Does a Texas state agency have to fire a worker on injury leave past 12 months?

Plain-English summary

Two state rules seemed to collide for the Texas Department of Health. One, in the General Appropriations Act (the budget bill the Legislature passes each session), said state agencies could put employees on unpaid leave only up to 12 months. The other, the Workers' Compensation Act, said an employer cannot fire a worker for filing an injury claim in good faith. The department had an employee who had filed such a claim and would be out on unpaid leave for more than a year. The Commissioner of Health asked the Attorney General whether the budget rule forced the department to fire that worker.

The Attorney General said no, the two rules did not actually conflict. The budget provision had an exception written right into it: it said that "except for disciplinary and workers compensation situations," employees had to burn through their accumulated paid leave before going on unpaid leave, and that such leaves were capped at 12 months. The Attorney General read that "except" clause as carving workers' compensation situations out of the whole rule, including the 12-month cap, not just the paid-leave-first requirement. The opinion backed this up with legislative history: the exception was added in 1985, the same era that an earlier Attorney General opinion held the Workers' Compensation Act bars discharging an injured worker on unpaid leave, so the Legislature appeared to be lining the budget rule up with that holding.

There was a second, independent reason. The same budget provision let an agency's administrative head grant exceptions to the leave limits "for such reasons as" interagency transfer or educational purposes. Because the law said "for such reasons as," that list was just examples, not the only allowed reasons. So an agency head had the authority to extend an injured employee's unpaid leave past 12 months when it served the agency's interests. Either way, the department was not required to fire the worker.

Currency note

This opinion was issued in 1993. 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. The Workers' Compensation Act anti-retaliation provision (then V.T.C.S. article 8307c) has since been recodified into the Labor Code, and the General Appropriations Act is re-enacted with new leave provisions every legislative session, so confirm the current budget rider and statute before relying on anything described here.

Background and statutory framework

The Commissioner of Health asked the Attorney General to clarify an apparent conflict between the General Appropriations Act and the Workers' Compensation Act, V.T.C.S. article 8307c. The General Appropriations Act appeared to prohibit state agencies from letting employees take more than 12 months of unpaid leave, while the Workers' Compensation Act provided that an employer cannot terminate an employee for filing a claim in good faith. The department had an employee who filed a good-faith compensation claim and would need to be on unpaid leave for longer than 12 months, and asked whether it had to terminate the employee. The AG concluded the department was not required to terminate an employee simply because a work-related injury kept the employee on unpaid leave for more than 12 months.

The leave provision. The pertinent budget provision (Acts 1991, 72d Leg., 1st C.S., ch. 19, art. V, § 8) let agencies grant leave without pay subject to listed conditions, including subdivision (a): "Except for disciplinary and workers compensation situations all accumulated paid leave entitlements must be exhausted before granting such leaves," with sick leave exhausted only where the employee is eligible, and the statement that "[s]uch leaves will be limited in duration to twelve (12) months." Subdivision (c) added that "[t]he administrative head of an agency may grant exceptions to these limitations for such reasons as interagency transfer or educational purposes."

Reading the "except" clause to cover the 12-month cap. The AG concluded the "except" clause in subdivision (a) applied to the 12-month limit, not just to the accumulated-paid-leave requirement. The "except" language was first added in 1985. The 1983 General Appropriations Act (Acts 1983, 68th Leg., ch. 1095, art. V, § 8) had stated the accumulated-paid-leave rule and the 12-month limit as two separate subdivisions, (1) and (2). In 1985 the Legislature combined those two subdivisions into one and added the exception for disciplinary and workers'-compensation situations. The AG saw no reason to combine them other than to make the exception apply to both. The history reinforced this: in 1984 the office had concluded the Workers' Compensation Act prevents employers from discharging employees after a certain period of unpaid leave for a work-related injury (AG Opinion JM-227 (1984)), so the Legislature likely added the "except" language to conform the budget provision to that opinion.

The agency-head exception. Independently, the AG read subdivision (c) to give agency heads authority to make exceptions to the 12-month limit for employees on unpaid leave recovering from work-related injuries. Because the provision said exceptions could be granted "for such reasons as" interagency transfer or educational purposes, the listed reasons were not exclusive, and an agency head could extend unpaid leave beyond 12 months when doing so advances the agency's interests.

Common questions

Did a Texas state agency have to fire an employee stuck on injury leave past a year?
No. The opinion concluded a state agency is not required to terminate an employee simply because a work-related injury has kept the employee on unpaid leave for more than 12 months.

Didn't the budget bill cap unpaid leave at 12 months?
It did for ordinary unpaid leave, but the provision carved out "disciplinary and workers compensation situations." The Attorney General read that exception to reach the 12-month cap itself, not just the rule about using up paid leave first.

Was there another way around the 12-month limit?
Yes. The same provision let an agency's administrative head grant exceptions "for such reasons as" interagency transfer or educational purposes. Because that list was just examples, an agency head could extend injury leave past 12 months when it served the agency's interests.

