A-95413, JULY 6, 1938, 18 COMP. GEN. 13

A-95413: Jul 6, 1938

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WHO IS CHARGEABLE THEREFOR UNDER SECTION 4 OF THE SAID REGULATIONS. SHOULD BE CREDITED WITH PAY UP TO AND INCLUDING THE EFFECTIVE DATE OF RESIGNATION BUT CHARGED ONLY THE EQUIVALENT OF 1 DAY'S PAY FOR EACH DAY CHARGED AGAINST THE UNACCRUED ANNUAL LEAVE ADVANCED TO HIM FOR WHICH HE WAS ENTITLED TO COMPENSATION. ARE FOR APPLICATION ONLY UPON FINAL SEPARATION OF AN EMPLOYEE FROM THE SERVICE AT WHICH TIME THERE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED WHETHER ADVANCED IN ONE OR MORE PERIODS. WHO IS ADVANCED SICK LEAVE UNDER THE UNIFORM SICK LEAVE REGULATIONS. WHO IS UNABLE TO RETURN TO DUTY BECAUSE OF A DISABILITY EVIDENCED BY AN ACCEPTABLE CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

A-95413, JULY 6, 1938, 18 COMP. GEN. 13

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - ADVANCES - CHARGES UPON SEPARATION FROM SERVICE AN EMPLOYEE ADVANCED ANNUAL LEAVE FOR 15 DAYS UNDER THE PROVISIONS OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, WHO RESIGNS BEFORE RETURNING TO DUTY, OR BEFORE THE ADVANCED LEAVE ACCUMULATES, AND WHO IS CHARGEABLE THEREFOR UNDER SECTION 4 OF THE SAID REGULATIONS, SHOULD BE CREDITED WITH PAY UP TO AND INCLUDING THE EFFECTIVE DATE OF RESIGNATION BUT CHARGED ONLY THE EQUIVALENT OF 1 DAY'S PAY FOR EACH DAY CHARGED AGAINST THE UNACCRUED ANNUAL LEAVE ADVANCED TO HIM FOR WHICH HE WAS ENTITLED TO COMPENSATION, WHICH WOULD EXCLUDE SUNDAYS AND HOLIDAYS NOT CHARGED AGAINST ANNUAL LEAVE CREDIT, AND REQUIRE A CHARGE OF 4 HOURS--- IF NOT AN EMPLOYEE ON A 5-DAY WEEK-- FOR A SATURDAY HALF-HOLIDAY. THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS, AND SECTION 11 OF THE SICK LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, REGARDING THE REFUNDING OR NONCHARGING OF EMPLOYEES WITH AMOUNTS PAID AS COMPENSATION FOR PERIODS OF LEAVE ADVANCES, ARE FOR APPLICATION ONLY UPON FINAL SEPARATION OF AN EMPLOYEE FROM THE SERVICE AT WHICH TIME THERE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED WHETHER ADVANCED IN ONE OR MORE PERIODS. AN EMPLOYEE NOT ELIGIBLE FOR DISABILITY RETIREMENT, WHO IS ADVANCED SICK LEAVE UNDER THE UNIFORM SICK LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, AFTER RETURN TO DUTY FROM A PRIOR ADVANCE UNDER THE SAID REGULATIONS FOR THE TREATMENT OF COMPLICATIONS RESULTING FROM THE ORIGINAL ILLNESS, AND WHO IS UNABLE TO RETURN TO DUTY BECAUSE OF A DISABILITY EVIDENCED BY AN ACCEPTABLE CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER, IS NOT REQUIRED UNDER SECTION 11 OF THE SAID REGULATIONS TO REFUND COMPENSATION PAID FOR THE PERIOD OF THE ADVANCE EXCEPT TO THE EXTENT THAT THE ADVANCE MAY BE IN EXCESS OF THAT AUTHORIZED BY THE REGULATIONS AND NOT SUBJECT TO BEING SUBSEQUENTLY EARNED, AND THE FACT THAT THE EMPLOYEE RESIGNED BECAUSE OF THE DISABILITY RATHER THAN BEING DROPPED FROM THE ROLLS BECAUSE OF FAILURE TO RETURN TO DUTY IS IMMATERIAL IN THIS REGARD.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ARCHIVIST, JULY 6, 1938:

LETTER OF MAY 31, 1938, IS AS FOLLOWS:

YOUR DECISION IS REQUESTED ON TWO POINTS IN EXECUTIVE ORDER NO. 7845, AND EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938, RETROACTIVELY EFFECTIVE JANUARY 1, 1938, TO WIT:

SECTION 4 (B), PART II OF REGULATIONS RELATING TO ANNUAL LEAVE STATES: "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 ADVANCED ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. * * * THIS PROVISION SHALL NOT APPLY IN CASES OF DEATH, * * * 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.'

