A-3460, JULY 1, 1924, 4 COMP. GEN. 5

A-3460: Jul 1, 1924

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PROVIDED HE IS NOT IN RECEIPT OF DISABILITY COMPENSATION AT THAT TIME. 1924: I HAVE YOUR LETTER OF JUNE 13. A REGULAR EMPLOYEE IS ABSENT FROM DUTY BECAUSE OF ILLNESS IN A NONPAY STATUS FROM APRIL 1ST OF ONE YEAR TO JANUARY 1ST OF THE NEXT SUCCEEDING YEAR: IS THIS EMPLOYEE ENTITLED TO THE FULL 10 DAYS SICK LEAVE OF ABSENCE WITH PAY ACCRUING FOR THE NEW FISCAL YEAR TO BE GRANTED IMMEDIATELY ON THE COMMENCEMENT OF THE NEW FISCAL YEAR. OR WILL THE EMPLOYEE ONLY BE ENTITLED TO SICK LEAVE FOR THAT FISCAL YEAR UPON HIS RESUMPTION OF SERVICE. WILL HE BE ENTITLED TO THE FULL 10 DAYS. WHO IS ABSENT FROM DUTY BECAUSE OF SUCH DISABILITY FROM JULY 1ST TO JUNE 30TH NEXT SUCCEEDING. WOULD HE BE ENTITLED TO RECEIVE THE FULL 15 DAYS ANNUAL LEAVE OF ABSENCE WITH PAY AND THE 10 DAYS SICK LEAVE OF ABSENCE WITH PAY THAT OTHERWISE WOULD HAVE ACCRUED AND BEEN ALLOWABLE WERE HE ABLE TO PERFORM SERVICE AND ON DUTY DURING THAT PERIOD?

A-3460, JULY 1, 1924, 4 COMP. GEN. 5

LEAVE OF ABSENCE AT BEGINNING OF FISCAL YEAR - POSTAL EMPLOYEES AN EMPLOYEE OF THE POSTAL SERVICE WHO HAS BEEN ABSENT WITHOUT PAY FOR LESS THAN ONE YEAR DUE TO ILLNESS MAY BE GRANTED, AT THE BEGINNING OF A NEW FISCAL YEAR, THE FULL ANNUAL LEAVE FOR THE NEW FISCAL YEAR WITH PAY, AND ALSO ALL SICK LEAVE ACCRUED AND UNUSED FOR THE THREE-YEAR PERIOD AS PROVIDED IN THE ACT OF JUNE 19, 1922, 42 STAT. 660, PROVIDED HE IS NOT IN RECEIPT OF DISABILITY COMPENSATION AT THAT TIME; AN EMPLOYEE RECEIVING DISABILITY COMPENSATION CAN NOT SUSPEND OR WAIVE SUCH COMPENSATION IN ORDER TO RECEIVE HIS REGULAR COMPENSATION FOR SUCH ANNUAL AND SICK LEAVE.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JULY 1, 1924:

I HAVE YOUR LETTER OF JUNE 13, 1924, REQUESTING DECISION OF THREE QUESTIONS AS FOLLOWS:

1. A REGULAR EMPLOYEE IS ABSENT FROM DUTY BECAUSE OF ILLNESS IN A NONPAY STATUS FROM APRIL 1ST OF ONE YEAR TO JANUARY 1ST OF THE NEXT SUCCEEDING YEAR: IS THIS EMPLOYEE ENTITLED TO THE FULL 10 DAYS SICK LEAVE OF ABSENCE WITH PAY ACCRUING FOR THE NEW FISCAL YEAR TO BE GRANTED IMMEDIATELY ON THE COMMENCEMENT OF THE NEW FISCAL YEAR, OR WILL THE EMPLOYEE ONLY BE ENTITLED TO SICK LEAVE FOR THAT FISCAL YEAR UPON HIS RESUMPTION OF SERVICE, AND WILL HE BE ENTITLED TO THE FULL 10 DAYS, OR ENTITLED TO ONLY A PRO RATA OF 10 DAYS FROM JANUARY 1ST TO JUNE 30TH NEXT SUCCEEDING?

