A-55178, MAY 12, 1934, 13 COMP. GEN. 347

A-55178: May 12, 1934

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LEAVE OF ABSENCE - SICK - TEMPORARY EMPLOYEES AN EMPLOYEE APPOINTED UNDER RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS IS CONSIDERED A TEMPORARY EMPLOYEE AND NOT ENTITLED DURING THE PERIOD OF SUCH EMPLOYMENT TO LEAVE OF ABSENCE WITH PAY. AS FOLLOWS: IT IS REQUESTED THAT RULING BE GIVEN AS TO WHETHER LEAVE OF ABSENCE WITH PAY MAY BE ALLOWED UNDER THE CIRCUMSTANCES OUTLINED BELOW. THE FOLLOWING IS QUOTED FROM THE REGULATIONS OF THE CORPS OF ENGINEERS (PARAGRAPH 1091.6. THESE REGULATIONS ARE CONSIDERED MODIFIED BY THE LEGISLATION WHICH REDUCED AMOUNT OF ANNUAL LEAVE ALLOWABLE TO AN EMPLOYEE TO 15 DAYS IN A CALENDAR YEAR. SO THAT THE LEAVE ALLOWABLE ACTUALLY IS LIMITED TO 30 DAYS'"SICK LEAVE" AND THAT AMOUNT OF ANNUAL LEAVE WHICH MAY HAVE ACCRUED TO THE CREDIT OF THE EMPLOYEE UNDER THE TERMS OF SECTION 215 OF THE LEGISLATIVE APPROPRIATION ACT OF JUNE 30.

A-55178, MAY 12, 1934, 13 COMP. GEN. 347

LEAVE OF ABSENCE - SICK - TEMPORARY EMPLOYEES AN EMPLOYEE APPOINTED UNDER RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS IS CONSIDERED A TEMPORARY EMPLOYEE AND NOT ENTITLED DURING THE PERIOD OF SUCH EMPLOYMENT TO LEAVE OF ABSENCE WITH PAY. HOWEVER, SHOULD HE BE GIVEN A PERMANENT APPOINTMENT IMMEDIATELY UPON THE TERMINATION OF THE TEMPORARY ONE, HIS SERVICES FOR LEAVE PURPOSES MAY BE REGARDED AS THOUGH ALL RENDERED UNDER A PERMANENT APPOINTMENT, AND HE MAY BE PAID FOR TIME ABSENT WITHOUT PAY DUE TO SICK LEAVE ACCRUING DURING THE CALENDAR YEAR IN WHICH THE TEMPORARY SERVICE AND ABSENCE TOOK PLACE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MAY 12, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 17, 1934, AS FOLLOWS:

IT IS REQUESTED THAT RULING BE GIVEN AS TO WHETHER LEAVE OF ABSENCE WITH PAY MAY BE ALLOWED UNDER THE CIRCUMSTANCES OUTLINED BELOW.

THE FOLLOWING IS QUOTED FROM THE REGULATIONS OF THE CORPS OF ENGINEERS (PARAGRAPH 1091.6, ORDERS AND REGULATIONS). THESE REGULATIONS ARE CONSIDERED MODIFIED BY THE LEGISLATION WHICH REDUCED AMOUNT OF ANNUAL LEAVE ALLOWABLE TO AN EMPLOYEE TO 15 DAYS IN A CALENDAR YEAR, SO THAT THE LEAVE ALLOWABLE ACTUALLY IS LIMITED TO 30 DAYS'"SICK LEAVE" AND THAT AMOUNT OF ANNUAL LEAVE WHICH MAY HAVE ACCRUED TO THE CREDIT OF THE EMPLOYEE UNDER THE TERMS OF SECTION 215 OF THE LEGISLATIVE APPROPRIATION ACT OF JUNE 30, 1932.

THE FOLLOWING IS QUOTED FROM THE REGULATIONS OF THE CORPS OF ENGINEERS (PARAGRAPH 1091.6, ORDERS AND REGULATIONS):

