A-72714, AUGUST 1, 1936, 16 COMP. GEN. 105

A-72714: Aug 1, 1936

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PRESIDENTIAL REGULATIONS - GOVERNMENT PRINTING OFFICE COMPENSATION OR RETIREMENT FUND DEDUCTIONS ARE REQUIRED IN THE CASE OF AN EMPLOYEE ADVANCED CURRENT ANNUAL LEAVE WITH PAY WHO RESIGNS BEFORE EARNING SAID ADVANCED LEAVE. THE DATE OF DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY BE FIXED EFFECTIVE IMMEDIATELY. DO NOT REQUIRE ANY CHANGE IN THE RULE THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE. ARE FOR CONSIDERATION IN DETERMINING THE MAXIMUM NUMBER OF THREE SICK LEAVE ADVANCES AUTHORIZED TO BE MADE DURING THE CURRENT CALENDAR YEAR UNDER SECTION 3 OF THE UNIFORM SICK LEAVE REGULATIONS. DEDUCTIONS ARE NOT REQUIRED FROM RETIREMENT FUNDS TO THE CREDIT OF EMPLOYEES WHO WERE ADVANCED SICK LEAVE AND WERE SEPARATED FROM THE SERVICE BETWEEN JANUARY 1 AND JULY 1.

