B-155202, OCTOBER 12, 1964, 44 COMP. GEN. 209

B-155202: Oct 12, 1964

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NOT TO HAVE RESULTED FROM THE PERFORMANCE OF DUTY ARE CHARGEABLE AS SICK LEAVE. THE LEGISLATIVE HISTORY INDICATING THE PURPOSE OF THE ACT WAS TO EXTEND TO THE OFFICERS AND MEMBERS OF THE FIRE DEPARTMENT AND THE POLICE FORCES THE SICK LEAVE BENEFITS ACCORDED CIVILIAN EMPLOYEES BY PLACING THEM UNDER THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951. INITIALLY CREDITING TO THEM A SICK LEAVE BALANCE THAT REPRESENTS AN ESTIMATE OF THE AMOUNT THAT WOULD HAVE ACCUMULATED UNDER THE 1951 ACT FROM DATE OF EMPLOYMENT. WHEN IT IS DETERMINED UNDER SECTION 5 (B) OF THE ACT OF AUGUST 21. THAT FIREMEN AND POLICEMEN OF THE DISTRICT OF COLUMBIA ARE NOT ENTITLED TO BE ABSENT FROM DUTY WITHOUT CHARGE TO LEAVE.

B-155202, OCTOBER 12, 1964, 44 COMP. GEN. 209

DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - LEAVES OF ABSENCE - SICK. DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - LEAVES OF ABSENCE - ADMINISTRATIVE LEAVE. DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - LEAVES OF ABSENCE - ADVANCES OF SICK LEAVE. DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - LEAVES OF ABSENCE - SICK THE ABSENCE OF FIREMEN AND POLICEMEN OF THE DISTRICT OF COLUMBIA DETERMINED PURSUANT TO SECTION 5 (B) OF THE ACT OF AUGUST 21, 1964, NOT TO HAVE RESULTED FROM THE PERFORMANCE OF DUTY ARE CHARGEABLE AS SICK LEAVE, SUCH ABSENCES NOT BEING EXEMPT FROM CHARGE UNDER SECTION 5 (A), AND THE LEGISLATIVE HISTORY INDICATING THE PURPOSE OF THE ACT WAS TO EXTEND TO THE OFFICERS AND MEMBERS OF THE FIRE DEPARTMENT AND THE POLICE FORCES THE SICK LEAVE BENEFITS ACCORDED CIVILIAN EMPLOYEES BY PLACING THEM UNDER THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, AND INITIALLY CREDITING TO THEM A SICK LEAVE BALANCE THAT REPRESENTS AN ESTIMATE OF THE AMOUNT THAT WOULD HAVE ACCUMULATED UNDER THE 1951 ACT FROM DATE OF EMPLOYMENT; THEREFORE, THE OFFICERS AND MEMBERS PURSUANT TO SECTION 630.401 OF THE FEDERAL PERSONNEL MANUAL MAY BE GRANTED SICK LEAVE FOR ABSENCES DUE TO SICKNESS OR INJURY INCAPACITATING THEM FOR THE PERFORMANCE OF DUTY. WHEN IT IS DETERMINED UNDER SECTION 5 (B) OF THE ACT OF AUGUST 21, 1964, THAT FIREMEN AND POLICEMEN OF THE DISTRICT OF COLUMBIA ARE NOT ENTITLED TO BE ABSENT FROM DUTY WITHOUT CHARGE TO LEAVE, THE ABSENCE NOT HAVING RESULTED FROM THE PERFORMANCE OF DUTY, REGULATIONS MAY NOT BE PROMULGATED TO AUTHORIZE THE GRANT OF ADMINISTRATIVE LEAVE FOR THE ABSENCE, SECTION 5 (B) PROVIDING ONLY FOR THE PROMULGATION OF REGULATIONS FOR DETERMINING WHETHER THE INJURY OR DISEASE RESULTED FROM THE PERFORMANCE OF DUTY. HAVING BECOME SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, PURSUANT TO THE ACT OF AUGUST 21, 1964, FIREMEN AND POLICEMEN OF THE DISTRICT OF COLUMBIA WHO DO NOT HAVE A SUFFICIENT SICK LEAVE BALANCE TO COVER PERIODS OF ABSENCE THAT ARE NOT DUE TO INJURY OR ILLNESS RESULTING FROM THE PERFORMANCE OF DUTY MAY BE ADVANCED SICK LEAVE IN ACCORDANCE WITH 5 U.S.C. 2063 (C), WHICH AUTHORIZES THE ADVANCE OF SICK LEAVE NOT TO EXCEED 30 DAYS IN CASES OF SERIOUS DISABILITY OR AILMENTS; HOWEVER, JUST BECAUSE AN OFFICER OR MEMBER WAS NOT INITIALLY CREDITED WITH A SICK LEAVE BALANCE AS OF THE EFFECTIVE DATE OF THE 1964 ACT SUFFICIENT TO COVER ABSENCES FOUND NOT TO HAVE RESULTED FROM THE PERFORMANCE OF DUTY IS NOT A BASIS FOR ADVANCING SICK LEAVE. ABSENCE OF FIREMEN AND POLICEMEN OF THE DISTRICT OF COLUMBIA DETERMINED NOT TO HAVE BEEN THE RESULT OF THE PERFORMANCE OF DUTY UNDER SECTION 5 (B) OF THE ACT OF AUGUST 21, 1964, FOR THE PERIOD FROM THE EFFECTIVE DATE OF THE ACT--- THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING AFTER JANUARY 1, 1964--- UNTIL REGULATIONS ARE ISSUED OR GENERAL ACCOUNTING OFFICE DECISION RENDERED ON THE QUESTIONS PRESENTED, SHOULD NOT BE DISREGARDED, EVEN THOUGH SOME DIFFICULTY MAY BE ENCOUNTERED IN SECURING THE REQUIRED INFORMATION, IN VIEW OF THE PURPOSE OF THE LEGISLATION TO INITIALLY ESTABLISH A SICK LEAVE BALANCE FOR EACH OFFICER AND MEMBER.

TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OCTOBER 12, 1964:

THE LETTER OF SEPTEMBER 17, 1964, FROM THE ACTING PRESIDENT, REQUESTS OUR DECISION ON CERTAIN QUESTIONS BASED UPON THE PROVISIONS OF PUBLIC LAW 88- 471, APPROVED AUGUST 21, 1964, 78 STAT. 582, RELATING TO SICK LEAVE BENEFITS FOR OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE FORCE AND FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA AND OTHERS. SECTION 8 THEREOF, 78 STAT. 583, PRESCRIBES THAT THE ACT SHALL TAKE EFFECT ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER JANUARY 1, 1964.

THE ACT PROVIDES IN PART AS FOLLOWS:

SEC. 5. (A) NO SICK LEAVE SHALL BE CHARGED TO THE ACCOUNT OF ANY OFFICER OR MEMBER OF THE METROPOLITAN POLICE FORCE OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES PARK POLICE FORCE OR THE WHITE HOUSE POLICE FORCE FOR THE PERIODS OF ABSENCE DUE TO INJURY OR ILLNESS RESULTING FROM THE PERFORMANCE OF DUTY.

(B) THE DETERMINATION OF WHETHER AN INJURY OR DISEASE RESULTED FROM THE PERFORMANCE OF DUTY SHALL BE MADE PURSUANT TO REGULATIONS PROMULGATED BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA FOR OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE FORCE AND THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, BY THE SECRETARY OF THE TREASURY FOR THE WHITE HOUSE POLICE FORCE AND BY THE SECRETARY OF THE INTERIOR FOR THE UNITED STATES PARK POLICE FORCE.

YOU POINT OUT THAT THE LENGTH OF TIME REQUIRED TO MAKE A MEDICAL DIAGNOSIS WHETHER THE INJURY OR DISEASE RESULTED FROM THE PERFORMANCE OF DUTY VARIES DEPENDING UPON THE STUDIES INVOLVED. YOU SAY THAT OFFICERS AND MEMBERS FOR WHOM SUCH DETERMINATIONS ARE REQUIRED CANNOT RETURN TO DUTY UNTIL AUTHORIZED BY THE BOARD OF POLICE AND FIRE SURGEONS. YOU ALSO POINT OUT THAT WHEN IT IS FINALLY DETERMINED THAT THE INJURY OR DISEASE RESULTED FROM THE PERFORMANCE OF DUTY, SECTION 5 (A) PROVIDES THAT NO SICK LEAVE SHALL BE CHARGED FOR SUCH PERIODS OF ABSENCE. HOWEVER, YOU SAY THAT WHEN THE DIAGNOSIS IS TO THE EFFECT THAT THE INJURY OR DISEASE DID NOT RESULT FROM THE PERFORMANCE OF DUTY CERTAIN QUESTIONS HAVE ARISEN AS TO THE PROPER CHARGE FOR SUCH ABSENCE. THE QUESTIONS READ AS FOLLOWS:

(1) WOULD THIS PERIOD BE WITHOUT CHARGE SICK LEAVE?

(2) IF YOUR DECISION IN THE ABOVE QUESTION (1) IS IN THE NEGATIVE, MAY ADMINISTRATIVE LEAVE BE GRANTED IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE COMMISSIONERS UNDER THE PROVISIONS OF SECTION 5 (B/?

(3) IF YOUR ANSWERS TO (1) AND (2) ARE IN THE NEGATIVE, AND IF THE PERSON CONCERNED DOES NOT HAVE SUFFICIENT SICK LEAVE BALANCE, WOULD THERE BE ANY OBJECTION TO THE ADVANCING OF SICK LEAVE FOR THIS PURPOSE?

