A-92623, MARCH 31, 1938, 17 COMP. GEN. 795

A-92623: Mar 31, 1938

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AN EMPLOYEE WAS ON LEAVE WITHOUT PAY. IT WAS REPORTED ON THE FIRST WORKING DAY OF THE NEW YEAR THAT EMPLOYEE HAD BEEN SICK FROM THE FIRST DAY OF ANNUAL LEAVE AND WOULD CONTINUE TO BE ABSENT ON ACCOUNT OF SICKNESS. IF EMPLOYEE HAS RETURNED TO "ACTUAL DUTY" SHE LEGALLY MAY BE GRANTED SICK LEAVE WITH PAY FOR SUCH PERIOD IN THE NEW YEAR AS ADMINISTRATIVELY MAY BE FOUND TO HAVE BEEN NECESSITATED BY SICKNESS. IS AS FOLLOWS: THE COMMISSION HAS RECEIVED YOUR LETTER OF MARCH 9. ARE AS FOLLOWS: ON NOVEMBER 26. UPON CONSIDERING THE APPLICATION IT WAS FOUND THAT MISS HEALEY DID NOT HAVE ANNUAL LEAVE TO HER CREDIT TO COVER THAT PERIOD. THE APPLICATION WAS DISAPPROVED AND THE APPLICANT WAS SO ADVISED.

A-92623, MARCH 31, 1938, 17 COMP. GEN. 795

LEAVES OF ABSENCE - SICK - ACT, MARCH 14, 1936 - SUBSTITUTION FOR ANNUAL LEAVE AND LEAVE WITHOUT PAY WHERE, IMMEDIATELY FOLLOWING A PERIOD OF ANNUAL LEAVE, AN EMPLOYEE WAS ON LEAVE WITHOUT PAY, EXTENDING THROUGH THE LAST DAY OF 1937, WHICH HAD BEEN APPLIED FOR AND APPROVED IN ADVANCE, AND IT WAS REPORTED ON THE FIRST WORKING DAY OF THE NEW YEAR THAT EMPLOYEE HAD BEEN SICK FROM THE FIRST DAY OF ANNUAL LEAVE AND WOULD CONTINUE TO BE ABSENT ON ACCOUNT OF SICKNESS, NEITHER THE ANNUAL LEAVE NOT THE LEAVE WITHOUT PAY CAN NOW BE CHARGED AS SICK LEAVE WITH PAY, THE APPLICATION FOR THE SUBSTITUTION FOR THE ANNUAL LEAVE NOT HAVING BEEN MADE WITHIN TWO DAYS AFTER EXPIRATION OF THE ANNUAL LEAVE PERIOD AS PROVIDED BY SECTION 15 OF THE UNIFORM SICK LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938, AND THERE BEING NO AUTHORITY UNDER THE SAID REGULATIONS OR THE REGULATIONS IN FORCE FROM JANUARY 1, 1938, FOR SUBSTITUTING SICK LEAVE FOR LEAVE WITHOUT PAY SO REQUESTED AND GRANTED, BUT IF EMPLOYEE HAS RETURNED TO "ACTUAL DUTY" SHE LEGALLY MAY BE GRANTED SICK LEAVE WITH PAY FOR SUCH PERIOD IN THE NEW YEAR AS ADMINISTRATIVELY MAY BE FOUND TO HAVE BEEN NECESSITATED BY SICKNESS, SUBJECT TO THE PROVISIONS OF THE CURRENT REGULATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, MARCH 31, 1938:

YOUR LETTER OF MARCH 16, 1938, IS AS FOLLOWS:

THE COMMISSION HAS RECEIVED YOUR LETTER OF MARCH 9, 1938, REFERENCE A- 92623, IN WHICH YOU REQUEST A REPORT AND ADMINISTRATIVE RECOMMENDATION IN RESPECT TO A CLAIM FILED BY MARY A. HEALEY, AN EMPLOYEE OF THE COMMISSION, FOR SALARY COVERING THE PERIOD DECEMBER 29, 1937, TO FEBRUARY 1, 1938.

THE FACTS IN RESPECT TO THIS CASE, AS DISCLOSED BY THE RECORDS OF THE COMMISSION, ARE AS FOLLOWS:

ON NOVEMBER 26, 1937, MISS HEALEY SUBMITTED AN APPLICATION FOR ANNUAL LEAVE FOR SIX DAYS, DECEMBER 27, 1937, TO JANUARY 4, 1938, INCLUSIVE. UPON CONSIDERING THE APPLICATION IT WAS FOUND THAT MISS HEALEY DID NOT HAVE ANNUAL LEAVE TO HER CREDIT TO COVER THAT PERIOD, AND THE APPLICATION WAS DISAPPROVED AND THE APPLICANT WAS SO ADVISED. A NEW APPLICATION WAS RECEIVED ON NOVEMBER 30, 1937, REQUESTING ANNUAL LEAVE FOR 1 1/2 DAYS, NAMELY DECEMBER 27, 1937, AND A HALF-DAY DECEMBER 28, AND 3 1/2 DAYS OF LEAVE WITHOUT PAY COVERING A HALF-DAY ON DECEMBER 28 TO DECEMBER 31, 1937. THIS APPLICATION WAS APPROVED SHORTLY THEREAFTER AND PRIOR TO THE DATE THE PERIOD OF LEAVE STARTED.