A-72714, AUGUST 1, 1936, 16 COMP. GEN. 105

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS MARCH 14, 1936, AND PRESIDENTIAL REGULATIONS - GOVERNMENT PRINTING OFFICE COMPENSATION OR RETIREMENT FUND DEDUCTIONS ARE REQUIRED IN THE CASE OF AN EMPLOYEE ADVANCED CURRENT ANNUAL LEAVE WITH PAY WHO RESIGNS BEFORE EARNING SAID ADVANCED LEAVE, NOTWITHSTANDING PRIOR SERVICE OF FIVE YEARS, THE LENGTH OF SERVICE BEYOND THE FIRST YEAR BEING IMMATERIAL. EMPLOYEES TRANSFERRED TO THE GOVERNMENT PRINTING OFFICE PRIOR TO JULY 1, 1936, WITH ACCUMULATED ANNUAL AND SICK LEAVE TO THEIR CREDIT IN THE DEPARTMENT FROM WHICH TRANSFERRED MAY NOT BE CREDITED WITH SUCH ACCUMULATED LEAVE, THERE HAVING BEEN NO PROVISION IN THE TEMPORARY LEAVE REGULATIONS OF THAT OFFICE UNDER THE ACT OF MARCH 14, 1936, OR OTHERWISE, FOR SUCH CREDIT. THE DATE OF DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY BE FIXED EFFECTIVE IMMEDIATELY, OR AT THE EXPIRATION OF ACCRUED LEAVE, IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED. THE LEAVE ACTS OF MARCH 14, 1936, AND THE PRESIDENT'S UNIFORM REGULATIONS THEREUNDER, DO NOT REQUIRE ANY CHANGE IN THE RULE THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE. SICK LEAVE ADVANCES MADE TO EMPLOYEES DURING THE PERIOD JANUARY 1 TO JULY 1, 1936, ARE FOR CONSIDERATION IN DETERMINING THE MAXIMUM NUMBER OF THREE SICK LEAVE ADVANCES AUTHORIZED TO BE MADE DURING THE CURRENT CALENDAR YEAR UNDER SECTION 3 OF THE UNIFORM SICK LEAVE REGULATIONS. DEDUCTIONS ARE NOT REQUIRED FROM RETIREMENT FUNDS TO THE CREDIT OF EMPLOYEES WHO WERE ADVANCED SICK LEAVE AND WERE SEPARATED FROM THE SERVICE BETWEEN JANUARY 1 AND JULY 1, 1936, BECAUSE OF RETIREMENT FOR AGE, DISABILITY, OR REDUCTION IN FORCE, IN THE ABSENCE OF AN ADMINISTRATIVE REGULATION OTHERWISE. SECTION 11 OF THE UNIFORM REGULATIONS, EXCLUDING FROM SICK LEAVE DAYS ON WHICH PER DIEM AND PER HOUR EMPLOYEES ARE IN A NONPAY STATUS, BEING EFFECTIVE FROM JULY 1, 1936, NO ADJUSTMENT IS AUTHORIZED BY REASON THEREOF BECAUSE OF SICK LEAVE CHARGED TO SUCH EMPLOYEES FOR THE PERIOD PRIOR TO JULY 1, 1936, UNDER THE RULE SET FORTH IN 15 COMP. GEN. 866. SICK LEAVE DAYS TAKEN ON PERSONAL CERTIFICATION DURING THE PERIOD JANUARY 1 TO JULY 1, 1936, ARE FOR CONSIDERATION IN DETERMINING THE MAXIMUM NUMBER OF TWELVE DAYS ALLOWABLE ON PERSONAL CERTIFICATE DURING THE CALENDAR YEAR UNDER SECTION 14 OF THE UNIFORM SICK LEAVE REGULATIONS. PROBATIONARY EMPLOYEES ARE ENTITLED TO SICK LEAVE UNDER THE ACT OF MARCH 14, 1936, BUT MAY NOT BE GRANTED ADVANCE SICK LEAVE IN EXCESS OF THE AMOUNT THAT WOULD ACCRUE DURING THE PROBATIONARY PERIOD. SECTION 18 OF THE UNIFORM SICK LEAVE REGULATIONS WHICH PROVIDE THAT SICK LEAVE AS ACCUMULATED MAY BE SUBSTITUTED FOR LEAVE WITHOUT PAY OR ANNUAL LEAVE TAKEN BECAUSE OF ILLNESS BETWEEN JANUARY 1 AND MARCH 14, 1936, BY EMPLOYEES NOT ENTITLED TO SICK LEAVE UNDER PRIOR LAW DOES NOT REQUIRE ANY READJUSTMENT IN THE COMPENSATION OR LEAVE RECORDS OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE MADE UNDER THE RULE LAID DOWN IN 15 COMP. GEN. 866, THAT SUCH LEAVE MAY BE SUBSTITUTED FOR SICK LEAVE ONLY TO THE EXTENT OF SICK LEAVE ACCUMULATED FROM JANUARY 1, 1936, TO DATE OF RETURN TO DUTY FOLLOWING THE PERIOD OF ABSENCE, AT 1 1/4 DAYS PER MONTH. SECTION 19 OF THE UNIFORM SICK LEAVE REGULATIONS WHICH PROVIDES THAT "SICK LEAVE TAKEN IN EXCESS OF 1 1/4 DAYS A MONTH DURING THE PERIOD BETWEEN JANUARY 1 AND MARCH 14, 1936, SHALL BE CHARGED AGAINST SICK LEAVE SUBSEQUENTLY ACCUMULATING," HAS NO APPLICATION TO THE GOVERNMENT PRINTING OFFICE, THE EMPLOYEES OF SAID OFFICE NOT HAVING BEEN ENTITLED TO SICK LEAVE PRIOR TO MARCH 14, 1936.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PUBLIC PRINTER, AUGUST 1, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 20, 1936, REQUESTING DECISION UPON A NUMBER OF QUESTIONS ARISING UNDER THE PRESIDENT'S UNIFORM ANNUAL AND SICK LEAVE REGULATIONS. YOU HAVE STATED A SERIES OF QUESTIONS NUMBERED FROM (1) TO (4), INCLUSIVE, UNDER THE ANNUAL LEAVE REGULATIONS AND ANOTHER SERIES UNDER QUESTIONS NUMBERED FROM (1) TO (8), INCLUSIVE, UNDER THE SICK LEAVE REGULATIONS. EACH SERIES OF QUESTIONS WILL BE STATED AND ANSWERED SEPARATELY IN THE ORDER PRESENTED.