ACCORDING TO OUR INTERPRETATION OF EXISTING COMPTROLLER GENERAL DECISIONS IF AN EMPLOYEE IS ADVANCED ANNUAL LEAVE FOR FIFTEEN DAYS AND RESIGNS BEFORE RETURNING TO DUTY OR BEFORE THE ADVANCED LEAVE ACCUMULATES HE WOULD BE ENTITLED TO NO PAY. HOWEVER, OUR INTERPRETATION OF THE AFOREMENTIONED SECTION OF EXECUTIVE ORDER NO. 7845 ENTITLES HIM TO THE INTERVENING SUNDAYS AND HOLIDAYS.

SECTION 11, PART II, OF REGULATIONS RELATING TO SICK LEAVE STATES: "* * * REFUND SHALL NOT BE REQUIRED IN CASES OF DEATH, * * * 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.'

IS THE LAST SENTENCE OF SECTION 4 (B) PRESCRIBING REGULATIONS RELATING TO ANNUAL LEAVE AND THE PART QUOTED OF SECTION 11 RELATING TO SICK LEAVE TO BE INTERPRETED THAT EXEMPTION FROM REFUND OF ANNUAL OR SICK LEAVE MAY BE ALLOWED ONLY IF THE EMPLOYEE IS UNABLE TO RETURN TO DUTY IMMEDIATELY AFTER A PERIOD OF SICK LEAVE? FOR INSTANCE, WE HAVE AN EMPLOYEE WHO HAS TENDERED HER RESIGNATION EFFECTIVE MAY 15, 1938. SHE WAS ADVANCED SICK LEAVE FOR HER ORIGINAL ILLNESS FROM DECEMBER 6, 1937, TO JANUARY 29, 1938. SHE THEN RETURNED TO DUTY AND WAS ADVANCED SICK LEAVE FROM APRIL 1 TO 9, 1938, FOR TREATMENT OF COMPLICATIONS RESULTING FROM THE ORIGINAL ILLNESS, WHEN SHE RETURNED TO DUTY. SHE HAS NOW BEEN ORDERED BY HER PHYSICIAN AS THE RESULT OF THE ORIGINAL ILLNESS TO DISCONTINUE EMPLOYMENT INDEFINITELY AND SHE DEEMED IT WISER TO RESIGN THAN TO REQUEST AN INDEFINITE LEAVE OF ABSENCE.

IN THE INSTANT CASE OUR INTERPRETATION OF THE AFOREMENTIONED EXECUTIVE ORDER IS THAT THE EMPLOYEE IS NOT LIABLE FOR REFUND OF ADVANCED SICK LEAVE.

IF YOUR DECISION ON THE NEXT ABOVE PARAGRAPH IS IN THE AFFIRMATIVE MAY WE INTERPRET THE CITED SECTIONS GENERALLY THAT EVEN THOUGH AN EMPLOYEE IS NOT CONSIDERED PERMANENTLY DISABLED BUT ONLY INDEFINITELY DISABLED HE IS NOT LIABLE FOR REFUND OF ADVANCED SICK OR ANNUAL LEAVE? IF YOUR DECISIONS ON THE NEXT ABOVE TWO PARAGRAPHS ARE IN THE NEGATIVE PLEASE INTERPRET THE CITED SECTIONS OF EXECUTIVE ORDER NO. 7845 AND EXECUTIVE ORDER NO. 7846.

SECTION 4 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, PROVIDES AS FOLLOWS:

(A) 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 FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO THE CREDIT OF THE EMPLOYEE.

(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 ADVANCED 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.

