Case Information

*1 The Attorney’ General of Texas November 7. 1984 JIM MATTOX

Attorney General Opinion No. JH-227 Emorable Lloyd Crlmt

Suprulm ceull sulldlq Chairmsn P. 0. Box 1254S Committee on Labor cmd Employment lk: Whether an employee of a *u*un, TX. 7S711*254S state agency may be terminated 512147,250l Relations Td4X 91wS7c13S7 while collacting workmen’s Texan Eouaa of Repn!eentatives TeIecopier 5121475mSS P. 0. Box 2910 compensation due to an on-the-

Austin, Texas 78769 job injury 714 Jackson. Suiie 7&l Dear Representative Criss: D4llrr. TX. 752024506 214/742aS44

You have asked *whether the Texas Department of Mental Health and Mental Retardation [hereinafter MHMR] may terminate non-probationary 4S24 AIbeflS Ave.. Suit. 190 full-time employees who have been on leave without pay for more than El Pma TX. 7K-052793 six weeks after having filed a claim and been warded benefits under 915632aS4 the vorker’s compensation laws. You advise that MHMR has an across- the-board policy vhich terminates sutomatically any employee on leave 1 Texas. s&e 700 without pay for more than six veeks unless an extension that laave HousIcm. TX. 77OD2-3111 is approved by superriaory personnel. 713222-5886

It is our opinion that state agency may not terminate, in the so9 Broadwsy, suit* 312 mstmer described, its employees who are on an unpaid leave of absence Lubeoch TX. 794a1-3178 and receiving vorkw’s compensation benefits. We believe that the W&747-5238 state Is required to have a legitimate job-related reason, other than

a mere leave of absence, before it may terminate an employee who is on 4309 N. Tenth. Suite B leave because of a j’ob related injury. McAllm. TX. 7-1.lSS5 5wSm4S47 State law prohibits the termination employees vho have filed claims under the worker’s compensation statutes as 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

employee bar, in good faith filed a claim . . . or caused to be instituted, in good faith, any proceeding under 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 receiving weekly compensation paymclts but is not required do so. V.T.C.S. art. 83090. 112. In these statutes, the state has exercised its plenary

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 administrative regulation which unreasonably burdens this policy cannot stand.

We believe that the protection provided by this legislative mandate would be of little use a state agency employee if he could be terminated after having filed a claim and been avarded benefits vhile on leave from his cployment folloviag work-related injuries incurred while pursuing rho interests of the state. The termination such an injured employee would appear to be based on his having filed a good faith vorke::"s compensation claim vhich resulted in payments during his temparary incapacity. It makes no sense to prohibit an agency from disnissing employees for filing a claim but to permit agency automaticrLl.ly to terminate employees who have taken leave without pay, because of such injury.

We do not believe that the department of MRMR can validly adopt a uniform limit of six veeks leave without pay after which employees on worker's compensation may be subject to termination. An employee should not be put to the choice of either retaining his employment by returning to work, perhaps prematurely, before the end of the six-week period or initiating a wxrkar's compensation claim which may pay benefits for an extended pw:lod of tima but would result in the loss his job.

The cases decided ur,der the anti-discriminatory provision of article 8307~ have held essentially that an employee on a worker's compensation leave may be terminated only for reasons unrelated to the vorker's compensatiou clais. 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 sufficient to support verdict for employees); Sehrader v. 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 scintilla of evidence sufficient to support finding for filing a claim); Deford Lumber Co., of discrlminetoty..dischrgc Inc. v. Rays, 615 S.U.2d :235 (Tex. App. - Dallas 1981. no vrit); McGarry, "Retaliatory Termi.r.ation in IJorhn's Compensation Cases," 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 judgment sgainst an employer In a suit by an employee claiming wrongful discharge under arti;le 8307~ based upon jury findings that he bad been fired both filing worker’s compensation claim and failure to perform vork satisfactorily. The court held that

Bomorable Lloyd Criaa - 3 (m-227)

an employer may oo’t use the filing of a Worker’s Cmpeosation claim as a reason to discharge or othervise discriminate agalost an cpployee even if there are other reasons.

did. at 559. -

Ue believe that tha l~cgialatlve policy of fair play evident in article 8307~ requires th.at employet who is Injured while in pursuit of the state’t interest and who is on an involuntary leave of absence be entitled have the state show, based on the nature of the employee’s duties and the circumstances pertaloiog to the leave of absence, a legitimate independent reason the dismissal. This does not mean that the department is required to hold a job open for an iodefinlte period of time. The department may 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,ty does not justify an across-the-board termination policy. We do not believe that a per se rule permitting termination after a ctrtain period of leave without pay is appropriate when that leave is a result of an on-the-job injury. We believe that any other conclusion would pose potential problems with respect to the employee’s rights undtr the federal statute prohibiting discrimination against the handicapped, 2.9 U.S.C. 1794 (1982), and might implicate the amployees liberty inter,e:sta secured by the Fourteenth Amendment to the United States Constitut:ion.

SUMMARY The Texas Department of Mental Health and Mental Retardation may not automatically terminate non-probationary employees who are collecting worker’s compeoru~tion benefits and who are on leave of abeoce without pay for more than six weeks. The mara fact thtt an employee is in such status for a fixed period of time is not per se an adequate basis for termfnatiog such an employee, and in the abswrce bf legitimate independent reason, such termination violates the state policy expressed in article 8307~. section 1. V.T.C.S.

JIM MATTOX Attorney General Texas *4 lloaorable Lloyd Crias - 4 (.~227)

TC% GREEN

Pirst Assistant Attorney General

DAVID R. RICRARDS

Executive Assistant Attorney Gee,eral

RICK GILPIN

Ch4irm40. Opinion Copnittce

Prepared by Colin J. Carl

Assistant Attoruey Ganeral

APPROVED:

OPINION COWfIlTEE

Rick Gllpin. Chairmsn

Colin Carl