WITH REFERENCE TO ANNUAL LEAVE THESE QUESTIONS ARE:

(1) IN THE CASE OF AN ADVANCE OF ALL CURRENT ANNUAL LEAVE TO AN EMPLOYEE WHO HAS BEEN IN THE SERVICE FOR FIVE YEARS, IS A DEDUCTION OF THE UNEARNED PORTION OF SUCH LEAVE NECESSARY IN CASE THE EMPLOYEE RESIGNS BEFORE THE EXPIRATION OF THE YEAR? UNDER SECTION 3 OF THE EXECUTIVE ORDER SUCH DEDUCTIONS ARE APPARENTLY NECESSARY AND SECTION 6 APPEARS TO LIMIT SUCH GRANTS TO ACCUMULATED LEAVE PLUS CURRENT ACCRUED LEAVE. WHILE THE GOVERNMENT PRINTING OFFICE HAS NEVER ALLOWED LEAVE IN ADVANCE OF THAT EARNED, IT IS UNDERSTOOD THAT IT HAS BEEN THE PRACTICE IN MANY DEPARTMENTS TO ALLOW ANNUAL LEAVE FOR THE FULL YEAR IN SUCH CASES, AND IF SUCH PRACTICE IS PERMITTED UNDER THE LAW, THE GOVERNMENT PRINTING OFFICE REGULATIONS WILL BE DRAWN ACCORDINGLY.

(2) MAY THE GOVERNMENT PRINTING OFFICE CREDIT AN EMPLOYEE WHO WAS TRANSFERRED INTO THE GOVERNMENT PRINTING OFFICE SUBSEQUENT TO THE PASSAGE OF THE ACT BUT PRIOR TO JULY 1, 1936, WITH ANY ACCUMULATED LEAVE OR CURRENT ACCRUED LEAVE TO HIS CREDIT IN THE DEPARTMENT FROM WHICH HE WAS TRANSFERRED--- IN VIEW OF THE FACT THAT IT HAD BEEN THE ESTABLISHED CUSTOM PRIOR TO THE RECEIPT OF THE PRESENT EXECUTIVE ORDER TO GIVE NO CONSIDERATION TO LEAVE EARNED IN OTHER DEPARTMENTS IN CASES OF THIS KIND?

(3) IS LEAVE TO BE CONFISCATED IN THE CASE OF AN EMPLOYEE INVOLUNTARILY SEPARATED FROM THE SERVICE AS A RESULT OF HIS OWN MISCONDUCT? THIS QUESTION ARISES AS A RESULT OF THE WORDING OF SECTION 7 OF THE EXECUTIVE ORDER.

(4) AS A RESULT OF THE PASSAGE OF THE ACT OF MARCH 14, 1936, ALLOWING ANNUAL LEAVE TO TEMPORARY EMPLOYEES, DOES IT FOLLOW THAT TEMPORARY EMPLOYEES ARE ENTITLED TO MILITARY LEAVE? THIS QUESTION ARISES FROM THE FACT THAT THE COMPTROLLER GENERAL'S DECISION (6 COMP. GEN. 178), HOLDING THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE, IS BASED UPON THE PRINCIPLE THAT A LEAVE OF ABSENCE WITH PAY IS INCONSISTENT WITH TEMPORARY EMPLOYMENT.

SECTIONS 2 AND 3 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7409, DATED JULY 9, 1936, PROVIDE AS FOLLOWS:

SEC. 2. PERMANENT EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE AND WHO DO NOT CONTEMPLATE LEAVING THE SERVICE DURING THE CURRENT CALENDAR YEAR SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY AT ANY TIME DURING SUCH CALENDAR YEAR NOT IN EXCESS OF 26 DAYS, AND IN ADDITION MAY BE GRANTED ACCUMULATED LEAVE, PROVIDED THAT THE TOTAL LEAVE GRANTED AT ANY TIME DURING A CALENDAR YEAR SHALL NOT EXCEED THE AMOUNT OF THE ACCUMULATED LEAVE AND THE CURRENT ACCRUED LEAVE, EXCEPT THAT IN UNUSUALLY MERITORIOUS CASES EMPLOYEES MAY BE GRANTED BOTH ACCUMULATED AND CURRENT ANNUAL LEAVE.

