B-148236, JANUARY 16, 1964, 43 COMP. GEN. 511

B-148236, JANUARY 16, 1964, 43 COMP. GEN. 511

DETAILS - STATES, MUNICIPALITIES, ETC. - FEDERAL EMPLOYEE BENEFITS. DETAILS - STATES, MUNICIPALITIES, ETC. - LOCAL HOLIDAYS ALTHOUGH EMPLOYEES DETAILED TO STATE, MUNICIPAL, AND OTHER NONPROFIT INSTITUTIONS UNDER THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, MAY CONTINUE TO BE PAID FROM FEDERAL APPROPRIATED FUNDS AND TO RETAIN ALL FEDERAL EMPLOYEE BENEFITS, THE ACT HAVING AUTHORIZED THE DETAIL OF EMPLOYEES AND PAYMENT FROM FEDERAL APPROPRIATED FUNDS, LOCAL RATHER THAN FEDERAL SUPERVISION IS IMMATERIAL, WHEN DETAILED AND PLACED IN A LEAVE WITHOUT PAY STATUS, THE EMPLOYEES ARE ENTITLED ONLY TO THE FEDERAL EMPLOYEE BENEFITS PRESCRIBED IN 42 U.S.C. 215 (D/--- BASIC PAY, PROMOTION, RETIREMENT, INJURY OR DEATH COMPENSATION, AND THE BENEFITS PROVIDED IN SECTION 213--- BUT THEY ARE NOT ENTITLED TO ANNUAL AND SICK LEAVE (5 U.S.C. 2061, ET SEQ.), A 40-HOUR WORKWEEK (5 U.S.C. 944), AND OVERTIME AND HOLIDAY PAY (5 U.S.C. 911, 922), ENTITLEMENT TO RETURN TO THE FEDERAL SERVICE WITHOUT LOSS OF, OR DETRIMENT TO THE DETAILED EMPLOYEES STATUS AS FEDERAL EMPLOYEES NOT CREATING ENTITLEMENT TO RETAIN ALL THE RIGHTS AND BENEFITS OF FEDERAL EMPLOYEES DURING THE LEAVE WITHOUT PAY PERIOD. EMPLOYEES OF THE PUBLIC HEALTH SERVICE DETAILED TO STATE, MUNICIPAL, AND OTHER NONPROFIT INSTITUTIONS, PURSUANT TO 42 U.S.C. 215, WHO ARE PAID BY THE FEDERAL GOVERNMENT MAY BE EXCUSED FROM DUTY ON A STATE OR LOCAL HOLIDAY ON WHICH THEIR NORMAL DUTIES MAY NOT PROPERLY BE PERFORMED; HOWEVER, IF REQUIRED TO WORK ON SUCH HOLIDAYS, EVEN THOUGH OTHER FEDERAL EMPLOYEES SIMILARLY SITUATED MAY HAVE BEEN EXCUSED, THERE IS NO AUTHORITY FOR PAYMENT OF EXTRA COMPENSATION TO THEM, AND, ALTHOUGH THE EMPLOYEES EXCUSED FROM WORK ON THE STATE OR LOCAL HOLIDAY NEED NOT BE CHARGED LEAVE, IF THE EMPLOYEES ARE NOT EXCUSED, THEY ARE ONLY ENTITLED TO THEIR REGULAR COMPENSATION.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JANUARY 16, 1964:

WE REFER TO YOUR LETTER OF DECEMBER 18, 1963, CONCERNING THE ENTITLEMENT OF EMPLOYEES OF THE PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, TO CERTAIN FEDERAL EMPLOYEE BENEFITS WHILE DETAILED TO DUTY WITH STATE, MUNICIPAL AND OTHER NONPROFIT INSTITUTIONS UNDER SECTION 214 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, CH. 373, 58 STAT. 630, AS AMENDED, 42 U.S.C. 215.