"1091.6 * * *

"/C) IN CASES OF SUCH SICKNESS AS IN THE JUDGMENT OF THE EMPLOYING OFFICER REQUIRE THE ADVICE OF A PHYSICIAN, TO EMPLOY ONE, AND TO ACT UPON HIS ADVICE AS TO THE NECESSARY MEDICAL SURGICAL, AND HOSPITAL ATTENDANCE, TREATMENT, SUPPLIES AND SERVICE REQUIRED; AND IF THE CASE REQUIRE IT, TO PLACE THE EMPLOYEE IN A HOSPITAL, AND IF THERE BE NO HOSPITAL WITHIN REACH MAINTAINED BY THE UNITED STATES AT WHICH THE PATIENT CAN BE RECEIVED AND CARED FOR WITHOUT CHARGE OR AT SUCH REDUCED RATES AS MAY WARRANT THE EXPENSE OF SENDING THE PATIENT THERETO, OR IF ILLNESS OR INJURY IS OF SUCH CRITICAL NATURE AS TO REQUIRE IMMEDIATE ACTION IN ORDER TO SAVE LIFE, CONSTITUTING AN EXTREME EMERGENCY AND AFFORDING NO TIME FOR AGREEMENT OR ARRANGEMENTS IN ADVANCE, THEN HE MAY BE PLACED IN ANY HOSPITAL OR SANITARIUM WHICH THE EMPLOYING OFFICER MAY SELECT, AND THE EMPLOYING OFFICER IS AUTHORIZED TO PAY THE EXPENSE, AT REASONABLE RATES, FOR A REASONABLE PERIOD, NOT EXCEEDING 60 DAYS, WHILE THE EMPLOYEE IS UNABLE TO RESUME WORK OR TO GO HIS WAY; AND IF SUCH EMPLOYEE BE IN THE CLASSIFIED CIVIL SERVICE OR BE REGULARLY AND CONTINUOUSLY EMPLOYED THOUGH NOT IN THE CLASSIFIED CIVIL SERVICE HE MAY BE ALLOWED FULL PAY DURING SUCH SICKNESS, PROVIDED THAT THE PERIOD OF SUCH ABSENCE ADDED TO ALL OTHER PREVIOUS PERIODS OF ABSENCE WITH PAY DURING THE CALENDAR YEAR SHALL NOT EXCEED 60 DAYS IN THAT YEAR, AND PROVIDED THAT THE ABSENCE IS ACCOUNTED FOR TO THE SATISFACTION OF THE PROPER OFFICER BY THE CERTIFICATE OF THE ATTENDING PHYSICIAN; AND ANY EMPLOYEE NOT REGULARLY AND CONTINUOUSLY EMPLOYED, MAY UNDER LIKE CIRCUMSTANCES BE ALLOWED NOT TO EXCEED 30 DAYS' LEAVE WITH PAY ON ACCOUNT OF SICKNESS DURING A CALENDAR YEAR.'

MR. WILLIAM F. FALLON WAS APPOINTED TO THE POSITION OF FIREMAN (MARINE) IN THE ENGINEER DEPARTMENT AT LARGE, SAVANNAH, GEORGIA, ON SEPTEMBER 3, 1929, AND WAS EMPLOYED INTERMITTENTLY IN THIS POSITION UNTIL JULY 13, 1931, WHEN HE WAS DISCHARGED WITHOUT PREJUDICE.

IN JUNE 1932 THE CIVIL SERVICE COMMISSION INFORMED THIS OFFICE THAT APPOINTMENTS NO LONGER WOULD BE PERMITTED TO THE POSITION OF FIREMAN (MARINE) AND OILER UNDER PARAGRAPH 12, SUBDIVISION I, SCHEDULE A, CIVIL- SERVICE RULES. RECOMMENDATION THEREUPON WAS MADE BY THIS DEPARTMENT FOR THE CLASSIFICATION UNDER THE CIVIL SERVICE OF ALL EMPLOYEES HOLDING POSITIONS OF FIREMAN (MARINE) AND OILER AT THE TIME OF THE ANNOUNCEMENT OF THE COMMISSION THAT FURTHER APPOINTMENTS WOULD NOT BE PERMITTED UNDER SCHEDULE A.

MR. FALLON WAS NOT AMONG THE EMPLOYEES WHO WERE IN THE SERVICE IN JUNE 1932. HE RETURNED TO THE SERVICE ON SEPTEMBER 1, 1932, WHEN HE WAS EMPLOYED IN TEMPORARY STATUS AS OILER, PENDING CLASSIFICATION UNDER CIVIL- SERVICE RULES, OR PENDING THE CERTIFICATION OF ELIGIBLES. IT IS LEARNED INFORMALLY FROM THE CIVIL SERVICE COMMISSION THAT BECAUSE MR. FALLON WAS NOT IN THE SERVICE AT THE TIME THE ANNOUNCEMENT OF THE COMMISSION ABOVE REFERRED TO WAS MADE, HIS CLASSIFICATION UNDER THE CIVIL SERVICE CANNOT BE APPROVED. IT IS EXPECTED, THEREFORE, THAT HIS PRESENT TEMPORARY EMPLOYMENT AS OILER WILL BE TERMINATED AT AN EARLY DATE AND THAT HE WILL BE GIVEN EMPLOYMENT IN AN UNCLASSIFIED POSITION.