SEC. 3. UNACCRUED LEAVE SHALL BE GRANTED ONLY WITH THE EXPRESS UNDERSTANDING THAT IF SUCH LEAVE IS NOT LATER EARNED DURING THE CALENDAR YEAR, DEDUCTIONS WILL BE MADE FOR THE UNEARNED PORTION FROM ANY SALARY DUE THE EMPLOYEE, OR ANY DEDUCTIONS IN THE RETIREMENT FUND TO THE CREDIT OF THE EMPLOYEE.

QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE, THE LENGTH OF SERVICE BEYOND THE FIRST YEAR BEING IMMATERIAL.

THE UNIFORM ANNUAL LEAVE REGULATIONS ARE SPECIFICALLY MADE EFFECTIVE AS OF JULY 1, 1936. SECTION 20 OF SAID REGULATIONS RATIFIES THE TEMPORARY LEAVE REGULATIONS ISSUED BY THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS UNDER AUTHORITY OF EXECUTIVE ORDER NO. 7231, DATED MARCH 21, 1936, EFFECTIVE PRIOR TO JULY 1, 1936. AS THERE WAS NO PROVISION IN THE TEMPORARY ANNUAL LEAVE REGULATIONS OF THE GOVERNMENT PRINTING OFFICE OR OTHERWISE FOR CREDITING EMPLOYEES TRANSFERRED INTO THE GOVERNMENT PRINTING OFFICE PRIOR TO JULY 1, 1936, WITH LEAVE ACCRUED TO THEIR CREDIT IN THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT FROM WHICH TRANSFERRED, QUESTION (2) IS ANSWERED IN THE NEGATIVE.

SECTION 7 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

THE DATE OF A DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE FIXED TO PERMIT THE ALLOWANCE OF ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.

IT HAS BEEN HELD THAT THE ACT OF MARCH 14, 1936, 49 STAT. 1161, MAKES THE GRANTING OF LEAVE MANDATORY, A-77697, JULY 27, 1936, 16 COMP. GEN. 74. THERE IS NOTHING IN THE ACT EXPRESSLY OR IMPLIEDLY DENYING ACCRUED LEAVE TO EMPLOYEES DISCHARGED FOR CAUSE DUE TO MISCONDUCT. WHILE IT MAY BE IMPLIED FROM SECTION 7 OF THE REGULATIONS, SUPRA, THAT ACCRUED LEAVE IS FOR FORFEITING IN THE CASE OF AN EMPLOYEE INVOLUNTARILY SEPARATED FOR CAUSE DUE TO HIS OWN MISCONDUCT, THERE IS NO EXPRESS DIRECTION THAT THAT BE DONE. THUS THIS SECTION OF THE REGULATIONS IS NOT NECESSARILY TO BE REGARDED AS REQUIRING CONFISCATION OF ACCRUED ANNUAL LEAVE OF AN EMPLOYEE DISCHARGED FOR CAUSE DUE TO HIS OWN MISCONDUCT. IN OTHER WORDS, IT WOULD APPEAR TO BE OPTIONAL WITH THE HEAD OF THE ESTABLISHMENT WHETHER, IN SUCH CASES, THE DISCHARGE BE MADE EFFECTIVE IMMEDIATELY OR AT THE EXPIRATION OF ACCRUED LEAVE. QUESTION (3) IS ANSWERED ACCORDINGLY.

QUESTION (4) IS ANSWERED IN THE NEGATIVE, THE LEAVE ACTS OF MARCH 14, 1936, AND THE UNIFORM LEAVE REGULATIONS NOT BEING DETERMINATIVE OF ANY QUESTION INVOLVING THE GRANTING OF MILITARY LEAVE.

WITH REFERENCE TO THE REGULATIONS COVERING THE APPLICATION OF THE SICK LEAVE LAW, AS OUTLINED IN THE EXECUTIVE ORDER OF JULY 9, 1936, THE FOLLOWING QUESTIONS HAVE ARISEN:

(1) ARE THE ADVANCES MADE UNDER SECTION 3 PRIOR TO JULY 1, 1936, TO BE TAKEN INTO CONSIDERATION IN DETERMINING THE NUMBER OF ADVANCES TO BE ALLOWED DURING THE PRESENT FISCAL YEAR? IN OTHER WORDS, IS AN EMPLOYEE WHO HAD THREE ADVANCES PRIOR TO JULY 1 TO BE DENIED ANY FURTHER ADVANCES FOR THE CURRENT CALENDAR YEAR, NOTWITHSTANDING THE FACT THAT THE ADVANCES WERE FOR SHORT PERIODS, WELL JUSTIFIED UNDER THE LAW, AND THAT THE EMPLOYEE HAD NO KNOWLEDGE THAT SUCH ADVANCES WOULD BE LIMITED TO THREE?