Why did the legislative history matter?
Because the exception was added in 1985 by merging two earlier subdivisions, around the time an Attorney General opinion held the Workers' Compensation Act bars discharging an injured worker on unpaid leave. That timing suggested the Legislature meant the budget rule to fit with the workers'-compensation protection rather than override it.

Citations

• V.T.C.S. article 8307c (Workers' Compensation Act; bars terminating an employee for filing a good-faith claim)
• General Appropriations Act, Acts 1991, 72d Leg., 1st C.S., ch. 19, art. V, § 8 (leave without pay; "except for disciplinary and workers compensation situations"; 12-month limit; agency-head exceptions)
• General Appropriations Act, Acts 1983, 68th Leg., ch. 1095, art. V, § 8 (prior version, separate subdivisions)
• Attorney General Opinion JM-227 (1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0214
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0214.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The footnote text marked in the source could not be recovered from the scan. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 31, 1993

David R. Smith, M.D.
Commissioner of Health
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. DM-214

Re: Impact of "leave without pay" provisions of the General Appropriations Act on the Workers' Compensation Act, V.T.C.S. article 8307c (RQ-576)

Dear Dr. Smith:

You have asked this office to clarify an apparent conflict between the General Appropriations Act and the Workers' Compensation Act, V.T.C.S. article 8307c. In your letter, you indicate that the Department of Health ("the department") is concerned because the General Appropriations Act appears to prohibit state agencies from permitting employees to take more than 12 months of unpaid leave, while the Workers' Compensation Act provides that an employer cannot terminate an employee for filing a claim in good faith. Currently, the department has an employee who filed a good-faith compensation claim and will need to be on unpaid leave for longer than 12 months. You ask whether the department is required to terminate this employee.

We conclude that the department is not required to terminate an employee simply because that employee has been on unpaid leave in connection with a work-related injury for more than 12 months. In our opinion, the General Appropriations Act does not conflict with the Workers' Compensation Act for two reasons. First, we read the appropriations act to except employees on leave for work-related injuries from the 12-month limit. Second, the appropriations act permits agency heads to grant exceptions to the 12-month limit for employees who are on unpaid leave in connection with work-related injuries.

The pertinent subsection of the General Appropriations Act states as follows:

8. Agencies may grant employees leave without pay or leave of absence without pay subject to the following provisions:

a. Except for disciplinary and workers compensation situations all accumulated paid leave entitlements must be exhausted before granting such leaves, with the additional provision that sick leave must be exhausted only in those cases where the employee is eligible to take sick leave, as provided in section 8(2) above. Such leaves will be limited in duration to twelve (12) months.

. . . .

c. The administrative head of an agency may grant exceptions to these limitations for such reasons as interagency transfer or educational purposes.

Acts 1991, 72d Leg., 1st C.S., ch. 19, art. V, § 8, at 1009.

We believe that the "except" clause in subdivision (a) of this subsection applies to the 12-month limit, as well as to the language regarding accumulated paid leave. The "except" language was first added to the General Appropriations Act in 1985. The 1983 General Appropriations Act contained the following language:

Agencies may grant employees leave without pay or leave of absence without pay subject to the following provisions:

(1) All accumulated paid leave entitlements must be exhausted before granting such leaves, with the additional provision that sick leave must be exhausted only in those cases where the employee is eligible to take sick leave, as provided in section 8.x. above.

(2) Such leaves will be limited in duration to twelve (12) months.

Acts 1983, 68th Leg., ch. 1095, art. V, § 8, at 6207. In the 1985 version, the legislature combined the language in subdivisions one and two of the 1983 version and added the exception for disciplinary and workers' compensation situations. We can see no reason for combining the two subdivisions other than to make the exceptions applicable to both. Furthermore, in 1984, this office concluded that the Workers' Compensation Act prevents employers from discharging employees after a certain period of time when they are on unpaid leave for a work-related injury. See Attorney General Opinion JM-227 (1984). Thus, it seems likely that the legislature added the "except" language to make the subsection conform to this decision.

We also believe that subdivision (c) gives agency heads the authority to make exceptions to the 12-month limit for employees who are on unpaid leave to recover from work-related injuries. By using the phrase "for such reasons as," the legislature indicated that the listings following this phrase were not exclusive. We believe that this language gives agency heads the authority to extend unpaid leaves beyond 12 months when doing so will advance the agency's interests.

SUMMARY

A state agency is not required to terminate an employee simply because that employee has been on unpaid leave in connection with a work-related injury for more than 12 months. The General Appropriations Act does not conflict with the Workers' Compensation Act. Rather, the appropriations act excepts employees on leave for work-related injuries from the 12-month limit. In addition, we believe the appropriations act permits agency heads to grant exceptions to the 12-month limit for employees on unpaid leave in connection with work-related injuries.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Margaret A. Roll
Assistant Attorney General