REFERRING TO THE FIRST QUESTION RELATIVE TO AN EMPLOYEE WHO HAS BEEN "ADVANCED ANNUAL LEAVE FOR 15 DAYS AND RESIGNS BEFORE RETURNING TO DUTY OR BEFORE THE ADVANCED LEAVE ACCUMULATES," WHOM YOU ASSUME "WOULD BE ENTITLED TO NO PAY," YOU ARE ADVISED THAT THE EMPLOYEE WOULD BE ENTITLED, THAT IS, SHOULD BE CREDITED, WITH PAY UP TO AND INCLUDING THE EFFECTIVE DATE OF HIS RESIGNATION, BUT HE SHOULD BE CHARGED THE EQUIVALENT OF 1 DAY'S PAY FOR EACH DAY CHARGED AGAINST THE UNACCRUED ANNUAL LEAVE ADVANCED TO HIM FOR WHICH HE WAS AUTHORIZED TO BE PAID COMPENSATION, EXCLUDING THE INTERVENING SUNDAYS AND HOLIDAYS WHICH WERE NOT CHARGED AGAINST HIS ANNUAL LEAVE CREDIT. SATURDAY SHOULD BE CHARGED AS 4 HOURS (IF NOT AN EMPLOYEE ON A 5- DAY WEEK), GIVING THE EMPLOYEE THE BENEFIT OF THE SATURDAY HALF-HOLIDAY.

SECTION 11 OF THE SICK LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, PROVIDES AS FOLLOWS:

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.

IF THE EMPLOYEE WHOSE CASE IS PRESENTED IN THE SECOND QUESTION, WHO IS UNDERSTOOD NOT TO BE ELIGIBLE FOR DISABILITY RETIREMENT, WAS IN FACT UNABLE TO RETURN TO DUTY BECAUSE OF A DISABILITY EVIDENCED BY AN ACCEPTABLE CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER, THE FACT THAT SHE RESIGNED BECAUSE OF THE DISABILITY RATHER THAN BEING DROPPED FROM THE ROLLS BECAUSE OF FAILURE TO RETURN TO DUTY, AND DOES NOT DEPRIVE HER OF THE BENEFIT OF THE LAST SENTENCE OF THE ABOVE QUOTED SECTION 11 OF THE SICK LEAVE REGULATIONS.

THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS ARE FOR APPLICATION ONLY UPON THE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED TO THE EMPLOYEE WHETHER ADVANCED IN ONE OR MORE PERIODS.

IN THE SECOND CASE YOU PRESENT IT IS STATED THE EMPLOYEE WAS ADVANCED SICK LEAVE FOR HER ORIGINAL ILLNESS FROM DECEMBER 6, 1937, TO JANUARY 29, 1938 (54 DAYS), AND FOR SUBSEQUENT TREATMENT FROM APRIL 1 TO 9, 1938 (9 DAYS). IF THE FIRST PERIOD OF 54 DAYS WAS ALL COVERED BY ADVANCED LEAVE, THAT IS, INCLUDED NO ACCRUED SICK LEAVE, PREVIOUSLY EARNED, THERE WERE ADVANCED 24 MORE DAYS THAN THE STATUTE AND REGULATIONS AUTHORIZE. SEE SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, SECTION 3 OF THE SICK LEAVE REGULATIONS IN EFFECT PRIOR TO JANUARY 1, 1938, AND SECTION 4 OF THE SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938. THAT EVENT THE EXCESS OF 24 DAYS COULD NOT BE SUBSEQUENTLY EARNED AND SHOULD BE CHARGED TO THE EMPLOYEE AS LEAVE WITHOUT PAY. ALSO, IF AT LEAST 30 DAYS OF THE FIRST PERIOD WAS ADVANCED SICK LEAVE, THERE APPEARS TO HAVE BEEN AN EXCESSIVE ADVANCE OF SICK LEAVE DURING THE SECOND PERIOD, AND THERE WOULD BE FOR CHARGING TO THE EMPLOYEE COMPENSATION FOR ANY PERIOD OF ABSENCE FOR WHICH SHE WAS PAID IN EXCESS OF THE MAXIMUM AMOUNT OF ADVANCED SICK LEAVE AUTHORIZED BY THE LAW AND REGULATIONS. HOWEVER, IF THE EMPLOYEE WAS NOT ADVANCED MORE UNEARNED SICK LEAVE, INCLUDING THE TWO PERIODS STATED, THEN AUTHORIZED BY LAW AND REGULATIONS, THE EMPLOYEE IS NOT LIABLE FOR REFUND ON ACCOUNT OF ADVANCED SICK LEAVE.