S. REPT. NO. 1347 AND H. REPT. NO. 1220, 88TH CONGRESS, 2D SESSION, TO ACCOMPANY H.R. 10215, WHICH BECAME PUBLIC LAW 88-471, STATE THAT THE PURPOSE OF THE BILL WAS TO EXTEND TO OFFICERS AND MEMBERS THE SICK LEAVE BENEFITS ACCORDED CIVILIAN EMPLOYEES BY PLACING THEM UNDER THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061, ET SEQ.

THE FOREGOING REPORTS SHOW THAT SUCH INITIAL CREDIT OF SICK LEAVE BALANCE, AS OF THE FIRST PAY PERIOD AFTER JANUARY 1, 1964, COMPUTED UNDER SECTIONS 2, 3 AND 4 OF PUBLIC LAW 88-471, REPRESENTS AN ESTIMATE OF THE AMOUNT OF SICK LEAVE THEY WOULD HAVE ACCUMULATED HAD THEY BEEN UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, FROM INITIAL DATE OF EMPLOYMENT. IT IS EVIDENT THEREFROM AND FROM SECTION 1 OF PUBLIC LAW 88- 471, WHICH SPECIFICALLY PROVIDES THAT THE PROVISIONS OF THE 1951 ANNUAL AND SICK LEAVE ACT WILL APPLY TO THE OFFICERS AND MEMBERS IN QUESTION, THAT SUCH OFFICERS AND MEMBERS WERE INTENDED TO BE PLACED IN THE SAME POSITION AS THE OTHER EMPLOYEES COVERED BY THE 1951 ACT. THUS THEY BECAME SUBJECT TO THE APPLICABLE PROVISIONS OF THE ANNUAL AND SICK LEAVE REGULATIONS, FEDERAL PERSONNEL MANUAL, SUPP. 990-1, PART 630, SUBPART D, GOVERNING SICK LEAVE, IN FORCE AND EFFECT AFTER JANUARY 1, 1964. SECTION 630.401 THEREOF IS TO THE EFFECT THAT AN AGENCY SHALL GRANT SICK LEAVE TO AN EMPLOYEE WHEN, AMONG OTHER THINGS, HE IS INCAPACITATED FOR THE PERFORMANCE OF DUTIES BY SICKNESS OR INJURY.

IN LIGHT OF THE FOREGOING THOSE ABSENCES WHICH OCCURRED AFTER THE EFFECTIVE DATE OF PUBLIC LAW 88-471, FOR DIAGNOSTIC STUDIES WHEREIN IT WAS DETERMINED FINALLY THAT THE INJURY OR DISEASE DID NOT RESULT FROM THE PERFORMANCE OF DUTY, ARE FOR CHARGING AS SICK LEAVE. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

SECTION 5 (B), QUOTED ABOVE, PROVIDES ONLY FOR THE PROMULGATION OF REGULATIONS FOR DETERMINING WHETHER AN INJURY OR DISEASE RESULTED FROM THE PERFORMANCE OF DUTY. QUESTION 2 IS ANSWERED IN THE NEGATIVE.

SECTION 6 (A) OF PUBLIC LAW 88-471, 78 STAT. 583, REPEALED SECTION 202 (B) (3) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061 (B) (3). SUCH REPEAL MADE THE OFFICERS AND MEMBERS HERE INVOLVED SUBJECT TO THE PROVISIONS OF SECTION 204 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2063 (C) WHICH READS AS FOLLOWS:

(C) NOT TO EXCEED THIRTY DAYS SICK LEAVE MAY BE ADVANCED IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.

SINCE SUCH OFFICERS AND MEMBERS BECAME SUBJECT THERETO THE FIRST PAY PERIOD AFTER JANUARY 1, 1964, IT IS CLEAR FROM THE LANGUAGE OF THAT SECTION THAT SICK LEAVE MAY BE ADMINISTRATIVELY ADVANCED TO THEM AS IS NOT INITIALLY CREDITED WITH A SICK LEAVE BALANCE AS OF THE FIRST PAY PERIOD AFTER JANUARY 1, 1964, SUFFICIENT TO COVER SUBSEQUENT ABSENCES WHICH ARE FOUND NOT TO HAVE RESULTED FROM THE PERFORMANCE OF DUTY DOES NOT PRESENT A BASIS, IN AND OF ITSELF, FOR ADVANCING SICK LEAVE. QUESTION 3 IS ANSWERED ACCORDINGLY.

IN VIEW OF THE PURPOSE OF THE LEGISLATION AS REFLECTED IN THE ABOVE REFERRED-TO REPORTS AND THE PROVISIONS MADE THEREBY TO INITIALLY ESTABLISH A SICK LEAVE BALANCE FOR EACH OFFICER AND MEMBER, NO BASIS EXISTS FOR DISREGARDING SUCH ABSENCES FOR THE INTERIM PERIOD JANUARY 1, 1964, UNTIL YOUR REGULATIONS ARE ISSUED OR OUR DECISION RENDERED ON THE QUESTIONS PRESENTED, EVEN THOUGH SOME DIFFICULTY MIGHT BE ENCOUNTERED IN SECURING THE REQUIRED INFORMATION FOR THIS PERIOD.