B-159420, JUL. 19, 1966

B-159420, JUL. 19, 1966

TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:

WE REFER TO LETTER OF JUNE 24, 1966, REFERENCE PT-20, FROM THE CHIEF, PERSONNEL PROGRAMS DIVISION, OFFICE OF PERSONNEL AND TRAINING, RELATIVE TO THE GRANTING OF COMPENSATORY TIME OFF TO AN AIR TRAFFIC CONTROLLER WHO, BY ORDERS OF RESPONSIBLE ADMINISTRATIVE OFFICIALS, WAS DIRECTED TO TAKE A PHYSICAL EXAMINATION IN A GOVERNMENT MEDICAL FACILITY ON HIS REGULAR DAY OFF. IN THIS PARTICULAR CASE THE AIR TRAFFIC CONTROLLER WAS ADVISED BY LOCAL ADMINISTRATIVE OFFICIALS THAT HE WOULD BE GRANTED COMPENSATORY TIME FOR THE DAY ON WHICH HE TOOK THE PHYSICAL EXAMINATION AND, IN FACT, HE WAS GRANTED EIGHT HOURS OF COMPENSATORY TIME FOR SUCH DAY. SUBSEQUENTLY, THE GRANTING OF THE EIGHT HOURS COMPENSATORY TIME WAS CONVERTED TO AN EIGHT- HOUR CHARGE AGAINST THE ANNUAL LEAVE OF THE EMPLOYEE.

YOUR AGENCY'S LETTER POINTS OUT THAT AT THE TIME OF THE PHYSICAL EXAMINATION OF THE EMPLOYEE THERE WAS NO AGENCY-WIDE PRACTICE OR INSTRUCTION PROVIDING FOR THE GRANTING OF COMPENSATORY TIME WHEN A PHYSICAL EXAMINATION IS SCHEDULED ON AN EMPLOYEE'S DAY OFF, BUT NEITHER WAS THERE ANY POLICY OR INSTRUCTION PRECLUDING THE PRACTICE. THE EMPLOYING ACTIVITY'S ACTION IN GRANTING THE COMPENSATORY TIME, THEREFORE, CANNOT REASONABLY BE SAID TO HAVE BEEN IN CONTRAVENTION OF ANY AGENCY REGULATION, INSTRUCTION OR PRACTICE.

IN SUCH CONNECTION YOUR LETTER SAYS---

"PRIOR TO THE IMPLEMENTATION OF THE NEW MANDATORY MEDICAL PROGRAM, AGENCY PERSONNEL WHO WERE REQUIRED TO TAKE PHYSICAL EXAMINATIONS IN ORDER TO BE CERTIFICATED FOR THEIR WORK WERE GRANTED UP TO EIGHT HOURS OF EXCUSED ABSENCE FROM DUTY TO TAKE THE REQUIRED PHYSICAL EXAMINATION. THIS POLICY HAS BEEN ADEQUATE IN THE PAST, AND THE AGENCY HAD NOT HAD AN OPPORTUNITY TO DETERMINE THAT THERE WAS A NEED FOR A SPECIFIC POLICY COVERING ABSENCES ON NONWORKDAYS.

"UPON IMPLEMENTATION OF THE PROGRAM, AND IN THE ABSENCE OF SPECIFIC REGULATIONS REGARDING THIS NEW PROGRAM, LOCAL MANAGEMENT ADVISED EMPLOYEES THAT THEY WOULD BE GIVEN COMPENSATORY TIME OFF FROM DUTY IF THEY WERE REQUIRED TO TAKE MEDICAL EXAMINATIONS ON THEIR NONWORKDAYS. THE RIGIDITY OF SCHEDULING REQUIREMENTS NECESSITATED SCHEDULING SOME EMPLOYEES OUTSIDE THE REGULARLY SCHEDULED WORKWEEK. SINCE THERE WERE NO REGULATIONS PRECLUDING THE AUTHORIZATION OF COMPENSATORY TIME, IT WAS GRANTED BY LOCAL MANAGEMENT FOR THOSE CONTROLLERS AT THE AURORA CENTER SCHEDULED OUTSIDE THEIR REGULAR WORKWEEK.

"IN SUMMARY, LOCAL MANAGEMENT HAD NO ALTERNATIVE IN SCHEDULING THESE EXAMINATIONS. IN THE ABSENCE OF REGULATIONS TO THE CONTRARY, THE AURORA CENTER SUPERVISOR AUTHORIZED COMPENSATORY TIME OFF FOR TAKING MEDICAL EXAMINATIONS DURING NONDUTY HOURS. THIS AUTHORIZATION HAS BEEN QUESTIONED. WE FEEL THAT THE EMPLOYEES SO AFFECTED SHOULD BE CONSIDERED IN DUTY STATUS FOR THIS PERIOD.'

IN VIEW OF THE FOREGOING AND SINCE THE AGENCY NOT ONLY DETERMINED AND DIRECTED WHEN AND WHERE THE MANDATORY PHYSICAL EXAMINATION WAS TO BE TAKEN, BUT IS OF THE VIEW THAT THE EMPLOYEE WAS IN A DUTY STATUS ON THE DAY HE TOOK SUCH PHYSICAL EXAMINATION, OUR OPINION IS THAT THE EIGHT HOURS ANNUAL LEAVE CHARGED MAY BE RECONVERTED TO A CHARGE AGAINST COMPENSATORY TIME AND THE ANNUAL LEAVE RESTORED TO THE CREDIT OF THE EMPLOYEE. ACTION IN SIMILAR CASES MAY BE TAKEN IN ACCORDANCE WITH THE ABOVE.