B-108142, MARCH 27, 1952, 31 COMP. GEN. 485

B-108142: Mar 27, 1952

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LEAVES OF ABSENCE - WHEN-ACTUALLY-EMPLOYED EMPLOYEES - ANNUAL AND SICK LEAVE ACT OF 1951 WHEN-ACTUALLY-EMPLOYED EMPLOYEES FOR WHOM NO REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED ARE NOT ENTITLED TO THE LEAVE BENEFITS OF THE ANNUAL AND SICK LEAVE ACT OF 1951. ALTHOUGH WHEN-ACTUALLY-EMPLOYED EMPLOYEES FOR WHOM NO REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED ARE ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE TO THEIR CREDIT ON THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE ACT OF 1951. PAYMENT FOR SUCH LEAVE IS NOT REQUIRED WHERE A REGULAR TOUR OF DUTY IS PRESCRIBED BEGINNING WITH THE FIRST PAY PERIOD FOLLOWING THE EFFECTIVE DATE OF SAID ACT. WHO RECEIVED A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE TO HIS CREDIT ON THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AND WHO PRIOR TO EXPIRATION OF THE LEAVE PERIOD COVERED BY SAID PAYMENT WAS GIVEN A PRESCRIBED TOUR OF DUTY.

B-108142, MARCH 27, 1952, 31 COMP. GEN. 485

LEAVES OF ABSENCE - WHEN-ACTUALLY-EMPLOYED EMPLOYEES - ANNUAL AND SICK LEAVE ACT OF 1951 WHEN-ACTUALLY-EMPLOYED EMPLOYEES FOR WHOM NO REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED ARE NOT ENTITLED TO THE LEAVE BENEFITS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AND THEREFORE, SAID EMPLOYEES HAVING ACCRUED ANNUAL LEAVE TO THEIR CREDIT ON THE EFFECTIVE DATE OF THE ACT MAY BE CONSIDERED ON THAT DATE HAS HAVING BEEN, IN EFFECT, TRANSFERRED TO A DIFFERENT LEAVE SYSTEM WITHIN CONTEMPLATION OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AND PAID A LUMP-SUM FOR THE ACCRUED ANNUAL LEAVE TO THEIR CREDIT. ALTHOUGH WHEN-ACTUALLY-EMPLOYED EMPLOYEES FOR WHOM NO REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED ARE ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE TO THEIR CREDIT ON THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PAYMENT FOR SUCH LEAVE IS NOT REQUIRED WHERE A REGULAR TOUR OF DUTY IS PRESCRIBED BEGINNING WITH THE FIRST PAY PERIOD FOLLOWING THE EFFECTIVE DATE OF SAID ACT. A WHEN-ACTUALLY-EMPLOYED EMPLOYEE, FOR WHOM NO REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED, WHO RECEIVED A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE TO HIS CREDIT ON THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AND WHO PRIOR TO EXPIRATION OF THE LEAVE PERIOD COVERED BY SAID PAYMENT WAS GIVEN A PRESCRIBED TOUR OF DUTY, IS REQUIRED TO REFUND THAT PORTION OF THE LUMP-SUM PAYMENT COVERING ANNUAL LEAVE IN EXCESS OF THE NUMBER OF WORKDAYS FOR FULL-TIME EMPLOYEES BETWEEN THE DATE THE PAYMENT BECAME DUE AND THE DATE HE BECAME ENTITLED TO EARN LEAVE. WHILE A WHEN-ACTUALLY-EMPLOYED EMPLOYEE, FOR WHOM NO REGULAR TOUR OF DUTY IS PRESCRIBED, DOES NOT EARN AND MAY NOT BE GRANTED SICK LEAVE UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, SAID EMPLOYEE DOES NOT FORFEIT PRIOR ACCRUED SICK LEAVE AND IS, IF SUBSEQUENTLY ASSIGNED TO PRESCRIBED TOUR OF DUTY, ENTITLED TO USE SUCH LEAVE IN ACCORDANCE WITH THE ANNUAL AND SICK LEAVE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 27, 1952:

REFERENCE IS MADE TO THE LETTER OF FEBRUARY 18, 1952, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING DECISION UPON QUESTIONS THEREIN STATED, AS FOLLOWS:

1. SHOULD LUMP-SUM PAYMENTS BE MADE TO W.A.E. EMPLOYEES HAVING ACCRUED ANNUAL LEAVE TO THEIR CREDIT AS OF JANUARY 5 AND FOR WHOM NO TOUR OF DUTY HAS BEEN ESTABLISHED?

2. IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, BUT A TOUR OF DUTY IS ESTABLISHED FOR AN EMPLOYEE EFFECTIVE JANUARY 14, WOULD THIS EMPLOYEE BE GIVEN A LUMP-SUM PAYMENT AS OF JANUARY 5 OR WOULD HIS LEAVE BE AVAILABLE FOR USE IN THE REGULAR MANNER? THIS QUESTION MAY BE ANSWERED BY YOUR DECISION DATED SEPTEMBER 25, 1945 (25 C.G. 290) WHICH STATES THAT LUMP-SUM PAYMENTS NEED NOT BE MADE IN CASES OF THE TRANSFER OF EMPLOYEES FOR SHORT PERIODS TO POSITIONS NOT SUBJECT TO THE LEAVE ACT.