(2) MAY THE GOVERNMENT PRINTING OFFICE--- UNDER THE CONDITIONS OUTLINED IN QUESTION 2 ABOVE--- CREDIT EMPLOYEES TRANSFERRED INTO THE OFFICE WITH THE ACCUMULATED SICK LEAVE TO THEIR CREDIT AT THE TIME THEY ARE TRANSFERRED?

(3) WERE DEDUCTIONS FROM THE RETIREMENT FUND OF EMPLOYEES WHO HAD BEEN ADVANCED SICK LEAVE IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED NECESSARY IN THE CASES OF THOSE EMPLOYEES RETIRED FOR AGE OR DISABILITY OR REDUCTION IN FORCE BETWEEN THE EFFECTIVE DATE OF THE ACT AND JULY 1? UNDER SECTION 10 OF THE EXECUTIVE ORDER, IT IS CLEAR THAT SUCH DEDUCTIONS ARE NOT NECESSARY AFTER JULY 1.

(4) DOES THE LAST SENTENCE OF SECTION 11 OF THE EXECUTIVE ORDER READING "FOR SUCH DAYS AS PER DIEM AND PER HOUR EMPLOYEES WOULD NOT BE IN A PAY STATUS NO SICK LEAVE SHALL BE CHARGE" ABROGATE THE DECISION OF MARCH 27, 1936 (15 COMP. GEN. 866) TO THE PUBLIC PRINTER HOLDING THAT SUNDAYS, HOLIDAYS, AND NON-WORK DAYS ARE CHARGED AS SICK LEAVE UNDER THE ACT OF MARCH 14, 1936? IF IT IS HELD THAT THE DECISION IS ABROGATED, WILL IT BE NECESSARY TO GO BACK OVER THE PAY ROLLS AND LEAVE RECORDS OF THE GOVERNMENT PRINTING OFFICE PRIOR TO JULY 1 TO MAKE THE ADJUSTMENTS NECESSITATED BY A COMPLIANCE WITH SUCH DECISION OR IS THIS SECTION CONTROLLING FROM JULY 1, 1936 ONLY?

(5) HOW MANY DAYS SICK LEAVE MAY BE ALLOWED, UNDER SECTION 14 OF THE EXECUTIVE ORDER, ON THE APPLICANT'S SIGNED STATEMENT UNSUPPORTED BY A CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER FOR THE PERIOD FROM JULY 1 TO DECEMBER 31, IN VIEW OF THE FACT THAT PRIOR TO JULY 1, THE REGULATIONS OF THE GOVERNMENT PRINTING OFFICE DID NOT LIMIT THE NUMBER OF DAYS TAKEN ON PERSONAL CERTIFICATION? IN OTHER WORDS, ARE THE DAYS TAKEN ON PERSONAL CERTIFICATION PRIOR TO JULY 1 TO BE CONSIDERED IN DETERMINING THE NUMBER OF DAYS WHICH CAN BE ALLOWED AFTER JULY 1?

(6) MAY SICK LEAVE BE ADVANCED TO PROBATIONARY EMPLOYEES? IN THIS CONNECTION THE DIFFERENCE IN THE WORDING OF SECTION 2 OF THE ANNUAL LEAVE REGULATIONS WHICH MENTIONS "PERMANENT EMPLOYEES" AND SECTION 1 OF THE SICK LEAVE REGULATIONS WHICH USES THE TERM "EMPLOYEES" UNMODIFIED, AND THE FACT THAT SECTION 17--- PROHIBITING ADVANCES TO TEMPORARY EMPLOYEES--- FAILS TO MENTION PROBATIONARY EMPLOYEES, WOULD SEEM TO INDICATE THAT ADVANCES TO PROBATIONARY EMPLOYEES COULD BE MADE, NOTWITHSTANDING THE FACT THAT THE GOVERNMENT IS NOT PROTECTED BY RETIREMENT DEDUCTIONS.

