B-137947, DECEMBER 8, 1958, 38 COMP. GEN. 421

B-137947: Dec 8, 1958

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CIVILIAN PERSONNEL - RECREDIT OF PRIOR SICK LEAVE - BREAK IN SERVICE - CALENDAR WEEKS ALTHOUGH IN THE DETERMINATION OF A BREAK IN SERVICE OF NOT MORE THAN 52 CONTINUOUS CALENDAR WEEKS FOR RECREDITING SICK LEAVE UPON THE REEMPLOYMENT OF FORMER EMPLOYEES A STRICT INTERPRETATION OF THE TERM "CALENDAR WEEKS" DOES NOT PERMIT THE EXCLUSION OF NONWORKDAYS INTERVENING BETWEEN THE EXPIRATION OF 52 CALENDAR WEEKS AND THE DAY THE REAPPOINTMENT IS EFFECTED. PROVIDES AS FOLLOWS: UPON REEMPLOYMENT OF AN EMPLOYEE SUBJECT TO THIS ACT WHO WAS SEPARATED ON OR AFTER JANUARY 6. YOU SAY THAT AN EMPLOYEE WHO WAS SEPARATED ON FRIDAY. IS CONTENDING THAT HER BREAK IN SERVICE DID NOT EXCEED 52 CALENDAR WEEKS SINCE (1) THE LEGAL DEFINITION OF "CALENDAR WEEK" (WHEN NOT OTHERWISE DEFINED IN THE CONTEXT) IS SUNDAY THROUGH SATURDAY.

B-137947, DECEMBER 8, 1958, 38 COMP. GEN. 421

CIVILIAN PERSONNEL - RECREDIT OF PRIOR SICK LEAVE - BREAK IN SERVICE - CALENDAR WEEKS ALTHOUGH IN THE DETERMINATION OF A BREAK IN SERVICE OF NOT MORE THAN 52 CONTINUOUS CALENDAR WEEKS FOR RECREDITING SICK LEAVE UPON THE REEMPLOYMENT OF FORMER EMPLOYEES A STRICT INTERPRETATION OF THE TERM "CALENDAR WEEKS" DOES NOT PERMIT THE EXCLUSION OF NONWORKDAYS INTERVENING BETWEEN THE EXPIRATION OF 52 CALENDAR WEEKS AND THE DAY THE REAPPOINTMENT IS EFFECTED, THERE WOULD BE NO OBJECTION TO AN AMENDMENT TO THE LEAVE REGULATIONS TO PERMIT IN THE FUTURE THE DISREGARD OF NONWORKDAYS AT THE END OF 52 CALENDAR WEEKS OR PREFERABLY TO SUBSTITUTE THE TERM "ONE YEAR" FOR "52 CONTINUOUS CALENDAR WEEKS.'

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 8, 1958:

YOUR LETTER OF NOVEMBER 14, 1958, REQUESTS OUR ADVICE AS TO WHETHER WE "WOULD OBJECT TO RECREDIT OF SICK LEAVE" UNDER SECTION 30.702 (A) OF THE LEAVE REGULATIONS "ON THE BASIS THAT A BREAK IN SERVICE WHICH EXCEEDED 52 WEEKS ONLY BY ONE OR TWO NONWORKDAYS AT THE END OF THE PERIOD SHOULD NOT BE CONSIDERED A BREAK OF MORE THAN 52 WEEKS.'

SECTION 30.702 (A) OF THE LEAVE REGULATIONS ISSUED BY THE COMMISSION PURSUANT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061, PROVIDES AS FOLLOWS:

UPON REEMPLOYMENT OF AN EMPLOYEE SUBJECT TO THIS ACT WHO WAS SEPARATED ON OR AFTER JANUARY 6, 1952, WITHOUT A BREAK IN SERVICE, OR A BREAK OF NOT MORE THAN 52 CONTINUOUS CALENDAR WEEKS, THE EMPLOYEE'S SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO HIS ACCOUNT.

