy and childbirth itself, a different situation.

Did treating pregnancy-related leave differently from adoption-related newborn bonding leave violate federal sex discrimination law?
No. The opinion concluded, relying on the U.S. Supreme Court's decision in California Federal Savings & Loan Ass'n v. Guerra, that this distinction did not violate Title VII's prohibition on sex discrimination, since the relevant difference was between recovering from a pregnancy-related medical condition and simply caring for a new child, not a distinction based on sex.

Background and statutory framework

The 1989 General Appropriations Act's standard sick-leave rider allowed sick leave with pay for the employee's own sickness, injury, or pregnancy and confinement, or to care for an immediately ill family member, defined to include those related by kinship, adoption, marriage, or a certified foster child living in the same household or wholly dependent on the employee. Acts 1989, 71st Leg., ch. 1263, art. V, § 8(3). A separate provision stated that "pregnancies... shall be treated as any other temporary disability" and directed that "each case shall be evaluated on its own merit." Acts 1989, 71st Leg., ch. 1263, art. V, § 8(6).

The opinion traced this second provision back to its first appearance in the 1985 appropriations act. A House Appropriations Committee proposal that year had contained explicit language entitling an employee who adopted a child under three to up to six weeks of accrued sick leave to bond with the child, but the Conference Committee replaced that specific language with the more general "temporary disability" phrasing, apparently intending, per a House resolution accompanying the change, to bring state rules into line with federal law requiring that pregnancy be treated the same as any other temporary disability under 42 U.S.C. § 2000e(k) and 29 C.F.R. § 1604.10(b). The opinion reasoned that since the "temporary disability" language served no purpose as applied to adoption (adoption is not a disability), and since the only documented legislative purpose behind mentioning adoption in this provision was the 1985 committee's bonding-leave proposal, the legislature must have intended the adoption reference to carry independent meaning: authorizing sick leave for adoptive parents.

On the discrimination question, the opinion applied Geduldig v. Aiello and General Elec. Co. v. Gilbert, which held that distinguishing based on pregnancy is not inherently sex-based discrimination for equal protection purposes, and California Federal Savings & Loan Ass'n v. Guerra, which the opinion read as confirming that treating pregnancy-related disability leave differently from general child-rearing leave does not violate Title VII. The opinion expressly did not address whether the same distinction between natural and adoptive parents would survive a challenge under the Texas Equal Rights Amendment, since that question was not asked.

Citations

Statutes:

• Acts 1989, 71st Leg., ch. 1263, art. V, § 8(3), at 5764 (regular sick leave provision)
• Acts 1989, 71st Leg., ch. 1263, art. V, § 8(6), at 5766 (pregnancy/adoption "temporary disability" provision)
• 42 U.S.C. § 2000e(k) (Pregnancy Discrimination Act)
• 29 C.F.R. § 1604.10(b) (EEOC regulation on pregnancy-related benefits)
• Tex. Civ. Prac. & Rem. Code ch. 106 (state prohibition on denying benefits based on sex)
• Tex. Const. art. I, § 3a (Texas Equal Rights Amendment, referenced but not addressed)

Cases:

• California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272 (1987)
• Record v. Mill Neck Manor Lutheran School, 611 F. Supp. 905 (E.D.N.Y. 1985)
• Geduldig v. Aiello, 417 U.S. 484 (1974)
• General Elec. Co. v. Gilbert, 429 U.S. 125 (1976)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1203
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1203.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

August 7, 1990

Mr. Ron Lindsey
Commissioner
Texas Department of Human Services
P. O. Box 149030
Austin, Texas 78714-9030

Opinion No. JM-1203

Re: Sick leave for adopting parents (RQ-1829)

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 sickness, 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 ill. 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 Department 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, § 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:

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, § 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 appropriations 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 House 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, § 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, H.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. § 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 the same as other medical disabilities. See 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 is not in fact a disability. In our opinion, the soundest approach is to disregard the "temporary 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 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. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272 (1987); see also Record v. Mill Neck Manor Lutheran School, 611 F. Supp. 905 (E.D.N.Y. 1985) (act does not protect people wishing to take child-rearing leave as opposed to women wishing to take pregnancy leave). See generally Strimling, The Constitutionality of State Laws Providing Employment Leave for Pregnancy: Rethinking Geduldig after Cal Fed, 77 Cal. L. 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 See Geduldig v. Aiello, 417 U.S. 484 (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 age is to be treated as if he or she had undergone 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 MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General