2. IN THE SAME CIRCUMSTANCES OF ABSENCE, AS INDICATED IN NO. 1, WOULD THE EMPLOYEE BE ENTITLED TO FULL 15 DAYS ANNUAL LEAVE OF ABSENCE WITH PAY COMMENCING FROM JULY 1ST, OR WOULD HE BE ENTITLED TO FULL 15 DAYS LEAVE OF ABSENCE WITH PAY ON HIS RESUMPTION OF SERVICE JANUARY 1ST, OR WOULD HE ONLY BE ENTITLED TO A PRO RATA OF 1 1/4 DAYS FROM JANUARY 1ST TO JUNE 30TH NEXT SUCCEEDING?

3. IN THE CASE OF A REGULAR EMPLOYEE DISABLED IN THE PERFORMANCE OF HIS DUTY AND UNDER COMPENSATION BY THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, WHO IS ABSENT FROM DUTY BECAUSE OF SUCH DISABILITY FROM JULY 1ST TO JUNE 30TH NEXT SUCCEEDING, WOULD HE BE ENTITLED TO RECEIVE THE FULL 15 DAYS ANNUAL LEAVE OF ABSENCE WITH PAY AND THE 10 DAYS SICK LEAVE OF ABSENCE WITH PAY THAT OTHERWISE WOULD HAVE ACCRUED AND BEEN ALLOWABLE WERE HE ABLE TO PERFORM SERVICE AND ON DUTY DURING THAT PERIOD?

THE ACT OF JULY 28, 1916, 39 STAT. 413, PROVIDES IN PART AS FOLLOWS:

THAT THE POSTMASTER GENERAL SHALL NOT APPROVE OR CONTINUE ANY RULE OR REGULATION WHICH TERMINATES THE EMPLOYMENT OF ANY EMPLOYEE BY REASON OF ABSENCE ON ACCOUNT OF ILLNESS FOR A PERIOD OF LESS THAN ONE YEAR, * * *.

THE ACT OF JUNE 5, 1920, 41 STAT. 1052, AS AMENDED BY THE ACT OF JUNE 19, 1922, 42 STAT. 660, PROVIDES AS FOLLOWS:

HEREAFTER EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, EACH FISCAL YEAR, AND SICK LEAVE WITH PAY AT THE RATE OF TEN DAYS A YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, TO BE CUMULATIVE FOR A PERIOD OF THREE YEARS, BUT NO SICK LEAVE WITH PAY IN EXCESS OF THIRTY DAYS SHALL BE GRANTED DURING ANY THREE CONSECUTIVE YEARS. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS AND IF MORE THAN TWO DAYS THE APPLICATION THEREFOR SHALL BE ACCOMPANIED BY A PHYSICIAN'S CERTIFICATE.

THE PHRASE "LESS THAN ONE YEAR" USED IN THE ACT OF JULY 28, 1916, SUPRA, FIXES A PERIOD OF TIME WITHOUT REFERENCE TO FISCAL OR CALENDAR YEAR, THAT IS, THE ABSENCE MAY BEGIN AND END AT ANY TIME. DURING ANY ABSENCE OF "LESS THAN ONE YEAR" ON ACCOUNT OF ILLNESS PERSONS IN THE POSTAL SERVICE REMAIN ON THE ROLLS AND RETAIN THE STATUS OF "EMPLOYEES" AS CONTEMPLATED BY THE LEAVE ACT OF JUNE 19, 1922, SUPRA. ACCORDINGLY SUCH AUTHORIZED ABSENCE WITHOUT PAY OF LESS THAN ONE YEAR BECAUSE OF ILLNESS MAY BE COUNTED IN COMPUTING THE RIGHT TO ANNUAL AND SICK LEAVE, THE STATUS OF EMPLOYEE" NOT HAVING BEEN LOST. THE FACT THAT DURING A PORTION OF A FISCAL YEAR AN EMPLOYEE IS IN A NON-PAY STATUS BECAUSE OF PERSONAL ILLNESS DOES NOT DEFEAT THE RIGHT TO LEAVE GRANTED BY THE STATUTE FOR THAT FISCAL YEAR, NOR REQUIRE A PRORATING OF THE TOTAL LEAVE TO COVER THE PORTION OF THE YEAR IN A PAY STATUS.