(7) DOES SECTION 18 REQUIRE ANY ADJUSTMENT OTHER THAN THAT MADE IN ACCORDANCE WITH THE DECISION OF MARCH 27, 1936, TO THE PUBLIC PRINTER WHICH READS IN PART AS FOLLOWS:

"WHILE THE PERIOD OF SERVICE FOR WHICH SICK LEAVE ACCRUES UNDER THE ACT BEGAN JANUARY 1, 1936, AS PROVIDED BY SECTION 2 OF THE ACT, THERE IS NO INDICATION THAT SECTION 3, AUTHORIZING THE ADVANCE OF SICK LEAVE BEYOND ACCRUALS NOT TO EXCEED 30 DAYS, WAS INTENDED TO OPERATE RETROACTIVELY. THEREFORE, IN ANSWER TO QUESTIONS 1 AND 2, YOU ARE ADVISED THAT SICK LEAVE OF ABSENCE--- OTHERWISE ALLOWABLE UNDER THE ACT--- MAY BE SUBSTITUTED FOR SICK LEAVE WITHOUT PAY OR ANNUAL LEAVE TAKEN BY EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE BETWEEN JANUARY 1 AND MARCH 14, 1936, ONLY TO THE EXTENT OF THE SICK LEAVE WHICH HAD ACCUMULATED FOR THE PERIOD OF ABSENCE AT THE RATE OF ONE AND ONE QUARTER DAYS PER MONTH.'

IT IS BELIEVED THAT SECTION 18 OF THE SICK LEAVE REGULATIONS WAS INSERTED IN ORDER TO CARRY OUT THE DECISION AND THAT ITS APPLICATION IS, THEREFORE, LIMITED TO THE SICK LEAVE ACCUMULATED FROM JANUARY 1, 1936, TO DATE OF RETURN TO DUTY FOLLOWING THE PERIOD OF ABSENCE AT THE RATE OF ONE AND ONE- QUARTER DAYS PER MONTH. IT WAS ON THIS BASIS, OF COURSE, THAT THE LEAVE RECORDS, PAY ROLLS AND COST ACCOUNTS HAVE BEEN PREPARED. HOWEVER, IN VIEW OF THE MANNER IN WHICH SECTION 18 IS WORDED, A DOUBT HAS ARISEN AS TO THE ACTION TO BE TAKEN THEREUNDER. FOR YOUR CONSIDERATION IN CONNECTION HEREWITH, THERE ARE ATTACHED HERETO, ALL GOVERNMENT PRINTING OFFICE REGULATIONS RELATING TO THE GRANTING OF SICK LEAVE, SUCH REGULATIONS BEING APPROVED BY SECTION 23 OF THE EXECUTIVE ORDER OF JULY 9, 1936.

(8) DOES SECTION 19 APPLY TO THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE? IT WOULD SEEM THAT IN VIEW OF THE FACT THAT EMPLOYEES OF THIS OFFICE DID NOT HAVE SICK LEAVE PRIOR TO MARCH 14, 1936, THEY COULD NOT TAKE "SICK LEAVE" IN EXCESS OF ONE AND ONE QUARTER DAYS A MONTH. I FEEL THAT THIS SECTION DOES NOT APPLY TO THIS OFFICE AND THAT IT WAS INSERTED TO PROVIDE FOR THE EMPLOYEES--- IN THE DEPARTMENTS IN WHICH SICK LEAVE WAS GRANTED--- WHO HAD USED SICK LEAVE ON THE BASIS OF THE LAWS EXISTING PRIOR TO MARCH 14, 1936.