THE SPECIFIC AUTHORITY FOR ASSIGNING EMPLOYEES TO THE DETAILS IN QUESTION IS CONTAINED IN SUBSECTIONS (B), (C) AND (D) CODIFIED IN SECTION 215, TITLE 42 OF THE U.S.C. AS FOLLOWS:

(B) UPON THE REQUEST OF ANY STATE HEALTH AUTHORITY OR, IN THE CASE OF WORK RELATING TO MENTAL HEALTH, ANY STATE MENTAL HEALTH AUTHORITY, PERSONNEL OF THE SERVICE MAY BE DETAILED BY THE SURGEON GENERAL FOR THE PURPOSE OF ASSISTING SUCH STATE OR A POLITICAL SUBDIVISION THEREOF IN WORK RELATED TO THE FUNCTIONS OF THE SERVICE.

(C) THE SURGEON GENERAL MAY DETAIL PERSONNEL OF THE SERVICE TO NONPROFIT EDUCATIONAL, RESEARCH, OR OTHER INSTITUTIONS ENGAGED IN HEALTH ACTIVITIES FOR SPECIAL STUDIES OF SCIENTIFIC PROBLEMS AND FOR THE DISSEMINATION OF INFORMATION RELATING TO PUBLIC HEALTH.

(D) PERSONNEL DETAILED UNDER SUBSECTIONS (B) AND (C) OF THIS SECTION SHALL BE PAID FROM APPLICABLE APPROPRIATIONS OF THE SERVICE, EXCEPT THAT, IN ACCORDANCE WITH REGULATIONS SUCH PERSONNEL MAY BE PLACED ON LEAVE WITHOUT PAY AND PAID BY THE STATE, SUBDIVISION, OR INSTITUTION TO WHICH THEY ARE DETAILED. THE SERVICES OF PERSONNEL WHILE DETAILED PURSUANT TO THIS SECTION SHALL BE CONSIDERED AS HAVING BEEN PERFORMED IN THE SERVICE FOR PURPOSES OF THE COMPUTATION OF BASIC PAY, PROMOTION, RETIREMENT, COMPENSATION FOR INJURY OR DEATH, AND THE BENEFITS PROVIDED BY SECTION 213 OF THIS TITLE.

THE QUESTION PRESENTED IS WHETHER FEDERAL EMPLOYEE BENEFITS NOT SPECIFICALLY MENTIONED IN SUBSECTION (D) QUOTED ABOVE ARE RETAINED BY CIVIL SERVICE EMPLOYEES OF THE PUBLIC HEALTH SERVICE WHILE THEY ARE ON DETAIL. THE BENEFITS TO WHICH REFERENCE IS MADE IN THE CORRESPONDENCE ATTACHED TO YOUR LETTER AND WHICH ARE NOT SPECIFIED IN THE STATUTE ARE: (1) ANNUAL AND SICK LEAVE UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, APPROVED OCTOBER 30, 1951, CH. 631, 65 STAT. 679, AS AMENDED, 5 U.S.C. 2061, ET SEQ.; (2) 40-HOUR WORKWEEK UNDER SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, CH. 212, 59 STAT. 303, AS AMENDED, 5 U.S.C. 944; AND (3) OVERTIME AND HOLIDAY PAY AS PROVIDED BY SECTIONS 201 AND 302 OF THE 1945 ACT, AS AMENDED, 5 U.S.C. 911, 922.

