Request By:
Fred D. Williams, Superintendent. Fort Thomas City Schools, Fort Thomas, Kentucky
Opinion
Opinion By: Robert L. Chenoweth, Deputy Attorney General
EDUCATION, BOARD OF - Reports to board on policiesTEACHER - Leave of absence, contract, resumption; sick leave
You have asked the Office of the Attorney General for an opinion regarding maternity leave of absence for teachers. Your request has been joined by more than a handful of others interested in the same subject. This office deems it advantageous to discuss the various questions concerning pregnancy sick leave and maternity leave in one advisory opinion.
The background for your particular question is that your board of education received a request from a teacher for a one year maternity leave of absence for an entire school year. This leave was requested before the start of the school year. You noted, however, that the teacher was expected to deliver prior to the opening of the school year. Your question, under the circumstances described, was whether the board of education could legally grant the requested one year leave of absence.
Another superintendent requested whether a teacher could use accumulated sick leave days for days she was disabled prior to childbirth, for childbirth and for the approximately six week period of disability that would follow the childbirth. The return to teaching duties would be dictated by a statement of the teacher's physician.
Lastly, yet another superintendent asked several questions relating to teachers' requests for leave. These questions were as follows:
"(1) If a teacher is granted a leave during the school year for the remainder of the school year and the leave is extended for the next school year does this constitute two consecutive school years?
(2) Does a request for a leave to care for a newborn child qualify as maternity leave? Is the father eligible for maternity leave under the above conditions?
(3) What conditions must be present for a teacher to qualify for maternity leave?
(4) Does the two years mentioned in KRS 161.770 mean the teacher is automatically entitled to two years leave for the reasons indicated?
(5) If a leave is granted for reasons stated in KRS 161.770 is a teacher automatically entitled to have the leave renewed for the same reasons which caused the granting of the first leave?"
The Office of the Attorney General has not occasioned to write an advisory opinion relative to the leaves available to pregnant teachers in four years, OAG 76-18. During this period, there have been many court cases, at least two of which have been principle cases in the United States Supreme Court, General Electric Co. v. Gilbert, 429 U.S. 125 (1976) and Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), a host of articles and finally and most importantly, the passage of the 1978 amendment to Title VII of the Civil Rights Act of 1964. Before we look at and analyze Kentucky's school law provisions, it is imperative that this federal law be reviewed.
Public Law 95-555 became effective October 31, 1978. Its purpose was to amend Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. The relevant provision of Public Law 95-555 was codified as 42 U.S.C. § 2000e(k) and reads as follows:
"(k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. "
There can be little question but that this amendment was passed as an outgrowth of the United States Supreme Court's decisions in General Electric and Satty, supra. See Legislative History of the Act, 1978 U.S. Code Cong. & Ad. News, hereafter "Legislative History" 4751. Basically, the rule in the General Electric case was that "absent a showing of gender-based discrimination, there can be no violation of Section 703(a)(1) of Title VII." General. Electric Co. v. Gilbert at 137, n. 15; also, see French, All Things Being Equal. . . . General Electric Co. v. Gilbert: An Analysis, 7 J. Law & Ed. 21, 23 (1978). "Essentially, the disposition of General Electric . . . resulted in the elimination of Title VII as a protective force for women who are denied certain employee benefits even though similar benefits are readily provided for men." Id. at 26.
The Legislative History to the Act says in part: "H.R. 6075 (P.L. 95-555) was introduced to change the definition of sex discrimination in Title VII to reflect the common sense view and to ensure that working women are protected against all forms of employment discrimination based on sex." Legislative History at 4751. The Legislative History at 4753 further provides: "This bill would prevent employers from treating pregnancy, childbirth and related medical conditions in a manner different from their treatment of other disabilities. In other words, this bill would require that women disabled due to pregnancy, childbirth or other related medical conditions be provided the same benefits as those provided other disabled workers. This would include temporary and long term disability insurance, sick leave, and other forms of employee benefit programs." Thus, it can be seen that the key to this federal law provision is to prohibit discrimination in employment based on "pregnancy, childbirth or related medical conditions."
Against this backdrop of federal law, we must now interpret and correlate the two school laws, KRS 161. 155 and KRS 161. 770. KRS 161.155 reads as follows:
"(1) As used in this section:
(a) 'Teacher' shall mean any person for whom certification is required as a basis of employment in the common schools of the state.
(b) 'Immediate family' shall mean the teacher's spouse, children including stepchildren, parents and spouse's parents without reference to the location or residence of said relative.