3. IF YOUR ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE AND THE LUMP SUM PAYMENT IS MADE, BUT THE EMPLOYEE IS LATER GIVEN A PRESCRIBED TOUR OF DUTY, WOULD THE EMPLOYEE BE REQUIRED TO REFUND THE PORTION OF THE LUMP-SUM PAYMENT WHICH WOULD NOT HAVE BEEN USED HAD HE BEEN ON LEAVE DURING THE INTERVENING PERIOD?

4.DOES A W.A.E. EMPLOYEE FOR WHOM NO TOUR OF DUTY IS PRESCRIBED LOSE SICK LEAVE ACCRUED TO HIS CREDIT AS OF JANUARY 5 OR MAY HE USE IT IN THE USUAL MANNER? IF THE EMPLOYEE LOSES THE SICK LEAVE, WOULD THERE BE ANY RESTORATION IF HE IS LATER GIVEN A PRESCRIBED TOUR OF DUTY?

IN DECISION OF DECEMBER 14, 1951, 106704, 31 COMP. GEN. 215, REFERRED TO IN THE SUBMISSION, IT WAS HELD, AMONG OTHER THINGS THAT WAE EMPLOYEES ARE NOT ENTITLED TO A GRANT OF ANNUAL LEAVE UNDER THE NEW LEAVE ACT OF OCTOBER 30, 1951, PUBLIC LAW 233, 65 STAT. 679, UNLESS A REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED IN ADVANCE. ACCORDINGLY, AS WAE EMPLOYEES WHO MAY HAVE ACCRUED ANNUAL LEAVE PRIOR TO JANUARY 6, 1952, THE EFFECTIVE DATE OF THE NEW LEAVE ACT, ARE NOT ENTITLED TO EARN OR TAKE ANNUAL LEAVE THEREAFTER IF NO REGULAR TOUR OF DUTY HAS BEEN PRESCRIBED, THEY MAY BE CONSIDERED, WITHIN CONTEMPLATION OF THE LUMP SUM LEAVE PAYMENT ACT, 58 STAT. 845, AS HAVING BEEN, IN EFFECT, TRANSFERRED AT THAT TIME TO A DIFFERENT LEAVE SYSTEM AND MAY BE PAID A LUMP SUM FOR THE ACCRUED ANNUAL LEAVE TO THEIR CREDIT ON THAT DATE. 25 COMP. GEN. 386. QUESTION 1, IS ANSWERED ACCORDINGLY.

IN THE SITUATION PRESENTED UNDER QUESTION 2, NO LUMP-SUM PAYMENT AS OF JANUARY 5, 1952, WOULD BE REQUIRED; HENCE, THE ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT WOULD BE AVAILABLE FOR USE IN THE ORDINARY MANNER. COMP. GEN. 290.

REFERRING TO QUESTION 3--- WHERE A LUMP-SUM PAYMENT IS MADE TO A WAE EMPLOYEE AS OF JANUARY 5, 1952, AND HE LATER IS GIVEN A PRESCRIBED TOUR OF DUTY PRIOR TO THE EXPIRATION OF THE LEAVE PERIOD COVERED BY SUCH PAYMENT, HE WOULD BE REQUIRED TO REFUND THAT PART OF THE LUMP-SUM LEAVE PAYMENT AS COVERED ANNUAL LEAVE IN EXCESS OF THE NUMBER OF WORKDAYS FOR FULL-TIME EMPLOYEES BETWEEN THE DATE THE LUMP-SUM PAYMENT BECAME DUE AND THE DATE HE BECAME ENTITLED TO EARN ANNUAL LEAVE. 27 COMP. GEN. 472.

RESPECTING QUESTION 4--- AS A WAE EMPLOYEE FOR WHOM NO TOUR OF DUTY HAS BEEN PRESCRIBED HAS NO FIXED DAYS OF DUTY AND EARNS COMPENSATION ONLY WHEN ACTUALLY RENDERING SERVICE IT COULD NOT BE SAID THAT HE WAS ABSENT ON ANY PARTICULAR WORKDAY BECAUSE OF ILLNESS RATHER THAN BECAUSE HIS SERVICES WERE NOT REQUIRED FOR THAT DAY AND, ACCORDINGLY, HE PROPERLY COULD NOT BE GRANTED SICK LEAVE. HOWEVER, HE WOULD NOT NECESSARILY FORFEIT THE PRIOR ACCRUED SICK LEAVE IN THAT IF SUBSEQUENTLY ASSIGNED TO A PRESCRIBED TOUR OF DUTY, HIS ACCRUED SICK LEAVE MAY BE USED IN ACCORDANCE WITH THE ANNUAL AND SICK LEAVE REGULATIONS. QUESTION 4 IS ANSWERED ACCORDINGLY.