IT APPEARS THAT BONA FIDE EMPLOYEES OF THE PUBLIC HEALTH SERVICE ARE ENTITLED TO ALL THE BENEFITS OF FEDERAL EMPLOYMENT DURING THEIR PERIODS OF DETAIL TO A STATE OR LOCAL AGENCY PROVIDED THEY CONTINUE TO RECEIVE THEIR SALARIES FROM THE FEDERAL GOVERNMENT. THE FACT THAT SUPERVISION IS EXERCISED OVER CERTAIN OF THE DUTIES PERFORMED BY SUCH EMPLOYEES BY LOCAL OFFICIALS RATHER THAN BY FEDERAL OFFICIALS IS NOT MATERIAL HERE SINCE THEIR SALARIES CONTINUE TO BE PAID FROM FEDERAL FUNDS APPROPRIATED FOR THAT PURPOSE AND BECAUSE THE STATUTE SPECIFICALLY AUTHORIZING SUCH DETAILS REASONABLY MAY BE VIEWED AS CONTEMPLATING SUPERVISION BY OTHER THAN FEDERAL OFFICIALS.

ON THE OTHER HAND, EMPLOYEES OF THE PUBLIC HEALTH SERVICE WHO ARE PLACED ON LEAVE WITHOUT PAY DURING THEIR ASSIGNMENTS TO LOCAL AGENCIES RETAIN ONLY SUCH FEDERAL EMPLOYEE RIGHTS AS ARE NORMALLY RETAINED BY EMPLOYEES IN A LEAVE WITHOUT PAY STATUS IN ADDITION TO THE BENEFITS SPECIFICALLY MENTIONED IN THE STATUTE. THE LEGISLATIVE HISTORY OF SECTION 214 OF THE PUBLIC HEALTH SERVICE ACT SHOWS THAT THE CONGRESS INTENDED THAT ALL DETAILED EMPLOYEES WOULD BE ENTITLED TO RETURN TO THEIR NORMAL FEDERAL DUTIES AFTER DETAIL WITHOUT LOSS OF, OR DETRIMENT TO, THEIR STATUS AS FEDERAL EMPLOYEES. WE DO NOT BELIEVE, HOWEVER, THAT THE LEGISLATIVE HISTORY MAY BE USED TO SUPPORT A HOLDING THAT EMPLOYEES PLACED ON LEAVE WITHOUT PAY RETAIN ALL THE RIGHTS AND BENEFITS OF FEDERAL EMPLOYEES DURING THE PERIOD OF SUCH LEAVE WITHOUT PAY.

TO BE SPECIFIC A DETAILED EMPLOYEE OF THE PUBLIC HEALTH SERVICE WHO CONTINUES TO RECEIVE HIS FEDERAL SALARY IS ENTITLED TO THE BENEFITS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, THE 40-HOUR WORKWEEK PROVISIONS OF SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND THE OVERTIME AND HOLIDAY PAY PROVISIONS OF SECTIONS 201 AND 302 OF THAT ACT SO LONG AS HE REMAINS A FEDERAL EMPLOYEE ON DETAIL. IF HE IS PLACED ON LEAVE WITHOUT PAY FROM HIS FEDERAL POSITION HE WOULD NOT BE ENTITLED TO THE BENEFITS OF THOSE LAWS.

DETAILED EMPLOYEES WHO ARE PAID BY THE FEDERAL GOVERNMENT MAY BE EXCUSED FROM DUTY ON A LOCAL HOLIDAY ON WHICH THEIR NORMAL DUTIES MAY NOT PROPERLY BE PERFORMED. 17 COMP. GEN. 298, 300. WE KNOW OF NO PROVISION OF LAW, HOWEVER, WHICH AUTHORIZES THE PAYMENT OF EXTRA COMPENSATION TO EMPLOYEES WHO ARE REQUIRED TO WORK ON SUCH STATE OR LOCAL HOLIDAYS EVEN THOUGH OTHER FEDERAL EMPLOYEES SIMILARLY SITUATED MAY HAVE BEEN EXCUSED UNDER THE RULE OF 17 COMP. GEN. 298. THUS, SUCH EMPLOYEES WHO ARE EXCUSED FROM WORK ON A STATE OR LOCAL HOLIDAY NEED NOT BE CHARGED LEAVE, BUT IF NOT EXCUSED ARE ENTITLED ONLY TO THEIR REGULAR COMPENSATION.