A-94536, JULY 6, 1938, 18 COMP. GEN. 10

A-94536, JULY 6, 1938, 18 COMP. GEN. 10

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - ADVANCES - CHARGES UPON SEPARATION FROM SERVICE A PER DIEM EMPLOYEE ON A 5-DAY WORK WEEK, WHO IS ADVANCED ANNUAL LEAVE UNDER THE PROVISIONS OF SECTION 4 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, AND WHO RESIGNS PRIOR TO HAVING EARNED ANNUAL LEAVE EQUIVALENT TO THE ADVANCE, IS NOT REQUIRED TO REFUND MORE THAN ACTUALLY PAID HIM FOR THE PERIOD COVERED BY THE UNEARNED OR EXCESS LEAVE, AND THEREFORE NEED NOT MAKE REFUND FOR SATURDAYS OR OTHER ADMINISTRATIVE NONWORK DAYS INVOLVED FOR WHICH HE WAS NOT PAID. 16 COMP. GEN. 769 AND UNIFORM ANNUAL LEAVE REGULATIONS IN EFFECT PRIOR TO JANUARY 1, 1938, DISTINGUISHED, AND 17 COMP. GEN. 906, AMPLIFIED. PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, REPEALS THE ACT OF JANUARY 6, 1885, U.S.C., TITLE 5, SEC. 86, WHICH GRANTED GRATUITY PAY FOR HOLIDAYS, AND HENCE GRATUITY PAY FOR HOLIDAYS IS NO LONGER A VESTED RIGHT OF PER DIEM EMPLOYEES WHO NOW ARE ENTITLED TO PAY FOR HOLIDAYS ONLY UNDER AND SUBJECT TO THE CONDITIONS OF THE SAID JOINT RESOLUTION. A PER DIEM EMPLOYEE ON A 5-DAY WORK WEEK WHO IS ADVANCED SICK LEAVE UNDER THE UNIFORM SICK LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, AND WHO RESIGNS PRIOR TO HAVING EARNED SICK LEAVE EQUIVALENT TO THE ADVANCE, IS REQUIRED, UNDER SECTION 11 OF THE SAID REGULATIONS, TO MAKE REFUND OF THE ENTIRE AMOUNT PAID FOR THE PERIOD OF EXCESS SICK LEAVE, REGARDLESS OF HOLIDAYS, SUNDAYS, SATURDAYS, OR OTHER NONWORK DAYS OCCURRING WITHIN SUCH PERIOD. 17 COMP. GEN. 906, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 6, 1938:

YOUR LETTER OF JUNE 1, 1938 (FILE BG-CH), IS AS FOLLOWS:

IN YOUR DECISION TO THE SECRETARY OF THE NAVY, A-94536, UNDER DATE OF MAY 4, 1938, IT IS HELD THAT ABSENCES ON CERTAIN DAYS, E.G., ADMINISTRATIVE NON-WORK DAYS, OCCURRING WITHIN A PERIOD OF LEAVE OF A PER DIEM EMPLOYEE, ARE TO BE CHARGED AGAINST THE STATUTORY GRANTS OF "LEAVE WITH PAY," ALTHOUGH NO COMPENSATION SHALL BE PAID FOR THE LEAVE SO CHARGED; ALSO, THAT HOLIDAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE ARE TO BE CHARGED AGAINST SICK LEAVE OF PER DIEM EMPLOYEES, ALTHOUGH GRATUITY PAY FOR HOLIDAYS IS A VESTED RIGHT OF PER DIEM EMPLOYEES.

IN VIEW OF THE RULES LAID DOWN, A QUESTION ARISES RELATIVE TO THE COMPUTATION OF THE AMOUNT OF THE REFUND AN EMPLOYEE SHALL BE REQUIRED TO MAKE WHEN HE IS SEPARATED FROM THE SERVICE, SUBJECT TO THE REFUND REQUIREMENTS OF SECTIONS FOUR AND ELEVEN OF EXECUTIVE ORDERS 7845 AND 7846, RESPECTIVELY.

FOR INSTANCE, ASSUME A PER DIEM EMPLOYEE ON A FIVE-DAY WORK WEEK FROM MONDAY TO FRIDAY, INCLUSIVE, AND HAVING NO ACCUMULATED ANNUAL LEAVE TO HIS CREDIT ON JANUARY 1, 1939, IS GRANTED ANNUAL LEAVE FOR 1/6 OF A DAY ON JANUARY 12, 1939, TWO DAYS' LEAVE ON JANUARY 18 AND 19 AND THREE DAYS' LEAVE, JANUARY 27 THROUGH JANUARY 30, 1939, INCLUSIVE. THE CHARGE AGAINST THE ANNUAL LEAVE ACCOUNT OF THE EMPLOYEE DUE TO THE RULE LAID DOWN IN YOUR DECISION, SUPRA, WILL BE 6 1/6 DAYS, AND THEREFORE, THE EMPLOYEE HAS BEEN ADVANCED THREE LEAVE DAYS, ALTHOUGH PAID FOR ONLY TWO OF SUCH LEAVE DAYS. THIS EMPLOYEE SUBMITS HIS RESIGNATION AS OF THE CLOSE OF BUSINESS JANUARY 31, 1939. IT IS NOT BELIEVED EQUITABLE TO REQUIRE A REFUND OF ONE DAY'S PAY FOR SATURDAY, JANUARY 28, 1939, CHARGED AS LEAVE WITH PAY, BECAUSE THE EMPLOYEE RECEIVED NO COMPENSATION FOR THAT DAY.