(2) Each district board of education shall allow to each teacher in its common school system not less than ten (10) days of sick leave during each school year, without deduction of salary. Sick leave shall be granted to a teacher if he presents a personal affidavit or a certificate of a physician stating that the teacher was ill or that the teacher was absent for the purpose of attending to a member of his immediate family who was ill. The ten (1) days of sick leave herein granted may be taken by a teacher on any ten (10) days of the school year and shall be granted in addition to accumulated sick leave days that have been credited to the teacher under the provisions of subsection (3) of this section.
(3) Days of sick leave not taken by a teacher during any school year shall accumulate without limitation and be credited to that teacher. Accumulated sick leave may be taken in any school year. Any district board of education may, in its discretion, allow teachers in its common school system sick leave in excess of the number of days prescribed in this section. Any accumulated sick leave days, not to exceed thirty (30) days, credited to a teacher shall remain so credited in the event he transfers his place of employment from one school district to another within the state.
(4) Accumulated days of sick leave shall be granted to a teacher, if prior to the opening day of the school year, an affidavit or a certificate of a physician is presented to the district board of education, stating that the teacher is unable to commence his duties on the opening day of the school year, but will be able to assume his duties within a period of, time that the board determines to be reasonable."
One of the first things necessary in considering KRS 161.155 is to understand that while it is entitled "sick leave for teachers, " it has never been so narrowly construed nor applied. Facially, it permits public common school teachers in the Commonwealth to accrue an unlimited number of days at ten per school year to be used when the teacher or the teacher's immediate family as defined is "ill." However, the statute as applied is actually a "disability" provision. Practically speaking, "ill" must be interpreted as does Webster as "not healthy, normal or well; having a disease; sick; indisposed." Simply put, when a teacher is unable to perform his or her teaching duties because of a medically related condition, the teacher may take sick leave with pay as accumulated by presenting a personal affidavit or a certificate of a physician. We are of the opinion, and the federal law prohibiting pregnancy discrimination allows no other, that sick leave with pay under KRS 161.155 is available to the pregnant teacher who is thereby disabled from performing her teaching duties. We caution, for fear of being misunderstood, that a pregnant condition in and of itself would not entitle a teacher to sick leave under KRS 161.155. If, however, the teacher by affidavit or physician's certificate states she is ill or otherwise disabled from teaching due to her "pregnancy, childbirth or other related medical conditions," then a local board of education must permit the teacher to take days of accumulated sick leave. The teacher will need to go a day at a time or with a physician's certificate prognosticating continued disability for a period of time, the teacher could request sick leave consistent with the period prescribed in the physician's certificate.
We are faced with much greater interpretation and application problems in KRS 161.770. Under this provision, upon written request of a teacher or superintendent, a local board of education must grant the leave of absence "where illness, maternity or other disability is the reason for the request." KRS 161.770(1), the only relevant subsection to the scope of this advisory opinion, reads as follows:
"(1) Upon written request of a teacher or superintendent, a board of education may grant a leave of absence for a period of not more than two (2) consecutive school years for educational or professional purposes, and shall grant such leave where illness, maternity or other disability is the reason for the request. Upon subsequent request, such leave may be renewed by the board, A board of education may pay a sum of money equivalent to all of any portion of salary to a teacher or superintendent who has been granted leave for educational or professional purposes if the person taking said leave agrees in writing to return to employment with the board for no less than two years."
We are of the opinion that this statute places no duration limitation on a request for a leave due to "illness, maternity or other disability. " The two year language is germane only to the educational or professional leave request as is the renewal language.
The leave authorized by KRS 161.770 is for absence without pay. It permits a legitimate absence from work hiatus while not affecting rights granted by the teaching contract. KRS 161.770(3), and see, for example, KRS 161.765(1). The teacher who requests and goes on such leave is not, however, entitled to sick leave days authorized under KRS 161.155, supra. Any sick leave accrued that is desired to be taken should be used before the teacher commences the leave of absence without pay status, authorized by 161.770. We believe a local board of education should advise teachers of this application of the law.
The problems with KRS 161.770 come about due to the use of the language "illness, maternity or other disability. " (Emphasis Added) As Justice Stevens argued in his dissenting opinion in the General Electric case, supra, "It is the capacity to become pregnant which primarily differentiates the female from the male." 429 U.S. at 162. Likewise, whatever construction is given to the term "maternity, " it can only relate to women. Black's Law Dictionary defines "maternity" as "the character, relation, state, or condition of a mother." However, we do not believe "maternity" in KRS 161.770 can be broadly interpreted to mean that a woman teacher is entitled to a leave of absence by reason of simply motherhood. We construe "maternity" as used in KRS 161.770 in accordance with the ejusdem generis rule of statutory construction. That is, "maternity" is of the same kind, class or nature as the other terms enumerated. Under this construction, only medical disabilities associated with maternity or the state of being a mother may constitute a reason for which a female teacher is entitled to leave of absence without pay pursuant to KRS 161.770.
