B-16552, MAY 28, 1941, 20 COMP. GEN. 827

B-16552: May 28, 1941

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ANNUAL AND SICK LEAVE - TEMPORARY AND INDEFINITE EMPLOYEES AN EMPLOYEE APPOINTED "FOR THE DURATION OF THE JOB" IS AN "INDEFINITE" EMPLOYEE WITH THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS. " ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR A FRACTIONAL MONTH'S SERVICE. SO THAT WHERE SUCH AN EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY. THE CONTINUITY OF EMPLOYMENT IS BROKEN SO AS TO PRECLUDE HIS EARNING LEAVE FOR THE PRECEDING FRACTIONAL MONTH. A NEW MONTH'S PERIOD IS BEGUN WHEN DUTY IS RESUMED. 16 COMP. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE FOR A FRACTIONAL MONTH'S SERVICE. ALTHOUGH THERE IS NO CORRESPONDING PROVISION IN THE SICK LEAVE REGULATIONS. THE SAME RULE IS APPLICABLE TO SICK LEAVE.

B-16552, MAY 28, 1941, 20 COMP. GEN. 827

ANNUAL AND SICK LEAVE - TEMPORARY AND INDEFINITE EMPLOYEES AN EMPLOYEE APPOINTED "FOR THE DURATION OF THE JOB" IS AN "INDEFINITE" EMPLOYEE WITH THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND TO AVOID CONFUSION WITH THOSE COMING WITHIN THE DEFINITION OF "PERMANENT EMPLOYEES," I.E., THOSE APPOINTED "WITHOUT LIMITATIONS AS TO LENGTH OF SERVICE," THE APPOINTMENT PAPERS SHOULD CONTAIN PROPER QUALIFYING WORDS TO DISTINGUISH THE PARTICULAR TYPE OF APPOINTMENT CONTEMPLATED. 17 COMP. GEN. 1017, AMPLIFIED. "INDEFINITE EMPLOYEES," AS DEFINED IN THE ANNUAL AND SICK LEAVE REGULATIONS, WHETHER OR NOT THEY BE PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR A FRACTIONAL MONTH'S SERVICE, SO THAT WHERE SUCH AN EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY, AFTER WORKING PART OF A MONTH, FOR A FRACTION OF A DAY, OR A DAY OR MORE, THE CONTINUITY OF EMPLOYMENT IS BROKEN SO AS TO PRECLUDE HIS EARNING LEAVE FOR THE PRECEDING FRACTIONAL MONTH, AND A NEW MONTH'S PERIOD IS BEGUN WHEN DUTY IS RESUMED. 16 COMP. GEN. 1039, AMPLIFIED. UNDER SECTION 14 OF THE ANNUAL LEAVE REGULATIONS, TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE FOR A FRACTIONAL MONTH'S SERVICE, AND, ALTHOUGH THERE IS NO CORRESPONDING PROVISION IN THE SICK LEAVE REGULATIONS, THE SAME RULE IS APPLICABLE TO SICK LEAVE, AND THE "FULL MONTH OF SERVICE" REQUIRED OF SUCH EMPLOYEES FOR LEAVE EARNING PURPOSES MEANS THE PERFORMANCE OF WORK OR THE CONTINUANCE OF A PAY STATUS DURING THE ENTIRE WORK MONTH OR MONTHLY TOUR OF DUTY. IF TEMPORARY EMPLOYEES IN THE DEPARTMENTAL SERVICE SHOULD BE ABSENT ON LEAVE WITHOUT PAY ON SATURDAYS FOR RELIGIOUS REASONS, A FRACTIONAL MONTH'S SERVICE WOULD RESULT AND NO ANNUAL OR SICK LEAVE WOULD ACCRUE, BUT, AS TO FIELD SERVICE EMPLOYEES, ABSENCE ON A SATURDAY ADMINISTRATIVELY ELIMINATED AS A WORK DAY, FOR RELIGIOUS OR OTHER REASONS, FOR ANY PARTICULAR SERVICE OR CLASS OF EMPLOYMENTS--- WHICH ACTION IS WITHIN ADMINISTRATIVE DISCRETION WHERE THERE IS NO INTERFERENCE WITH THE GOVERNMENT'S INTEREST-- - WOULD RESULT IN NO BREAK IN THE CONTINUITY OF SERVICE FOR THE MONTH. IF A TEMPORARY EMPLOYEE IN EITHER THE DEPARTMENTAL OR FIELD SERVICE ABSENTS HIMSELF FROM HIS WORK WITHOUT PAY FOR RELIGIOUS OR OTHER REASONS CONTINUOUSLY FOR A PERIOD OF SEVERAL DAYS "SUCH AS FROM THE 10TH TO THE 20TH," THERE WOULD RESULT A FRACTIONAL MONTH'S SERVICE AND NO ANNUAL OR SICK LEAVE WOULD ACCRUE FOR THAT MONTH.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, MAY 28, 1941:

I HAVE YOUR LETTER OF APRIL 28, 1941, AS FOLLOWS:

REFERENCE IS MADE TO DECISION 17 COMP. GEN. 1017.

