PUBLIC EMPLOYEES ‑- STATE HIGHWAY DEPARTMENT ‑- SICK LEAVE WITH FULL PAY ‑- ELIGIBILITY TO RECEIVE COMPENSATION BENEFITS DURING SAME PERIOD

PUBLIC EMPLOYEES ‑- STATE HIGHWAY DEPARTMENT ‑- SICK LEAVE WITH FULL PAY ‑- ELIGIBILITY TO RECEIVE COMPENSATION BENEFITS DURING SAME PERIOD

An employee of the State Highway Department who receives his full salary while on sick leave granted during his convalescence from an injury is not entitled to receive in addition benefits under the workmen's compensation act for the same period.

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                                                                October 19, 1951

Honorable W. A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 154

Dear Sir:

            By letter of August 20, 1951, you state that it is the practice of the Department of Highways of the State of Washington to grant its employees one day's sick leave for each month worked.  You make reference to the general policy as approved by opinions from this office of permitting injured employees who are covered by the workmen's compensation act to elect to take their earned vacation during the period of their convalescence and thus to receive their regular salaries, in addition to and at the same time they are drawing benefits under the workmen's compensation act.

            You ask our opinion as to whether an employee of the Highway Department who receives his full salary while on sick leave granted during his recovery from an injury is, at the same time, entitled to receive benefits under the workmen's compensation act.

            Our conclusion is:

            An employee of the State Highway Department who receives his full salary while on sick leave granted during his convalescence from an injury is not entitled to receive in addition benefits under the workmen's compensation act for the same period.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            As pointed out in our opinion of November 23, 1940, to the Director of the Department of Labor and Industries (a copy of which is forwarded herewith), the accumulated vacation of a state employee is "earned" as the result of services rendered.  During the term of his employment the employee is entitled to his vacation period as a matter of right under the provisions of section 133, chapter 7, Laws of 1921 (Rem. Rev. Stat. 10891).  Sick leave, on the other hand, is not a right which the legislature has given state employees under any statutory provision.  Such leave, where made available to the employee, is granted in the exercise of the general discretionary administrative power of the head of the department, under the provisions of Rem. Rev. Stat. 10777.

            Subdivision (d) of § 7679 Rem. Rev. Stat. as amended by section 1, chapter 219, Laws of 1949 (§ 7679 Rem. Supp. 1949), provides in part that:

            "Should a workman suffer a temporary total disability, and should his employer, at the time of his injury, continue to pay him the wages which he was earning at the time of such injury, such injured workman shall not receive any payment provided in paragraph (d) subdivision (1) from the accident fund during the period his employer shall so pay such wages."

            This provision was considered by this office in an opinion to the Department of Labor and Industries under date of May 13, 1931, Ops. Atty. Gen. 1931-32, p. 103.  That opinion had reference to a situation where the employer paid the workman his usual salary, less the estimated amount of compensation benefits, during the period of disability.  The ruling there was that the workman was entitled to receive full compensation under the workmen's compensation act inasmuch as the payments made by the employer did not constitute the full amount of the workman's regular earnings.  However, where, as in the situation presented in your inquiry, the employee is granted sick leave and is paid the full amount of his regular earnings, the provisions of subdivision (d) of § 7679 Rem. Supp. 1949 above quoted would bar payment of compensation benefits.

            To permit an employee to continue to receive his regular earnings and at the same time to draw compensation benefits in addition thereto, would appear to be not only in direct violation of the foregoing express provisions of the workmen's compensation act, but would also be contrary to the intent and purpose of the departmental policy of granting sick leave with full pay.  As above indicated,  [[Orig. Op. Page 3]] the granting of sick leave is within the discretion of the Director of the Department of Highways.  He may grant such leave with full pay or with such portion thereof as may be justified by the administrative policy of his department.

            You are, therefore, advised that when the Director of the Department of Highways, in the exercise of his discretionary administrative authority, grants an employee sick leave during convalescence from injury, such employee is not entitled to receive benefits under the workmen's compensation act for the period during which he is paid the full amount of his regular earnings.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General