IN ACCORDANCE WITH RULING OF THE COMPTROLLER GENERAL, VOLUME 6, PAGE 266, AN EMPLOYEE SERVING IN TEMPORARY STATUS FOR A DEFINITE PERIOD OF ONE YEAR OR LESS, PENDING CERTIFICATION OF ELIGIBLES, MAY NOT BE ALLOWED LEAVE OF ABSENCE WITH PAY. IN THE CASE OF MR. FALLON, HOWEVER, EMPLOYMENT IN TEMPORARY STATUS HAS EXCEEDED THE PERIOD OF ONE YEAR AND WAS NOT MADE FOR A DEFINITE PERIOD OF TIME. UPON SEPARATION FROM HIS TEMPORARY EMPLOYMENT HE WILL BE EMPLOYED IMMEDIATELY IN AN UNCLASSIFIED POSITION AS INDICATED ABOVE.

MR. FALLON WAS ABSENT ON ACCOUNT OF ILLNESS FROM NOVEMBER 1 TO DECEMBER 2, 1933, INCLUSIVE. A RULING IS REQUESTED AS TO WHETHER, SINCE HE IS A FIELD EMPLOYEE, AND SINCE HIS EMPLOYMENT WITH THE DEPARTMENT MAY BE EXPECTED TO CONTINUE FOR AN INDEFINITE PERIOD OF TIME, ALTHOUGH IN A DIFFERENT POSITION FROM THAT NOW HELD, HE MAY BE ALLOWED LEAVE OF ABSENCE WITH PAY UNDER THE REGULATIONS QUOTED IN PARAGRAPH TWO ABOVE.

VOUCHER COVERING PAYMENT FOR SUCH LEAVE IS INCLOSED.

IN THE DECISION IN 6 COMP. GEN. 266, REFERRED TO IN YOUR SUBMISSION, IT WAS STATED:

EMPLOYEES APPOINTED UNDER SECTION 1 OF RULE VIII OF THE CIVIL SERVICE RULE FOR A DEFINITE PERIOD OR SUBJECT TO A MAXIMUM LIMITATION OF ONE YEAR OR LESS, PENDING CERTIFICATION OF ELIGIBLES, ARE TEMPORARY EMPLOYEES AND ARE NOT ENTITLED TO LEAVE OF ABSENCE UNDER SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316.

THE REFERENCE TO 1 YEAR OR LESS IN THE ABOVE DECISION WAS COUPLED WITH AND USED AS AN ILLUSTRATION OF TEMPORARY APPOINTMENTS FOR DEFINITE PERIODS, THAT IS, APPOINTMENTS IN WHICH THE PERIOD OF EMPLOYMENT IS DEFINITELY STATED, AND HAD NO REFERENCE TO THE ACTUAL DURATION OF TEMPORARY EMPLOYMENT. IN 12 COMP. GEN. 431, IT WAS STATED:

AN APPOINTMENT MADE UNDER A CIVIL-SERVICE RULE OR REGULATION SPECIFICALLY CLASSIFYING THE POSITION AS TEMPORARY, SUCH AS RULE VIII, ENTITLED "TEMPORARY APPOINTMENTS," SHOULD BE REGARDED AS TEMPORARY IN APPLYING LEAVE LAWS AND REGULATIONS.

IT WOULD APPEAR FROM YOUR SUBMISSION THAT MR. FALLON IS AT PRESENT HOLDING AN APPOINTMENT MADE UNDER RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS, WHICH POSITION MUST ACCORDINGLY BE CONSIDERED AS TEMPORARY. DURING THE CONTINUANCE OF SUCH TEMPORARY APPOINTMENT HE IS NOT ENTITLED TO LEAVE OF ABSENCE, EITHER SICK OR ANNUAL. HOWEVER, SHOULD HE BE GIVEN A PERMANENT APPOINTMENT FOLLOWING IMMEDIATELY UPON THE TERMINATION OF HIS TEMPORARY APPOINTMENT, HIS SERVICES FOR LEAVE PURPOSES MAY THEN BE REGARDED AS THOUGH THE SERVICE UNDER THE TEMPORARY AND PERMANENT APPOINTMENTS HAD ALL BEEN UNDER A PERMANENT APPOINTMENT AND HE MAY BE PAID FOR THE TIME ABSENT WITHOUT PAY DUE TO SICKNESS TO THE EXTENT THAT THE ABSENCE COULD HAVE BEEN COVERED BY SICK LEAVE ACCRUING FOR THE CALENDAR YEAR ENDING DECEMBER 31, 1933, IN ACCORDANCE WITH EXECUTIVE ORDER NO. 6021, FEBRUARY 9, 1933; 13 COMP. GEN. 237; A-54436, APRIL 10, 1934.