ON DECEMBER 27, 1937, A TELEGRAM WAS RECEIVED FROM MISS HEALEY FROM HER HOME IN BOSTON, WHICH READ,"MY MOTHER DIED THIS MORNING.'

ON JANUARY 3, 1938, A NOTE WAS ADDRESSED BY DR. FRANCIS J. CALLANAN TO MISS HEALEY'S OFFICIAL SUPERIOR, MR. FRANK A. CARDILLO, DEPUTY COMMISSIONER, READING AS FOLLOWS: "MISS MARY HEALEY, OF HILLSIDE STREET, BOSTON, IS UNDER MY CARE. SHE HAS HAD A RATHER SEVERE NERVOUS BREAKDOWN, BROUGHT ON BY THE DEATH OF HER MOTHER, AND IS UNABLE TO WORK. I HAVE ADVISED HER TO REMAIN AWAY FROM WORK UNTIL FEBRUARY FIRST.'

THE ABOVE-MENTIONED LETTER WAS RECEIVED ON JANUARY 4, 1938, AND WAS THE FIRST ADVICE RECEIVED SHOWING THAT MISS HEALEY WAS UNABLE TO RETURN TO DUTY ON ACCOUNT OF ILLNESS. IN RESPONSE TO HIS REQUEST THE DEPUTY COMMISSIONER WAS ADVISED THAT ACCORDING TO SECTION 16, E.O. 7410, SICK LEAVE COULD NOT BE GRANTED AFTER A PERIOD OF LEAVE WITHOUT PAY AT THE END OF A CALENDAR YEAR UNLESS AND UNTIL THERE IS A RETURN TO DUTY (COMP. GEN. VOLUME 10, PAGE 102).

ON JANUARY 8, 1938, A FURTHER STATEMENT WAS RECEIVED FROM DR. CALLANAN, READING,"SUBMITTING A SUPPLEMENTARY STATEMENT ON THE CONDITION OF MISS MARY HEALEY, ABOUT WHOM I WROTE YOU ON JANUARY 3RD, I WOULD LIKE TO MAKE THE STATEMENT THAT MISS HEALEY HAS BEEN UNDER MY CARE SINCE THE MORNING OF DECEMBER 27TH. IF YOU WOULD LIKE TO HAVE ME DO SO, I WILL HAVE MADE AN AFFIDAVIT TO THIS EFFECT.'

UPON RECEIPT OF THE LAST INFORMATION CONSIDERATION WAS GIVEN TO THE GRANTING OF SICK LEAVE FROM DECEMBER 27, 1937, TO JANUARY 31, 1938, AND DECISION WAS MADE AGAINST IT FOR THE FOLLOWING EASONS:

1. REQUEST FOR A DEFINITE PERIOD OF LEAVE WITHOUT PAY FROM DECEMBER 28 TO DECEMBER 31, 1937, WAS MADE IN ADVANCE AND APPROVED BY THE COMMISSION.

2. NOTIFICATION OF ABSENCE ON ACCOUNT OF SICKNESS WAS NOT RECEIVED UNTIL JANUARY 8, 1938.

3. SECTION 15. E.O. 7410, APPARENTLY DOES NOT APPLY TO THIS CASE SINCE THIS EMPLOYEE WAS ON ANNUAL LEAVE ONLY FOR 1 1/2 DAYS.

4. SECTION 16 OF THE EXECUTIVE ORDER APPARENTLY APPLIES IN SUCH CASES.

IT APPEARS FROM THE STATEMENT QUOTED IN YOUR LETTER TO THE COMMISSION THAT MISS HEALEY CONTENDS SHE WAS NOT ON ANNUAL LEAVE OR LEAVE WITHOUT PAY, AND THAT HER SICK LEAVE SHOULD HAVE STARTED ON DECEMBER 27, 1937. THE COMMISSION WOULD BE GLAD TO ACCEPT THIS VIEW AND APPROVE LEAVE OF ABSENCE WITH PAY ON ACCOUNT OF SICKNESS FOR THE PERIOD THIS EMPLOYEE WAS INCAPACITATED PROVIDED THE GENERAL ACCOUNTING OFFICE WILL NOT QUESTION THE PROPRIETY OF THE PAYMENT OF SALARY TO MISS HEALEY FOR SUCH PERIOD. VIEW OF THE UNCERTAINTY CONCERNING THE RIGHT TO MAKE SUCH PAYMENT, THE COMMISSION SUGGESTED TO THIS EMPLOYEE THAT CLAIM FOR SALARY FOR THIS PERIOD BE FILED WITH THE GENERAL ACCOUNTING OFFICE.

IN RESPONSE TO YOUR REQUEST FOR THE RECOMMENDATION OF THE COMMISSION, YOU ARE ADVISED THAT THE COMMISSION RECOMMENDS ALLOWANCE OF THE CLAIM IN ORDER THAT THE EMPLOYEE MAY RECEIVE PAY FOR THE PERIOD SHE WAS ABSENT FROM DUTY ON ACCOUNT OF PERSONAL ILLNESS, PROVIDED SUCH ACTION IS NOT INCONSISTENT WITH THE LAW AND REGULATIONS GOVERNING SICK LEAVE.