THE SECOND PARAGRAPH OF THE SYLLABUS (AS WELL AS THE LANGUAGE ON PAGE 1020) STATES THAT ANNUAL AND SICK LEAVE MAY BE CREDITED TO INDEFINITE EMPLOYEES ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE, WHICH MAY BE CARRIED OVER FROM ONE SUCH PERIOD OF CONTINUOUS SERVICE TO ANOTHER. ALL OTHER PARAGRAPHS OF THE SYLLABUS RELATE TO PERSONS ON A "WHEN ACTUALLY EMPLOYED" BASIS, AND IT IS NOT CLEAR WHETHER THE SECOND PARAGRAPH IS ALSO CONFINED TO "WHEN ACTUALLY EMPLOYED" PERSONNEL. DECISION 16 COMP. GEN. 1039 INDICATES THAT PERMANENT AND INDEFINITE EMPLOYEES MAY BE ALLOWED ANNUAL LEAVE FOR A FRACTIONAL MONTH INCLUDED IN A PERIOD OF MORE THAN A MONTH, AND HAS BEEN UNDERSTOOD AS APPLYING ALSO TO A FRACTIONAL MONTH STANDING ALONE (EXCEPT WHEN ON AN "ACTUALLY EMPLOYED" BASIS). TO REMOVE ANY DOUBT DECISION IS REQUIRED WHETHER INDEFINITE EMPLOYEES ON OTHER THAN A "WHEN ACTUALLY EMPLOYED" BASIS MAY BE ALLOWED ANNUAL AND SICK LEAVE ACCRUING DURING A FRACTION OF A MONTH.

SHOULD ANSWER TO THE ABOVE QUESTION BE IN THE NEGATIVE, WHEN AN INDEFINITE EMPLOYEE HAS WORKED PART OF A MONTH AND THEN BEING ABSENT IS CHARGEABLE WITH LEAVE WITHOUT PAY FOR A FRACTION OF A DAY, A DAY, OR MORE THAN A DAY, DOES THE ABSENCE WITHOUT PAY BREAK THE CONTINUITY OF EMPLOYMENT SO AS TO PRECLUDE LEAVE EARNING FOR THE PRECEDING FRACTIONAL MONTH, THUS RESULTING IN THE BEGINNING OF A NEW MONTH PERIOD WHEN DUTY IS RESUMED?

THERE EXISTS ALSO DOUBT AS TO THE MEANING OF THE WORDS "FULL MONTH OF SERVICE" WITH RESPECT TO TEMPORARY EMPLOYEES (SECTION 14, ANNUAL LEAVE REGULATIONS). QUESTION ARISES WHETHER A "FULL MONTH OF SERVICE" IS RESTRICTED TO A MONTH OF CONTINUOUS SERVICE, OR WHETHER IT MAY INCLUDE ALSO A MONTH PERIOD IN WHICH THERE HAS BEEN SOME ABSENCE WITHOUT PAY OR A COMBINATION OF TWO OR MORE FRACTIONAL-MONTH PERIODS AGGREGATING A FULL MONTH. WHILE SECTION 10 OF THE ANNUAL LEAVE REGULATIONS PERMITS ACCRUAL OF ANNUAL LEAVE CREDIT DURING LEAVE WITHOUT PAY OR FURLOUGH AGGREGATING NOT MORE THAN THIRTY CALENDAR DAYS, IT IS NOT CLEAR THAT THIS WOULD APPLY TO SHORT-TERM EMPLOYEES.

OCCASIONALLY FOR RELIGIOUS REASONS AN EMPLOYEE IS UNWILLING TO WORK ONE DAY OF THE WEEK, USUALLY SATURDAY, AND THE CONDITIONS OF THE WORK ARE SUCH THAT HIS ABSENCE WILL NOT INTERFERE WITH THE GOVERNMENT'S INTERESTS. IF, IN THE CASE OF THE TEMPORARY EMPLOYEE, IT IS REQUIRED THAT ANNUAL LEAVE EARNING BE RESTRICTED TO CONTINUOUS SERVICE OF A MONTH OR MORE WITHOUT BREAK, THE EMPLOYEE ABSENT EACH SATURDAY COULD NOT ACCUMULATE ANY LEAVE CREDIT. ABSENCE FOR OTHER REASONS WOULD BE IN A SIMILAR STATUS. FOR EXAMPLE, DURING THE FIRST MONTH OF SERVICE A TEMPORARY EMPLOYEE MAY BE ABSENT A DAY BECAUSE OF ILLNESS IN EXCESS OF THE ALLOWABLE ONE AND ONE- QUARTER DAYS OR FOR MISCELLANEOUS PERSONAL REASONS WHICH WOULD REQUIRE LOSS OF PAY FOR THE TIME ABSENT SINCE ANNUAL LEAVE MAY NOT BE CREDITED AT THE BEGINNING OF THE FIRST MONTH. IN OTHER CASES, WHILE CONTINUOUS SERVICE MAY BE CONTEMPLATED FOR A PREDETERMINED PERIOD, A FURLOUGH FOR LACK OF WORK, UNSUITABLE WEATHER CONDITIONS, OR OTHER REASON MAY BECOME NECESSARY AT THE INSTANCE OF THE GOVERNMENT.

