B-150794, FEBRUARY 25, 1963, 42 COMP. GEN. 438

B-150794, FEBRUARY 25, 1963, 42 COMP. GEN. 438

LEAVES OF ABSENCE - RECREDIT ON RESTORATION - PHYSICAL FITNESS DETERMINATION THE PLACING PURSUANT TO MEDICAL ADVICE OF AN EMPLOYEE SUSPECTED OF HAVING A CONTAGIOUS DISEASE ON INVOLUNTARY LEAVE WITH PAY PENDING CLINICAL TESTS AND EXAMINATIONS IS NOT SUCH AN ARBITRARY OR CAPRICIOUS ADMINISTRATIVE ACTION WITHIN THE PURVIEW OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652, AS TO ENTITLE THE EMPLOYEE UPON RETURN TO DUTY TO THE RESTORATION OF THE SICK AND ANNUAL LEAVE TAKEN DURING THE PERIOD OF THE ENFORCED LEAVE STATUS, THE ADMINISTRATIVE ACTION BEING A REASONABLE PRECAUTION TO PROTECT THE PUBLIC HEALTH, AND, ALSO, THERE IS NO APPROPRIATION AVAILABLE FOR THE PAYMENT OF THE EMPLOYEE'S SALARY DURING THE PERIOD OF ABSENCE EXCEPT BY A CHARGE TO SICK OR ANNUAL LEAVE.

TO THE SECRETARY OF THE NAVY, FEBRUARY 25, 1963:

ON FEBRUARY 5, 1963, THE UNDER SECRETARY OF THE NAVY ASKED OUR OPINION WHETHER SICK AND ANNUAL LEAVE CHARGED TO A CIVILIAN EMPLOYEE OF THE NAVY IN CALIFORNIA, BECAUSE OF REQUIRED ABSENCE FROM DUTY DURING A PERIOD IN WHICH HE WAS UNDERGOING A SERIES OF CLINICAL TESTS AND EXAMINATIONS IN CONNECTION WITH A SUSPECTED INFECTIOUS TUBERCULAR CONDITION, MAY NOW BE RECREDITED TO HIS LEAVE ACCOUNT.

THE ESSENTIAL FACTS OF THE CASE ARE RELATED IN THE UNDER SECRETARY'S LETTER. ON AUGUST 31, 1961, THE EMPLOYEE WAS PLACED IN A LEAVE STATUS BECAUSE THE MEDICAL OFFICER, NAVAL TRAINING CENTER, SAN DIEGO, FOUND HIM PHYSICALLY DISQUALIFIED FOR HIS DUTIES. CHEST X-RAYS HAD INDICATED THE POSSIBILITY OF ACTIVE TUBERCULOSIS. THE EMPLOYEE WAS REFERRED TO THE NAVAL HOSPITAL, SAN DIEGO, AND BY LETTER OF OCTOBER 19, 1961, A HOSPITAL PHYSICIAN ADVISED THAT LABORATORY TESTS HAD BEEN NEGATIVE AS TO ACTIVE TUBERCULOSIS, BUT THAT ACTIVE TUBERCULOSIS HAD NOT BEEN DEFINITELY RULED OUT. THE HOSPITAL PHYSICIAN RECOMMENDED AGAINST THE EMPLOYEE'S RETURN TO WORK WITHOUT FURTHER LABORATORY TESTS.

AT THE TIME EMPLOYEE WAS PLACED IN A LEAVE STATUS THE MEDICAL OFFICER, NAVAL TRAINING CENTER, WAS ADVISED THAT EMPLOYEE'S PERSONAL PHYSICIAN, DR. EDWARD C. PERSON, HAD A HISTORY OF X-RAY OBSERVATIONS AND NEGATIVE CONTAGION TESTS ON FILE WITH RESPECT TO EMPLOYEE. THE MEDICAL OFFICER, HOWEVER, INSISTED UPON THE LABORATORY TESTS PERFORMED AT THE NAVAL HOSPITAL. THE PERSONAL PHYSICIAN, DR. PERSON, STUDIED THE RESULTS OF THE NAVAL HOSPITAL EXAMINATION AND IN NOVEMBER EXPRESSED THE OPINION THAT EMPLOYEE SHOULD BE ALLOWED TO RETURN TO WORK.

AS A RESULT OF THIS DIVISION OF MEDICAL OPINION, THE OPINION OF ANOTHER CIVILIAN PHYSICIAN, DR. V. J. WYBORNEY, WAS SOUGHT. BY LETTER OF MAY 19, 1962, DR. WYBORNEY OUTLINES HIS OPINIONS AND ACTIONS. IN ESSENCE HE THOUGHT THE SITUATION SUFFICIENTLY DOUBTFUL THAT ADDITIONAL TESTS SHOULD BE TAKEN; THESE TESTS WERE TAKEN AND NEGATIVE RESULTS OBTAINED. THEREAFTER, ON FEBRUARY 1, 1962, EMPLOYEE WAS PERMITTED TO RETURN TO DUTY.