SIMILARLY, ASSUME A PER DIEM EMPLOYEE ON A FIVE-DAY WORK WEEK, MONDAY TO FRIDAY, INCLUSIVE, HAVING NO SICK LEAVE TO HIS CREDIT ON JANUARY 1, 1939, IS GRANTED SICK LEAVE OF NINE DAYS FROM FEBRUARY 15 TO 23, 1939, BOTH DATES INCLUSIVE. THIS EMPLOYEE SUBMITS HIS RESIGNATION AS OF FEBRUARY 28, 1939. IT IS NOT BELIEVED EQUITABLE TO REQUIRE THE EMPLOYEE TO MAKE REFUND FOR ONE-HALF DAY, FEBRUARY 17, AND FOR SIX DAYS, FEBRUARY 18 TO 23, INCLUSIVE, BECAUSE HE WILL HAVE RECEIVED ONLY FOUR AND ONE-HALF DAYS' PAY FOR THE SIX AND ONE-HALF PAY PERIOD.

FURTHER, FEBRUARY 22 BEING A HOLIDAY FOR PER DIEM EMPLOYEES (23 STAT. 516), AND THE COMPTROLLER GENERAL HAVING RULED ON AUGUST 9, 1932 (12 C.G. 204), QUOTING FROM THE SYLLABUS, THAT---

"PER DIEM EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WORKING FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS, AS DISTINGUISHED FROM THOSE EMPLOYED FROM DAY TO DAY OR FOR A DEFINITELY FIXED BRIEF PERIOD, WHETHER ON A 5-DAY OR 5 1/2-DAY WEEK, ARE ENTITLED TO PAY FOR STATUTORY HOLIDAYS OCCURRING DURING AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY, BUT NOT DURING UNAUTHORIZED LEAVE OF ABSENCE WITHOUT PAY.'

IT WOULD APPEAR INCONSISTENT TO REQUIRE THE EMPLOYEE TO MAKE REFUND FOR THE HOLIDAY, FEBRUARY 22, SINCE THE PERIOD OF SICK LEAVE CANCELLED BY THE REFUND WILL BE IN EFFECT AUTHORIZED LEAVE WITHOUT PAY.

SPECIFICALLY, THE FOLLOWING QUESTIONS ARE SUBMITTED:

(A) SHALL A PER DIEM EMPLOYEE WHO RESIGNS BE REQUIRED TO MAKE REFUND FOR SATURDAYS AND OTHER ADMINISTRATIVE NON-WORK DAYS FOR WHICH HE WAS NOT PAID, OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE?

(B) SHALL A PER DIEM EMPLOYEE WHO RESIGNS BE REQUIRED TO MAKE REFUND FOR SUNDAYS AND SATURDAYS AND OTHER ADMINISTRATIVE NON-WORK DAYS FOR WHICH HE WAS NOT PAID, AND FOR LEGAL HOLIDAYS FOR WHICH HE RECEIVED GRATUITY PAY, OCCURRING WITHIN A PERIOD OF SICK LEAVE?

SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, PROVIDE, RESPECTIVELY, AS FOLLOWS:

(B) IN CASES OF SEPARATIONS WHERE EMPLOYEES ARE INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCE ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. ABSENCES FOR FRACTIONAL PARTS OF A DAY WILL BE CHARGED PROPORTIONATELY. THIS PROVISION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

SEC. 11. IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE, AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE, INCLUSIVE OF SUNDAYS AND HOLIDAYS. ABSENCES FOR FRACTIONAL PARTS OF A DAY WILL BE CHARGED PROPORTIONATELY. REFUND SHALL NOT BE REQUIRED IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, WHICH SHALL BE EVIDENCED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