SECTION 3 OF THE UNIFORM SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7410, DATED JULY 9, 1936, PROVIDES AS FOLLOWS:

IN CASES OF SERIOUS DISABILITY OR AILMENTS, AND WHEN THE EXIGENCIES OF THE SITUATION SO REQUIRE, SICK LEAVE MAY BE ADVANCED NOT IN EXCESS OF 30 DAYS IN ADDITION TO THE UNUSED SICK LEAVE THAT HAS ACCUMULATED TO THE CREDIT OF EMPLOYEES: PROVIDED, THAT SUCH ADVANCES SHALL NOT BE MADE TO ANY EMPLOYEE MORE THAN 3 TIMES DURING ANY ONE CALENDAR YEAR; THAT EVERY CASE OF ADVANCED LEAVE SHALL BE SUPPORTED BY THE CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER; THAT THE TOTAL OF SUCH ADVANCES SHALL NOT EXCEED AT ANY TIME 30 DAYS BEYOND THE ACCUMULATED SICK LEAVE; AND THAT SUCH ADVANCES SHALL BE CHARGED AGAINST SICK LEAVE SUBSEQUENTLY ACCUMULATING.

UNDER THE PLAIN TERMS OF THIS REGULATION ISSUED UNDER THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, WHICH WAS SPECIFICALLY MADE EFFECTIVE AS OF JANUARY 1, 1936, QUESTION (1) MUST BE AND IS ANSWERED IN THE AFFIRMATIVE. IF THE ADVANCE OF SICK LEAVE WAS ACTUALLY NECESSARY PRIOR TO JULY 1, 1936, IT IS ASSUMED THAT LACK OF KNOWLEDGE ON THE PART OF THE EMPLOYEES AS TO WHAT THE TERMS OF THE UNIFORM LEAVE REGULATIONS WOULD BE, WOULD NOT HAVE MADE ANY DIFFERENCE IN THE AMOUNT OF ABSENCE ON ACCOUNT OF ILLNESS.

FOR THE REASONS STATED IN ANSWER TO QUESTION (2), PRESENTED UNDER THE ANNUAL LEAVE REGULATIONS, QUESTION (2) SUPRA, UNDER THE SICK LEAVE REGULATIONS IS ANSWERED IN THE NEGATIVE.

IN THE ABSENCE OF AN ADMINISTRATIVE REGULATION REQUIRING SUCH DEDUCTION, QUESTION (3) IS ANSWERED IN THE NEGATIVE.

SECTION 11 OF THE UNIFORM SICK LEAVE REGULATIONS PROVIDES AS FOLLOWS:

SUNDAYS, HOLIDAYS, AND NONWORK DAYS WITHIN A PERIOD OF SICK LEAVE SHALL BE CHARGED AS SICK LEAVE, EXCEPT WHEN IMMEDIATELY PRECEDING OR FOLLOWING A PERIOD OF SICK LEAVE, IF THE EMPLOYEE WAS IN A PAY STATUS IMMEDIATELY PRIOR TO OR FOLLOWING SUCH SUNDAYS, HOLIDAYS, OR NON-WORK DAYS. FOR SUCH DAYS AS PER DIEM AND PER HOUR EMPLOYEES WOULD NOT BE IN A PAY STATUS, NO SICK LEAVE SHALL BE CHARGED. IN THE DECISION OF MARCH 27, 1936, 15 COMP. GEN. 866, IT WAS HELD AS FOLLOWS (QUOTING FROM THE LAST PARAGRAPH OF THE SYLLABUS):

SUNDAYS, HOLIDAYS, AND NONWORK DAYS ARE CHARGED AS SICK LEAVE UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1162, WHETHER COMPENSATION IS PAID ON AN HOURLY, DAILY, OR OTHER BASIS, BUT SUCH DAYS ARE EXCLUDED WHEN IMMEDIATELY PRECEDING OR FOLLOWING A PERIOD OF SICK LEAVE IF THE EMPLOYEE WAS IN A PAY STATUS IMMEDIATELY PRIOR TO OR IMMEDIATELY FOLLOWING SUCH SUNDAY, HOLIDAY, OR NONWORK DAY.