IN QUESTIONS 1 AND 2, ASSUMING THAT THE EMPLOYEE WAS NOT ENTITLED TO DISABILITY COMPENSATION, THERE WOULD BE AVAILABLE FOR THE EMPLOYEE THE FULL 10 DAYS' SICK LEAVE OF ABSENCE WITH PAY AND THE FULL 15 DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY FROM JULY 1 OF THE SECOND FISCAL YEAR ALTHOUGH ABSENT UNTIL THE FOLLOWING JANUARY 1 BECAUSE OF ILLNESS. 27 COMP. DEC. 583; 2 COMP. GEN. 701. BEING ALREADY AWAY FROM DUTY ON ACCOUNT OF ILLNESS THE EMPLOYEE WOULD BE ENTITLED TO PAY FOR A PERIOD OF 25 DAYS, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, BEGINNING JULY 1 OF THE SECOND FISCAL YEAR. THE EMPLOYEE, OF COURSE, WOULD NOT BE ENTITLED TO ANY FURTHER SICK OR ANNUAL LEAVE WITH PAY DURING THAT FISCAL YEAR AFTER RETURN TO DUTY JANUARY 1. COMP. GEN. 245; 3 ID. 20.

SECTION 7 AND 8 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDE AS FOLLOWS:

SEC. 7. THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.

SEC. 8. THAT IF AT THE TIME THE DISABILITY BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY, SUBJECT TO THE APPROVAL OF THE HEAD OF THE DEPARTMENT, USE SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS COMPENSATION SHALL BEGIN ON THE FOURTH DAY OF DISABILITY AFTER THE ANNUAL OR SICK LEAVE HAS CEASED.

IN QUESTION THREE THE EMPLOYEE WOULD NOT BE ENTITLED TO EITHER ANNUAL OR SICK LEAVE WITH PAY FOR ANY PERIOD HE IS IN RECEIPT OF, OR ENTITLED TO, COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT. BUT IF NOT ENTITLED TO COMPENSATION UNDER SAID ACT AT THE CLOSE OF THE FISCAL YEAR PRECEDING THE FISCAL YEAR IN QUESTION, THEN, UNDER SECTION 8 OF SAID ACT THE EMPLOYEE, SUBJECT TO THE APPROVAL OF THE POSTMASTER GENERAL, COULD BE PAID FROM JULY 1 FOR ALL ACCRUED SICK LEAVE CUMULATED AND UNUSED DURING THE PERIOD OF THREE YEARS AS PROVIDED IN THE ACT OF JUNE 19, 1922, INCLUDING THAT FISCAL YEAR, 3 COMP. GEN. 20, AND THE 15 DAYS' ANNUAL LEAVE DUE HIM FOR THAT FISCAL YEAR. IN SUCH A CASE PAYMENTS OF DISABILITY COMPENSATION WOULD BEGIN FOUR DAYS SUBSEQUENT TO THE EXPIRATION OF SUCH SICK AND ANNUAL LEAVE. THE LAW DOES NOT CONTEMPLATE OR AUTHORIZE DISCONTINUANCE OF PAYMENT OF DISABILITY COMPENSATION AT BEGINNING OF FISCAL YEAR IN ORDER THAT PAYMENT MAY BE MADE FOR LEAVE OF ABSENCE. LEAVE OF ABSENCE, SICK OR ANNUAL, WITH PAY, MAY BE GRANTED AT THE BEGINNING ONLY OF A PERIOD OF ABSENCE ON ACCOUNT OF A DISABILITY FOR WHICH PAYMENT OF DISABILITY COMPENSATION IS AUTHORIZED.