Request By:
Mr. David L. Keller
Executive Director
Kentucky School Boards Association
Englewood Office Park
Route 3, Box 96A
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
In your recent letter to our office, you point out that the 1986 Kentucky General Assembly amended both KRS 161.155 and KRS 161.770 to allow certified school employees to take either a leave of absence or use sick leave days following the adoption of a child. You also point out that in OAG 80-151, these two statutes were read to allow maternity leave for certified school employees only to the extent that the leave was related to a physical illness or disability of the mother or child.
Given the basis for the legal conclusion in OAG 80-151, you are inquiring whether the amendments to KRS 161.155 and KRS 161.770 change the conclusions in OAG 80-151 as they relate to maternity leave.
KRS 161.155 (sick leave for teachers) and KRS 161.770 (leaves of absence for teachers) have been interpreted on numerous prior occasions by this office. See OAG 71-303, OAG 73-585, OAG 73-665, OAG 74-274, OAG 75-259, OAG 75-367, OAG 76-18, and OAG 80-151.
The amendments to which you refer were passed by the 1986 Kentucky General Assembly in the form of H.B. 840. The provisions of KRS 161.155 and 161.770 relevant to this opinion, along with the amendments thereto as a result of H.B. 840, are as follows: 161.155 Sick leave for employes or teachers
(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) "Employe" shall mean any person, other than a teacher, employed in the public schools, whether on a full or part time basis.
(c) "Immediate family" shall mean the teacher's spouse, children including stepchildren, parents or 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 (10) 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.
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(5) A teacher may use up to thirty (30) days of sick leave following the adoption of a child or children.
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Section 2. KRS 161.770 is amended to read as follows:
161.770 Leaves of absence
(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, adoption of a child or children, 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 or 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.
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(Amendments pursuant to H.B. 840 are underlined.)
As to KRS 161.155, the sick leave statute, our office concluded in OAG 80-151 as follows:
". . . 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, child-birth or other related medical conditions,' then a local board of education must permit the teacher to take days of accumulated sick leave. . . ."
It is not clear whether the amendment to KRS 161.155, allowing teachers who adopt children to take sick leave, violates the equal protection clause of the Fourteenth Amendment. The equal protection clause governs all government actions which classify individuals for different benefits or burdens under the law. The classes created by the legislation are teachers who are biological parents and teachers who adopt children. The adoptive parents are given the right to take sick leave days to care for their child. However, biological parents do not have these rights under the law. Biological mothers declared medically disabled by their doctor may take sick days. A biological father cannot take time off to tend to his healthy baby, and neither can a biological mother unless she is considered disabled from teaching.
Despite the obvious unfairness apparent on the face of the statute, this classification could survive constitutional scrutiny. The classification does not involve a suspect class or a fundamental right and thus it is not subject to heightened scrutiny. The test employed in a classification of this kind is the "rational relationship" test which was recently articulated in
City of Cleburne v. Cleburne Living Center, 105 S. Ct. 3249 (1985). The Court stated:
"The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the states wide latitude, and the constitution presumes that even improvident decisions will eventually be rectified by the democratic process." Id. at 3254 (citations omitted).
Nowak, Rotunda, and Young, Constitutional Law, at 591 (2d ed. 1983), states that under the rational relationship test ". . . the Court will ask only whether it is conceivable that the classification bears a rational relationship to an end of government which is not prohibited by the Constitution. So long as it is arguable that the other branch of government had such a basis for creating the classification the court will not invalidate the law."
Railway Express Agency v. People of State of New York, 336 U.S. 106, 93 L. Ed. 533 (1949), illustrates the deference given to legislatures under the rational relationship test. In this case the City of New York passed a law which prohibited advertisements on vehicles. Although businesses could advertise on vehicles that they owned, they were prohibited from carrying other people's advertisements. The purpose of this traffic regulation was to prevent distractions to drivers. The court refuted the equal protection claim, stating:
"The local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem. It would take a degree of omniscience which we lack to say such is not the case."
Thus, it is likely that the amendment to the statute in question could withstand a challenge under the Equal Protection Clause. The amendment can be said to have legislative purposes of encouraging adoption or to address some problems of adjustment that might be peculiar to adoptive parents and children. These are no doubt legitimate purposes, and if the legislature rationally could have believed that the amendment allowing sick leave for teachers who adopt children would promote its objective, it could pass constitutional muster.
Western and Southern Life Insurance Company v. State Board of Equalization of California, 451 U.S. 648, 68 L. Ed. 514 (1981).
Given the conclusion that the amendment to KRS 161.155 provided for by H.B. 840 probably does not violate the Equal Protection Clause, it appears that the amendment to KRS 161.155 is constitutionally valid so that a teacher may use up to 30 days of sick leave following the adoption of a child or children. Furthermore, given the discussion above, our conclusion in OAG 80-151, as quoted above, relating to the use of sick days for maternity leave, remains valid and is reaffirmed in this opinion.
Turning to the amendment to KRS 161.770, the leaves of absence statute, we are faced with great interpretation and application problems. 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, adoption of a child or children, or other disability is the reason for the request." (Emphasis of new language added).
In interpreting the type of maternity status whereby a leave of absence may be validly granted, this office concluded in OAG 80-151 as follows:
". . . 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.
". . . 'Maternity' leave of absence is available during pregnancy, childbirth and for such period following childbirth as she is medically disabled from teaching. "
The legal basis for this conclusion in OAG 80-155 was that this interpretation of "maternity" was consistent with the same kind, class or nature of the other terms, i.e., "illness, . . . or other disability . . .", enumerated. However, as a result of H.B. 840, the phrase, "adoption of a child or children," has been inserted into these enumerated terms within KRS 161.770. Obviously, the adoption of a child or children by a teacher does not constitute a medical disability. Now that the terms enumerated within KRS 161.770 do not include only medical disabilities, the ejusdem generis rule of statutory construction is no longer applicable in construing the term "maternity" found in KRS 161.770. As a result of H.B. 840, we must withdraw our conclusion reached in OAG 80-151 to the extent of its applicability of KRS 161.770 in granting leaves of absence for maternity. H.B. 840 leads us to the inescapable conclusion that we must return to our prior interpretation of KRS 161.770 found in OAG 75-259. In that opinion, our office concluded that the unpaid leave of absence statute, KRS 161.770, should be applied in cases of maternity even when the purpose of the leave is not disability but to care for the newborn infant. Under KRS 161.770, requests for unpaid leaves of absence for maternity should be granted on an individual basis, considering individual circumstances, for a reasonable period of time.
In summary, H.B. 840, amending KRS 161.155 and 161.770, enacted by the 1986 Kentucky General Assembly, has caused us to reach the following conclusions as to maternity leave for teachers:
(1) A teacher is entitled to utilize earned sick leave due to disability from pregnancy, childbirth or recovery therefrom (this conclusion reaffirms OAG 80-151 as it relates to KRS 161.155); and,
(2) A teacher may take an unpaid leave of absence for maternity, which may properly include time for care of a newborn infant, and this maternity leave shall be granted by the local board of education for a reasonable period of time on an individual basis, considering individual circumstances. OAG 80-151 is hereby withdrawn to the extent its conclusions relating to KRS 161.770 are inconsistent with this opinion.