REFERRING TO QUESTION (4), AS THE REGULATION EXCLUDING FROM SICK LEAVE DAYS ON WHICH PER DIEM AND PER HOUR EMPLOYEES ARE IN A NON-PAY STATUS IS EFFECTIVE ON AND AFTER JULY 1, 1936, NO ADJUSTMENT IS AUTHORIZED OR REQUIRED BY REASON OF THE REGULATION ON ACCOUNT OF SICK LEAVE CHARGED TO EMPLOYEES PRIOR TO JULY 1, 1936, UNDER THE RULE STATED IN THE DECISION OF MARCH 27, 1936, SUPRA. NONWORK DAYS OF PER ANNUM EMPLOYEES OCCURRING DURING AN ABSENCE ON SICK LEAVE ARE, OF COURSE, REQUIRED TO BE INCLUDED IN THE SICK LEAVE.

SECTION 14 OF THE UNIFORM SICK-LEAVE REGULATIONS PROVIDES THAT "FOR PERIODS OF 3 DAYS OR LESS UP TO AN ACCUMULATION OF 12 DAYS IN ANY ONE CALENDAR YEAR THE APPLICANT'S SIGNED STATEMENT ON A PRESCRIBED FORM MAY BE ACCEPTED.' AS THIS REGULATION CLEARLY LIMITS "TO 12 DAYS IN ANY ONE CALENDAR YEAR" THE AMOUNT OF SICK LEAVE THAT MAY BE GRANTED WITHOUT A CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER, THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT ALL SICK LEAVE GRANTED WITHOUT SUCH A CERTIFICATE DURING THE CURRENT CALENDAR YEAR, WHETHER PRIOR OR SUBSEQUENT TO JULY 1, 1936, MUST BE INCLUDED IN APPLYING THE LIMITATION OF 12 DAYS. SEE ANSWER TO QUESTION (1), THIS SERIES. QUESTION (5) IS ANSWERED ACCORDINGLY.

REFERRING TO QUESTION (6), IT IS UNDERSTOOD THE TERM "PROBATIONARY" REFERS TO THE PERIOD OF 6 MONTHS OR MORE THAT A CIVIL-SERVICE EMPLOYEE MUST SERVE PRIOR TO ACQUIRING A SO-CALLED PERMANENT STATUS. PROBATIONARY EMPLOYEES ARE ENTITLED TO SICK LEAVE UNDER THE ACT OF MARCH 14, 1936. BUT AS A PROBATIONARY APPOINTMENT MAY TERMINATE AUTOMATICALLY AT THE EXPIRATION OF THE PROBATIONARY PERIOD, SICK LEAVE SHOULD NOT BE ADVANCED TO PROBATIONARY EMPLOYEES IN EXCESS OF THE AMOUNT THAT WOULD ACCRUE DURING THE PROBATIONARY PERIOD.

SECTION 18 OF THE UNIFORM SICK-LEAVE REGULATIONS PROVIDES AS FOLLOWS:

IN THE CASE OF AN EMPLOYEE WHO WAS NOT ENTITLED TO SICK LEAVE UNDER PRIOR LAW, BUT WHO IS NOW ENTITLED THERETO, SICK LEAVE AS ACCUMULATED MAY BE SUBSTITUTED FOR LEAVE WITHOUT PAY OR ANNUAL LEAVE TAKEN BECAUSE OF ILLNESS BETWEEN JANUARY 1 AND MARCH 14, 1936.

QUESTION (7) IS ANSWERED IN THE NEGATIVE.

SECTION 19 OF THE UNIFORM SICK-LEAVE REGULATIONS PROVIDES AS FOLLOWS:

SICK LEAVE TAKEN IN EXCESS OF 1 1/4 DAYS A MONTH DURING THE PERIOD BETWEEN JANUARY 1 AND MARCH 14, 1936, SHALL BE CHARGED AGAINST SICK LEAVE SUBSEQUENTLY ACCUMULATING.

AS YOU SUGGEST IN STATING QUESTION (8), THIS SECTION OF THE REGULATION HAS NO APPLICATION TO THE GOVERNMENT PRINTING OFFICE.

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

Nov 15, 2017

Nov 14, 2017

Nov 9, 2017

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