If I am laid off but stay on the state payroll to use up my vacation, can I still take paid sick leave?

Texas AG Opinion JM-956: Can Laid-Off Workers Use Sick Leave While Burning Vacation?

Plain-English summary

When the state moved two federal programs out of the Texas Department of Community Affairs, some employees in the affected programs were laid off. Texas gives a departing state employee a choice: take a lump sum payment for unused vacation, or stay on the payroll a while longer and use the vacation time up day by day. These employees chose to stay on the payroll and exhaust their vacation. The question their agency brought to the Attorney General was narrow but real for anyone in that spot: while you are on the payroll using up vacation, and you get sick, can you switch to your accrued sick leave?

The Attorney General said yes.

The agency had argued that the sick leave rules in the General Appropriations Act were written for employees who would actually come back to work, so a laid-off employee on the way out should not get to use sick leave. The Attorney General read the statute differently. The sick leave provisions do talk about returning to duty, but that language sets a deadline for turning in the leave paperwork, not a test of who qualifies for sick leave in the first place. Nowhere does the Act say an employee must intend to return to work to earn or use sick leave.

The Act instead treats sick leave as an entitlement with a few conditions attached: there has to be an actual illness, injury, or pregnancy affecting the employee or a member of the immediate family, the supervisor has to be told at the earliest practical time, and the employee has to submit a leave application. For an illness lasting more than three days, a doctor's certification is also required. An employee who meets those conditions qualifies, whether or not they are heading back to their old job.

The Attorney General pointed to an earlier opinion, MW-427 (1982), which had already decided that an employee involuntarily terminated while on extended sick leave was still entitled to be paid for the sick leave used to recover. Both the state auditor and the state comptroller, the two offices with authority over state employee benefits, took the same view. The comptroller's guidance from 1975 allowed an employee to stay on the payroll to exhaust vacation, and permitted the use of sick leave during that stretch as long as the illness was legitimate.

Rounding it out, the Attorney General applied a long-standing rule for reading these leave provisions: when the language is ambiguous, resolve it in favor of the employee, because the point of these benefits is to encourage people to serve the state. Put together, a state employee who has finished their last day of duty but remains on the payroll to use up vacation may take sick leave for a genuine illness of their own or of an immediate family member.

Currency note

This opinion was issued in 1988. 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.

State employee leave is now governed largely by dedicated leave chapters in the Government Code rather than by recurring provisions buried in each General Appropriations Act, and the vacation lump sum statute cited here (article 6252-8b, V.T.C.S.) has since been repealed and recodified. The Texas Department of Community Affairs was later abolished and its functions moved to successor agencies. Anyone deciding a sick leave or separation question today should work from the current Government Code leave chapters and the comptroller's current payroll rules, not the 1987 appropriations act language quoted here.

Who this opinion affected (as of 1988)

State employees who were laid off but stayed on the payroll: The opinion confirmed they could use accrued sick leave for a genuine illness while exhausting their vacation time.

State agency payroll and human resources staff: The opinion told them not to deny sick leave to a departing employee simply because the employee was not going to return to duty.

The state auditor and comptroller: Both offices had already read the leave provisions the same way, and the opinion aligned with their guidance.

Common questions

Can a laid-off state employee use sick leave while using up vacation on the payroll?
Yes. The Attorney General concluded that an employee who has completed their final day of duty but remains on the payroll to expend accrued vacation may use sick leave for a bona fide illness of the employee or an immediate family member.

Does the employee have to intend to return to work?
No. The Attorney General found no requirement in the General Appropriations Act that an employee return to duty to qualify for sick leave. The references to returning to duty set a deadline for submitting leave paperwork, not a condition on who gets sick leave.

What conditions still apply to the sick leave?
There must be an actual illness, injury, or pregnancy affecting the employee or an immediate family member, the supervisor must be notified at the earliest practical time, and the employee must submit the leave application. An illness of more than three days also requires a doctor's certification.