Thus, it is the opinion of this office that under KRS 161.155, a pregnant teacher can and should exhaust her sick leave benefits before going on the status of maternity leave of absence without pay under KRS 161.770. "Maternity" leave of absence is available during pregnancy, childbirth and for such period following childbirth as she is medically disabled from teaching. We believe this conclusion is well in keeping with 42 U.S.C. 2000e(k), supra. As the Legislative History indicates. "using the broad phrase 'women affected by pregnancy, childbirth and related medical conditions . . . .' makes clear that its [the bill] protection extends to the whole range of matters concerning the child bearing process." Legislative History at 4753.
Additionally, we are of the opinion that although KRS 161.155 will not permit a school board requirement of a physician's certificate of an employee's disability to work in that an affidavit of the teacher will suffice, there is nothing in KRS 161.770 to preclude a board of education from requiring a physician's certificate. A school board could adopt such a policy pursuant to KRS 160.340(2)(e) which requires the board to adopt personnel policies that apply to certified employees. However, a school board cannot have a policy that treats pregnant employees or women generally different than other employees who incur temporary disability or the net effect of such a policy would be gender-based discrimination. This being the case, a board of education's policy would have to require all teachers applying for leave under KRS 161.770 to present a physician's certificate as to the teacher's disability due to "illness, maternity or other disability. " Also, the school district could require an examination by a physician chosen and paid for by the school board to confirm medical disability so long as it applied to all types of disabilities, not just those relating to maternity. Support for the propriety of this kind of policy can be seen from the Legislative History to Public Law 95-555 at 4754.
It is now necessary to apply our conclusions reached above to the various questions presented for our consideration. As for your question, we do not believe the teacher would be entitled to a year maternity leave of absence unless such was based upon a medical disability arising from the teacher's pregnancy, childbirth or recovery therefrom. We do not believe a teacher is entitled to a maternity leave under KRS 161.770 if the teacher simply wants to stay home to take care of a child. A maternity leave is only available for a medical disability condition. When the teacher is no longer disabled from the pregnancy, childbirth and recovery therefrom, the teachers leave of absence without pay should terminate, and she should commence her teaching duties. Note, however, that the board of education can adopt a policy requiring a teacher who has been on "illness, maternity or other disability" leave to submit a physician's certificate attesting to the teacher's ability to return to work and further can delay the teacher's return until the next regular school semester following receipt of the physician's attestation. See Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974).
As for our response to the question regarding the teacher granted leave during the school year for the remainder of the school year and then extended for the next school year, so long as the request for leave was due to "illness, maternity or other disability, " there is no two year limit. A request for leave by reason of "illness, maternity or other disability" may continue so long as a disability continues to exist.
In response to whether a request for a leave to care for a newborn child qualifies as maternity leave, we have already concluded above it does not by itself if no medical disability is being experienced at this period of time. As to whether a father is eligible for leave under 161.770 to care for a newborn child, we believe unquestionably he is not. Even 42 U.S.C. 2000e (k) would preclude extending protection under such circumstances. The Legislative History at 4753 states "The bill in (sic) intended to be limited to effects upon the woman who is herself pregnant, bearing a child or has a related medical condition, and not to include any effect upon one woman due to the pregnancy of another." Clearly, then, a man suffers no medical disability cognizable under KRS 161. 770 during the pregnancy, childbirth or rsaovery therefrom of his wife. We also add that it has always been the opinion of this office that a local board of education can only grant a leave of absence under KRS 161.770 for the exclusive purposes set out therein. See, e.g., OAG 73-679, copy attached.
CONCLUSION
It summary, it is the advisory opinion of the Office of the Attorney General that:
1. A teacher is entitled to utilize earned sick leave due to disability from pregnancy, childbirth or recovery therefrom:
2. A teacher may not take sick leave after requesting and going on maternity leave under KRS 161.770;
3. A teacher is only entitled to "maternity leave" for such time as she is medically disabled from pregnancy, childbirth or recovery therefrom; and
4. A board of education may require a physician's certificate of medical disability for purposes of KRS 161.770 so long as such certificate is required of all persons requesting leave for "illness, maternity or other disability. "
All prior advisory opinions of this office inconsistent with the above are hereby withdrawn or modified accordingly.