THE EMPLOYEE NOW SEEKS TO HAVE THE SICK AND ANNUAL LEAVE TAKEN DURING HIS PERIOD OF ENFORCED LEAVE STATUS RESTORED. HE WAS PLACED ON SICK LEAVE AUGUST 31, 1961, AND WAS CARRIED ON LEAVE TOTALING 834 HOURS (EXCLUDING HOLIDAYS). THIS INCLUDED 683 HOURS SICK LEAVE AND 151 HOURS ANNUAL LEAVE. THE EMPLOYEE WAS ADVANCED SICK LEAVE FROM DECEMBER 1, 1961, THROUGH JANUARY 16, 1962, AND ADVANCED ANNUAL LEAVE FROM JANUARY 16, 1962, THROUGH JANUARY 31, 1962. HE WAS NOT PLACED ON LEAVE WITHOUT PAY.

THE RESTORATION OF THE LEAVE CREDIT BY THE DEPARTMENT IN THIS CASE WITHOUT REFUND BY THE EMPLOYEE OF THE COMPENSATION PAID TO HIM FOR THE PERIOD OF ABSENCE IS AUTHORIZED ONLY IF THE CASE FALLS WITHIN THE PURVIEW OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652. THAT STATUTE AUTHORIZES PAYMENT, EXCEPT WHEN AN EMPLOYEE IS CHARGED FOR LEAVE WITH PAY DURING A REQUIRED NOTICE PERIOD, ONLY FOR PERIODS OF INVOLUNTARY LEAVE WITHOUT PAY, SUSPENSION OR FURLOUGH WITHOUT PAY, OR REMOVAL WHEN IT IS FOUND THAT THE ADVERSE ADMINISTRATIVE ACTION IS UNJUSTIFIED OR UNWARRANTED, OR ARBITRARY OR CAPRICIOUS.

IN THIS CASE WE ARE OF THE VIEW THAT THE ISSUE IS WHETHER THE ADMINISTRATIVE ACTION IN PLACING THE EMPLOYEE ON INVOLUNTARY LEAVE WITH PAY WAS ARBITRARY OR CAPRICIOUS.

WE CONSISTENTLY HAVE BEEN OF THE OPINION THAT WHEN AN EMPLOYEE IS PLACED IN A LEAVE STATUS SOLELY BECAUSE OF A MEDICAL FINDING THAT HE IS DISABLED FROM PERFORMING HIS DUTIES OR SUSPECTED OF SUFFERING FROMA CONTAGIOUS DISEASE, THE ADMINISTRATIVE ACTION IS NOT TO BE VIEWED AS ARBITRARY OR CAPRICIOUS. 30 COMP. GEN. 342; B-131542, MAY 21, 1957; DECEMBER 12, 1962 (COPIES HEREWITH). CF. 39 COMP. GEN. 154.

CONCERNING THE PROPRIETY OF OUR DECISIONS RELATIVE TO NONCONTAGIOUS SUSPECTED DISABILITIES, THERE PRESENTLY IS PENDING IN THE COURT OF CLAIMS, THE CASE OF RICKER J. KLEINFELTER (A CIVILIAN EMPLOYEE OF THE NAVY) V. UNITED STATES, CT.CL. NO. 233-60. HOWEVER, REGARDING CASES INVOLVING SUSPECTED CONTAGIOUS DISEASES, THERE ARE OTHER CONSIDERATIONS.

IN THE LIGHT OF THE FACTS IN THIS CASE OUR OPINION IS THAT IT WAS A REASONABLE ADMINISTRATIVE PRECAUTION TO REQUIRE THE ABSENCE OF THIS EMPLOYEE UNTIL IT COULD BE MEDICALLY ESTABLISHED THAT HIS PRESENCE AT WORK WAS NOT A HAZARD TO THE PRESERVATION AND PROTECTION OF THE PUBLIC HEALTH. THUS, THE ADMINISTRATIVE ACTION IN PLACING HIM ON LEAVE OF ABSENCE TAKEN PURSUANT TO COMPETENT MEDICAL ADVICE CANNOT BE HELD TO BE ARBITRARY OR CAPRICIOUS.

IN THE FOREGOING CIRCUMSTANCES, THERE IS NO APPROPRIATION AVAILABLE FOR PAYMENT OF THE EMPLOYEE'S SALARY DURING THE PERIOD OF ABSENCE EXCEPT BY A CHARGE TO SICK OR ANNUAL LEAVE. THEREFORE, THE UNDER SECRETARY'S QUESTION MUST BE ANSWERED IN THE NEGATIVE.