Could the agency refuse sick leave if it suspected abuse?
Yes. The state auditor's brief noted that an agency could investigate a suspected abuse of sick leave just as it would for any other employee, but it could not refuse sick leave for a genuine illness simply because the employee had been noticed for layoff.

Background and statutory framework

The opinion assumed the employees were covered by the General Appropriations Act and had at least six months of continuous state employment, making them eligible for paid vacation (Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V). Since 1977, each general appropriations act has contained nearly identical provisions establishing separate entitlements for paid vacation and sick leave for state employees, and setting the parameters within which those entitlements are earned.

The vacation provision entitles a state employee to a paid vacation each fiscal year, with entitlement earned from the first day of employment through the last day of duty, and provides that an employee who resigns, is dismissed, or is separated is entitled to be paid for accrued vacation if the employee has had six months of continuous employment. The sick leave provision makes sick leave with pay available when sickness, injury, or pregnancy and confinement prevent the employee's performance of duty, or when a member of the immediate family is actually ill, subject to notifying the supervisor at the earliest practicable time and, upon return to duty, completing and submitting the prescribed application for sick leave (Acts 1987, 70th Leg., 2d C.S., ch. 78, sections 8a, 8c).

The agency argued the sick leave provisions applied only to employees who would actually return to duty. The Attorney General disagreed, reasoning that while the provisions are drafted for the usual situation in which an employee returns to work, the reference to returning to duty is made in the context of a deadline for submitting paperwork, not as a condition precedent to the entitlement. The Act establishes sick leave as an entitlement subject to conditions: actual sickness, injury, or pregnancy of the employee or an immediate family member; notification of the supervisor at the earliest practicable time; completion and submission of the prescribed leave application; and, for illness of more than three days, a doctor's certification. The opinion found no express requirement that the employee return to duty.

The Attorney General relied on Attorney General Opinion MW-427 (1982), which concluded that an employee involuntarily terminated while on extended sick leave was nonetheless entitled to be paid for the portion of accrued sick leave used to recover. Two state officers with interpretive authority over state employee benefits supported that view. The state auditor's brief found no basis for an agency to refuse sick leave to an employee with a bona fide illness who had been noticed for layoff and allowed to remain on the payroll to exhaust vacation, while preserving the agency's ability to investigate suspected abuse. The state comptroller, who has fiscal responsibility and interpretive authority over the payment of state employees (Government Code sections 403.001-.122), had issued two 1975 memoranda after the enactment of the lump sum vacation statute (article 6252-8b, V.T.C.S.): a June 27, 1975 memorandum stating that the lump sum provision did not prevent an employee from electing to remain on the payroll until accrued vacation was exhausted, and an August 13, 1975 memorandum noting that an employee may not remain on the payroll to expend accrued sick leave except for legitimate illness.

Finally, the opinion applied the rule of construction stated in Attorney General Opinion W-984 (1971): any doubt or ambiguity in the General Appropriations Act's leave provisions should be resolved in favor of the beneficiary, under the canon demanding a liberal construction in favor of encouraging state service by state employees (see also Attorney General Opinion JM-407 (1985)). Adhering to that rule, the Attorney General concluded that a state employee who has completed the final day of duty but remains on the payroll to expend accrued vacation may use sick leave for the employee's own bona fide illness or that of a member of the immediate family.

Citations

Statutory authority:

• Acts 1987, 70th Leg., 2d C.S., ch. 78 (General Appropriations Act; separate paid vacation and sick leave entitlements for state employees)
• Government Code sections 403.001-.122 (comptroller's fiscal responsibility and interpretive authority over payment of state employees)
• Article 6252-8b, V.T.C.S. (lump sum payment for accrued vacation upon separation from state employment)

Prior Attorney General opinions referenced: JW-556 (1986), JW-204 (1984), MW-427 (1982), MW-282, MW-247 (1980), H-1096 (1977), H-684 (1975), W-984 (1971), JM-407 (1985).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-956
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0956.pdf