YOU SAY THAT AN EMPLOYEE WHO WAS SEPARATED ON FRIDAY, JULY 13, 1956, BUT REEMPLOYED ON MONDAY, JULY 15, 1957, IS CONTENDING THAT HER BREAK IN SERVICE DID NOT EXCEED 52 CALENDAR WEEKS SINCE (1) THE LEGAL DEFINITION OF "CALENDAR WEEK" (WHEN NOT OTHERWISE DEFINED IN THE CONTEXT) IS SUNDAY THROUGH SATURDAY, (2) THE FIRST CALENDAR WEEK OF HER BREAK IN SERVICE THEREFORE BEGAN SUNDAY JULY 15, 1956, AND (3) HER REEMPLOYMENT OCCURRED ON THE FIRST WORKDAY OF THE 53D CALENDAR WEEK.

WE FEEL THAT IN THE ABSENCE OF A DEFINITION OF "CALENDAR WEEK" IN THE LEAVE REGULATIONS THE TERM MIGHT BE GIVEN ITS NORMALLY ACCEPTED MEANING, NAMELY, AS RUNNING FROM SUNDAY THROUGH SATURDAY. SEE WORDS AND PHRASES, PERMANENT EDITION, VOLUME 6, UNDER THE HEADING " CALENDAR WEEK.' COMPARE THE DEFINITION OF THAT TERM IN SECTION 25.11 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS CONCERNING STEP-INCREASES IN GRADES. HOWEVER, IF WE APPLY A STRICTLY LEGAL MEANING TO THE TERM " CALENDAR EEK" WE CANNOT WITH CONSISTENCY AGREE THAT NONWORKDAYS INTERVENING BETWEEN THE EXPIRATION OF 52 CALENDAR WEEKS AND THE DAY AN EMPLOYEE'S REAPPOINTMENT IN THE FEDERAL SERVICE IS EFFECTED MAY BE DISREGARDED IN DETERMINING WHETHER 52 CALENDAR WEEKS HAVE EXPIRED. SEE 33 COMP. GEN. 241. THE FACT THAT IT MAY BE A PRACTICE OF AGENCIES TO EFFECT APPOINTMENTS ON MONDAY AND SEPARATIONS ON FRIDAY IS IMMATERIAL, THERE BEING NO PROHIBITION AGAINST EFFECTING SUCH APPOINTMENTS ON NONWORKDAYS. THEREFORE, THE EMPLOYEE IN QUESTION IS NOT ENTITLED TO A RECREDIT OF SICK LEAVE UNDER THE ABOVE-QUOTED REGULATION.

OF COURSE, THERE WOULD BE NO OBJECTION TO YOUR COMMISSION'S AMENDING THE LEAVE REGULATIONS TO PROVIDE THAT IN FUTURE NONWORKDAYS AT THE END OF 52 CALENDAR WEEKS SHALL BE DISREGARDED FOR PURPOSES OF RECREDITING OF SICK LEAVE. IT IS OBSERVED THAT UNDER THE REGULATIONS HERE IN QUESTION IT IS POSSIBLE THAT WORKDAYS AS WELL AS NONWORKDAYS PRECEDING THE SUNDAY FOLLOWING A SEPARATION MAY BE IGNORED. THEREFORE, WE WOULD SUGGEST THAT CONSIDERATION BE GIVEN TO THE USE OF THE TERM "ONE YEAR" INSTEAD OF "52 CONTINUOUS CALENDAR WEEKS.'

WE HAVE TAKEN NOTE OF THE COMMENTS OF MRS. EDITH S. RAUBAUGH IN THE COPY OF HER LETTER ENCLOSED WITH YOUR LETTER OF DECEMBER 2, 1958. HOWEVER, WE DO NOT REGARD HER FURTHER COMMENTS OR ARGUMENTS CONCERNING PAY PERIODS AS HAVING ANY RELATION TO THE TERM "52 CONTINUOUS CALENDAR WEEKS" AS USED IN THE LEAVE REGULATIONS.