PRIOR TO THE PROMULGATION OF THE NEW LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, CONTAINING THE ABOVE QUOTED SECTIONS, THE RULE IN FORCE FOR COMPUTING THE AMOUNT TO BE CHARGED AN EMPLOYEE FOR UNEARNED OR EXCESS ANNUAL OR SICK LEAVE ADVANCED, REQUIRED THAT THE ENTIRE PERIOD OF SUCH ABSENCE BE REGARDED AS LEAVE WITHOUT PAY AUTHORIZED IN ADVANCE. 16 COMP. GEN. 769. THE NEW REGULATIONS REQUIRE NO CHANGE IN THAT RULE INSOFAR AS SICK LEAVE IS CONCERNED, BUT DO CHANGE THE RULE WITH RESPECT TO SUNDAYS AND HOLIDAYS WITHIN A PERIOD OF ADVANCED ANNUAL LEAVE FOR WHICH REFUND IS REQUIRED. HOWEVER, IT IS NOT TO BE PRESUMED THAT THE PROVISIONS OF SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS WERE INTENDED TO REQUIRE THAT THERE BE REFUNDED BY THE EMPLOYEE ANY MORE THAN HAD BEEN ACTUALLY PAID TO HIM FOR THE PERIOD COVERED BY THE UNEARNED OR EXCESS LEAVE. HENCE, THE "1 DAY'S PAY" TO BE CHARGED "FOR EACH DAY OF ABSENCE, EXCLUSIVE OF SUNDAYS AND OLIDAYS" WILL BE REGARDED, FOR THE PURPOSE OF MAKING CHARGES OR REFUNDS FOR THE EXCESS ANNUAL LEAVE, AS THE AMOUNT, IF ANY, PAID FOR SUCH DAY.

PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, PROVIDES AS FOLLOWS:

THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

YOU WILL NOTE THAT THIS STATUTE REPEALS THE ACT OF JANUARY 6, 1885, CITED BY YOU, WHICH GRANTED GRATUITY PAY FOR HOLIDAYS. HENCE, "GRATUITY PAY FOR HOLIDAYS" IS NO LONGER "A VESTED RIGHT OF PER DIEM EMPLOYEES.' SUCH EMPLOYEES ARE NOW ENTITLED TO PAY FOR HOLIDAYS ONLY UNDER AND SUBJECT TO THE CONDITIONS OF THE JOINT RESOLUTION OF JUNE 29, 1938. HENCE, IN APPLYING SECTION 11 OF THE SICK LEAVE REGULATIONS, THE FACT THAT A HOLIDAY OCCURS WITHIN THE PERIOD OF EXCESS SICK LEAVE IS NOT FOR CONSIDERATION AS, UNDER THE TERMS OF THE REGULATION, THE EMPLOYEE IS REQUIRED TO REFUND THE ENTIRE AMOUNT "PAID HIM FOR THE PERIOD OF SUCH EXCESS.' THUS IN THE SECOND CASE PRESENTED IN YOUR LETTER, SUPRA, THE EMPLOYEE WOULD BE ENTITLED TO NO PAY WHATEVER FOR THE PERIOD BEGINNING WITH THE SECOND HALF OF FRIDAY, THE 17TH, AND ENDING WITH THURSDAY, THE 23D.

REFERRING TO THE FIRST CASE PRESENTED, THE CHARGE AGAINST THE ANNUAL LEAVE ACCOUNT OF THE EMPLOYEE WOULD BE 5 1/6 DAYS, NOT 6 1/6 DAYS AS YOU STATE. THE EMPLOYEE WOULD EARN DURING JANUARY 1939, 2 1/6 DAYS ANNUAL LEAVE. HENCE, THERE WOULD BE A PERIOD OF 3 DAYS ADVANCED OR UNEARNED ANNUAL LEAVE, TO WIT, FRIDAY, SATURDAY, AND MONDAY, JANUARY THE 27TH, 28TH, AND 30TH, BUT IF THE EMPLOYEE IS NOT PAID FOR SATURDAY, JANUARY 28, 1939, AS YOU STATE, THE CHARGE AGAINST THE EMPLOYEE UNDER SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS WOULD BE THE 2 DAYS' PAY PAID FOR THE PERIOD OF THE EXCESS ANNUAL LEAVE.

THE EMPLOYEE IN THE SECOND CASE PRESENTED WOULD EARN 2 1/2 DAYS SICK LEAVE DURING JANUARY AND FEBRUARY 1939. THE REFUND REQUIRED TO BE MADE BY THIS EMPLOYEE UNDER SECTION 11 OF THE SICK LEAVE REGULATIONS WOULD BE 4 1/2 DAYS' PAY, WHICH WOULD BE THE ENTIRE AMOUNT THAT WOULD BE PAYABLE FOR THE PERIOD BEGINNING WITH THE SECOND HALF OF FRIDAY, THE 17TH, AND ENDING WITH THURSDAY, THE 23D, IF THE EMPLOYEE WERE ON DUTY DURING SAID PERIOD.

QUESTION (A) IS ANSWERED IN THE NEGATIVE.

REFERRING TO QUESTION (B), THE PER DIEM EMPLOYEE IS REQUIRED TO MAKE REFUND OF THE ENTIRE AMOUNT PAID FOR THE PERIOD OF EXCESS SICK LEAVE, REGARDLESS OF THE HOLIDAYS, SUNDAYS, SATURDAYS, OR OTHER NON-WORK DAYS OCCURRING WITHIN SUCH PERIOD.