Original opinion text

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

September 26, 1988

Mr. Willie L. Scott
Executive Director
Texas Department of Community Affairs
P.O. Box 13166
Austin, Texas 78711

Opinion No. JM-956

Re: Use of sick leave by employees who are involuntarily terminated (RQ-1372)

Dear Mr. Scott:

You describe a situation in the Texas Department of Community Affairs (TDCA), in which employees in certain programs were laid off after the transfer of two major federal programs to the Texas Department of Commerce. Some of the affected employees elected to remain on the TDCA payroll to exhaust accrued vacation time rather than receiving a lump sum payment for their vacation. You ask whether these employees may use previously earned sick leave during the time they are on vacation. We answer your question in the affirmative.

We assume for the purposes of this opinion that the employees in question are covered by the General Appropriations Act. We also assume that they have had continuous employment with the state for at least six months, rendering them eligible for paid vacation. Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, section 8a, at 824.

Since 1977, each general appropriations act has contained nearly identical provisions establishing separate entitlements for paid vacation and sick leave for state employees. In addition, the vacation and sick leave provisions of the General Appropriations Act establish the parameters in which those entitlements are earned. Applicable portions of the current act provide:

Sec. 8. EMPLOYEES VACATIONS AND LEAVES.

a. [E]mployees of the state shall, without deduction in salary be entitled to a vacation in each fiscal year.

. . . .

An employee will earn vacation entitlement beginning on the first day of employment with the state and terminating on the last day of duty.

. . . .

A state employee who resigns, is dismissed, or separated from state employment shall be entitled to be paid for all vacation time duly accrued at the time of separation from state employment, provided the employee has had continuous employment with the state for six (6) months.

. . . .

C. Employees of the state shall, without deduction in salary, be entitled to sick leave subject to the following conditions:

An employee will earn sick leave entitlement beginning on the first day of employment with the state and terminating on the last day of duty.

. . . Sick leave accrual shall terminate on the last day of duty.

Sick leave with pay may be taken when sickness, injury, or pregnancy and confinement prevent the employee's performance of duty or when a member of his immediate family is actually ill. . . . An employee who must be absent from duty because of illness shall notify his supervisor or cause him to be notified of that fact at the earliest practicable time.

. . . .

Upon return to duty after sick leave the employee concerned shall, without delay, complete the prescribed application for sick leave and submit the same through proper channels to the appropriate authority for his consideration. (Emphasis added.)

Acts 1987, 70th Leg., 2d C.S., ch. 78, sections 8a, 8c, at 825, 826.

In the past, this office has had several occasions on which to examine the relationship between employment status and the vacation and sick leave benefits of state employees. While your specific question has not been considered previously, relevant opinions of this office have consistently concluded that an employee who remains on the payroll is entitled to vacation and sick leave benefits but that an employee who receives a lump sum payment for accrued vacation is no longer eligible for employee benefits. See Attorney General Opinions JW-556 (1986) (extended period of sick leave does not interrupt period of continuous employment); JW-204 (1984) (part-time and temporary employees are entitled to vacation and sick leave benefits); MW-427 (1982) (employee may be involuntarily terminated while on sick leave, but must be paid for portion of accrued sick leave that is required for him to recover); MW-282 (lump sum payment for accrued vacation does not extend employment for longevity or hazardous duty pay), MW-247 (1980); H-1096 (1977) (lump sum payment for accrued vacation does not extend period of employment); H-684 (1975).

You suggest that the sick leave provisions of the General Appropriations Act are applicable only to employees who will actually be returning to duty. We disagree. While the applicability of the sick leave provisions quoted earlier may be somewhat ambiguous in the situation that you present, we conclude that sick leave benefits are available to an employee who is actually ill, or whose immediate family member is ill whether the employee will return to duty or not.