SECTION 15 OF THE UNIFORM SICK LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938, PROVIDED AS FOLLOWS:

WHEN SICKNESS CONTINUING FOR MORE THAN 5 DAYS OCCURS WITHIN A PERIOD OF ANNUAL LEAVE, THE PERIOD OF ILLNESS MAY, UPON PRESENTATION OF THE CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER, BE CHARGED AS SICK LEAVE, AND THE CHARGE AGAINST ANNUAL LEAVE GRANTED REDUCED ACCORDINGLY. NO SUCH CHARGE AGAINST SICK LEAVE SHALL BE MADE FOR ILLNESS WHICH DOES NOT LAST MORE THAN 5 DAYS. APPLICATION FOR SUCH SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE SHALL BE MADE WITHIN 2 DAYS AFTER THE EXPIRATION OF THE ANNUAL LEAVE PERIOD. * * *

SECTION 17 OF THE UNIFORM SICK LEAVE REGULATIONS IN FORCE FROM JANUARY 1, 1938, EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938, THE SAME AS SECTION 16 OF THE UNIFORM SICK LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938, PROVIDED AS FOLLOWS:

SEC. 16. SICK LEAVE MAY NOT BE GRANTED FOR A PERIOD IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS, UNLESS AND UNTIL THERE HAS BEEN A RETURN TO ACTUAL DUTY, NOR MAY SUCH LEAVE WITHOUT PAY BE CONVERTED INTO SICK LEAVE.

THIS EMPLOYEE WAS ON ANNUAL LEAVE DECEMBER 27 AND THE FIRST HALF OF DECEMBER 28. UNDER SECTION 15 OF THE SICK LEAVE REGULATIONS, ABOVE QUOTED, THAT PERIOD CANNOT NOW BE CHARGED AS SICK LEAVE AS REQUESTED BY THE EMPLOYEE FOR THE REASON THAT THE APPLICATION FOR THE SUBSTITUTION WAS NOT MADE WITHIN 2 DAYS AFTER THE EXPIRATION OF THE ANNUAL LEAVE PERIOD.

THE EMPLOYEE HAD APPLIED FOR AND HAD BEEN GRANTED LEAVE WITHOUT PAY FOR THE SECOND HALF OF DECEMBER 28 TO AND INCLUDING DECEMBER 31, 1937. THERE IS NO AUTHORITY IN EITHER THE OLD OF THE NEW SICK LEAVE REGULATIONS FOR SUBSTITUTING SICK LEAVE FOR LEAVE WITHOUT PAY SO REQUESTED AND GRANTED. NO PART OF THE ABSENCE FROM DECEMBER 27 TO 31, 1937, BOTH DATES INCLUSIVE, WAS BECAUSE OF OR DUE TO SICKNESS OR DISABILITY OF THE EMPLOYEE AS SHE PREVIOUSLY HAD BEEN GRANTED LEAVE OF ABSENCE FOR THAT ENTIRE PERIOD AT HER OWN REQUEST AND NOT BECAUSE OF SICKNESS OR DISABILITY.

SINCE HER ABSENCE SUBSEQUENT TO DECEMBER 31, 1937, ON ACCOUNT OF SICKNESS FIRST REPORTED JANUARY 3, 1938, IMMEDIATELY FOLLOWED A PERIOD OF ABSENCE IN A NONPAY STATUS, UNDER THE PROVISIONS OF SECTION 16 OF THE OLD REGULATIONS AND 17 OF THE NEW REGULATIONS, THE LEAVE WITHOUT PAY (DECEMBER 28, LAST HALF, TO AND INCLUDING DECEMBER 31, 1937) MAY NOT NOW "BE CONVERTED INTO SICK LEAVE," AND SICK LEAVE WITH PAY MAY NOT BE GRANTED FOR ANY PERIOD SUBSEQUENT TO DECEMBER 31, 1937, UNLESS AND UNTIL THERE HAS BEEN AN ACTUAL RETURN TO DUTY.

HOWEVER, IF THIS EMPLOYEE HAS SINCE RETURNED TO "ACTUAL DUTY" SHE LEGALLY MAY BE GRANTED SICK LEAVE WITH PAY FOR SUCH PERIOD OF ABSENCE BEGINNING JANUARY 1, 1938, AS THE COMMISSION MAY FIND WAS NECESSITATED BY SICKNESS OF THE EMPLOYEE SUBJECT, OF COURSE, TO THE PROVISIONS OF SECTIONS 3, 4, 5, 6, 12, 14, AND 15 OF THE REGULATIONS RELATING TO SICK LEAVE AS PRESCRIBED BY EXECUTIVE ORDER NO. 7846 OF MARCH 21, 1938, EFFECTIVE JANUARY 1, 1938. IF AND WHEN SUCH SICK LEAVE WITH PAY IS SO GRANTED PAYMENT THEREFOR WILL BE AUTHORIZED.