The sick leave provisions of the General Appropriations Act as drafted reflect the usual employment situation, anticipating that the employee will return to work. These provisions work well enough for the usual employment situation when the employee actually does return to work. In the current instance, the employees who have been laid off will not return to duty, nor does illness alone "prevent the employee's performance of duty." One reading of the sick leave provisions is that sick leave benefits are available to an employee only when the employee and the agency intend that there will be a return to duty. In our opinion, however, this is neither a necessary conclusion from the language of the act nor the fairest reading of the language. The reference to returning to duty, in our opinion, is made only in the context of a deadline for submitting appropriate paper work, not as a condition precedent to the operation of the entitlement.

The General Appropriations Act has established sick leave as an entitlement subject to certain conditions: (1) actual sickness, injury, or pregnancy of the employee or a member of his immediate family; (2) notification of the supervisor at the earliest practicable time; and (3) completion and submission of the prescribed application for leave to the appropriate authority. In case of illness of more than three days, there is the additional requirement of a doctor's certification of the illness. We find no express requirement in the act that the employee return to duty.

In Attorney General Opinion MW-427 (1982) this office concluded that an employee who is involuntarily terminated while on extended sick leave is nonetheless entitled to be paid for whatever portion of his accrued sick leave that is used for him to recover from his illness. Although that opinion did not conclude that the employee should be retained on the payroll until he had recovered, it did determine that the employee was entitled to be paid for those days when he had a bona fide illness. Our determination in the instant case is consistent with that earlier opinion.

Two state officers with interpretive authority concerning state employee benefits support our view. In response to your question the state auditor filed a brief in which he included the following discussion:

In our reading of the sick leave provisions, we find no basis for an agency to refuse to grant sick leave to an employee for a bona fide illness, who has been noticed for lay-off, requests and is allowed to remain on the payroll to exhaust his/her vacation and requests sick leave during the extended period. Of course, if the agency suspects an abuse of sick leave then it should take appropriate action to investigate the request just as it does with any employee's sick leave request where abuse is suspected.

The state comptroller also has fiscal responsibility and interpretive authority in regard to the payment of state employees. Gov't Code sections 403.001-.122. When the legislature enacted a provision allowing state employees to receive a lump sum for accrued vacation time upon separation from state employment (article 6252-8b, V.T.C.S.), the comptroller issued two memoranda to all state agencies describing the effect of the statute and outlining the procedures to be followed. In his memorandum, dated June 27, 1975, the comptroller stated that the new lump sum provision was not to be construed to prevent an employee of the state from electing to remain on an agency payroll until all accrued vacation time was exhausted. In his memorandum dated August 13, 1975, the comptroller noted that "an employee may not remain on an agency payroll to expend accrued sick leave except for legitimate illness." (Emphasis added.)[1]

In reading the sick leave provision about which you inquire, we follow a rule of statutory construction that was discussed in Attorney General Opinion W-984 (1971). That opinion interpreted leave provisions contained in the General Appropriations Act and stated:

If there be any doubt or ambiguity in the statute calling for construction, it should be resolved in favor of the beneficiary under the well settled canon which demands a liberal construction in favor of encouraging State service by State employees.

Attorney General Opinion W-984 (1971), at 2; see also Attorney General Opinion JM-407 (1985).

We adhere to that rule of construction to resolve the ambiguity in the sick leave provisions of the General Appropriations Act in favor of encouraging state service. We conclude that a state employee who has completed his final day of duty with an agency but who remains on the payroll to expend his accrued vacation time may use sick leave for his own bona fide illness or for the illness of a member of his immediate family.

SUMMARY

A state employee who has completed his final day of duty with an agency but who remains on the payroll to expend his accrued vacation time may use sick leave for his own bona fide illness or for that of a member of his immediate family.

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

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General

[1] Before the enactment of article 6252-8b, V.T.C.S., employees whose state employment was terminated remained on the payroll to exhaust their accrued vacation benefits. Since the effective date of this statute, employees may choose either to receive a lump sum payment for earned vacation or to remain on the payroll.