DECISION IS DESIRED AS TO TEMPORARY EMPLOYEES AS FOLLOWS:

1. MAY SUCH AN EMPLOYEE WHO, DURING THE FIRST MONTH'S EMPLOYMENT, IS ABSENT DURING EACH SATURDAY OF THE MONTH BECAUSE OF RELIGIOUS BELIEFS EARN ANNUAL LEAVE FOR THE ENTIRE MONTH? A NEGATIVE ANSWER WOULD SEEM TO DISCRIMINATE AGAINST THE INDIVIDUAL WHOSE RELIGION REQUIRES HIM TO OBSERVE A SABBATH FALLING ON A DAY OTHER THAN SUNDAY, SINCE, GENERALLY SPEAKING, THE DEPARTMENTS ARE CLOSED ON SUNDAY, AND THE QUESTION DOES NOT ARISE WITH RESPECT TO THOSE WHO OBSERVE SUNDAY AS THE SABBATH.

2. IF ANNUAL LEAVE IS EARNED IN THE NO. 1 EXAMPLE, WHAT LEAVE WOULD BE EARNED WHEN THE ABSENCE WITHOUT PAY IN THE FIRST MONTH OF EMPLOYMENT (FOR RELIGIOUS OR OTHER REASON) CONTINUES FOR A PERIOD SUCH AS FROM THE 10TH TO THE 20TH? (IN THIS CONNECTION IT IS RECALLED THAT UNDER 16 C.G. 1039 LEAVE IS NOT EARNED BY TEMPORARY EMPLOYEES FOR THE FRACTIONAL MONTH IN A PERIOD CONSISTING OF FULL MONTHS AND A FRACTION.)

3. DO THE ANSWERS FOR NOS. 1 AND 2 APPLY ALSO TO ACCRUAL OF SICK LEAVE, EXCEPT THAT THE RATE IS ONE AND ONE-QUARTER DAYS A MONTH?

SECTION 1 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940), AND SECTION 1 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940) CONTAIN DEFINITIONS OF VARIOUS CLASSES OF EMPLOYEES FOR LEAVE PURPOSES, AS FOLLOWS:

SEC. 1. AS USED IN THESE REGULATIONS:

(A) "EMPLOYEE" AND "EMPLOYEES" INCLUDE OFFICER AND OFFICERS RESPECTIVELY.

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.

(D) "EMERGENCY EMPLOYEES" ARE THOSE WHOSE COMPENSATION IS PAID FROM EMERGENCY FUNDS AND WHOSE TENURE OF APPOINTMENT IS LIMITED TO THE PERIOD FOR WHICH THE EMERGENCY FUNDS ARE AVAILABLE.

(E)"INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

THESE DEFINITIONS FIRST APPEARED IN LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938. SEE EXECUTIVE ORDERS NO. 7845 AND 7846, DATED MARCH 21, 1938.

IN THE DECISION OF MAY 27, 1938, 17 COMP. GEN. 1017, 1018, CITED IN THE FIRST PARAGRAPH OF YOUR LETTER, IT WAS STATED:

REFERRING TO QUESTION (1) THE APPARENT PURPOSE OF THE DEFINITION OF INDEFINITE EMPLOYEES WAS PRIMARILY TO DISTINGUISH BETWEEN EMPLOYEES WHO ARE REQUIRED TO BE AVAILABLE FOR DUTY DURING THE PERIOD OF THEIR INDEFINITE APPOINTMENTS ALTHOUGH PAID "ONLY WHEN ACTUALLY EMPLOYED," AND PART-TIME OR INTERMITTENT EMPLOYEES WHO ARE NOT REQUIRED TO BE AVAILABLE FOR DUTY EXCEPT DURING THE TIME THEY ACTUALLY WORK. THE FOLLOWING IS QUOTED FROM 16 COMP. GEN. 678, 680---

"* * * EMPLOYEES WHO ARE APPOINTED ON A FULL-TIME BASIS FOR AN INDEFINITE PERIOD BUT WHOSE WORK THEREUNDER IS PERFORMED PERIODICALLY BY BEING REQUIRED TO SERVE CONTINUOUSLY DURING REGULAR TOURS OF DUTY OF 1 MONTH OR MORE, SEPARATED BY PERIODS OF LAY-OFF OR FURLOUGH WITHOUT PAY DUE TO LACK OF WORK, NONAVAILABILITY OF FUNDS, ETC., ARE TO BE REGARDED FOR LEAVE PURPOSES NOT AS INTERMITTENT EMPLOYEES BUT AS PERMANENT EMPLOYEES. * * *" UNDER THE DEFINITION IN QUESTION IN THE NEW LEAVE REGULATIONS THIS CLASS OF EMPLOYEES IS NOW DESIGNATED AS "INDEFINITE" RATHER THAN "PERMANENT.' THE PHRASE IN THE DEFINITION OF INDEFINITE EMPLOYEES "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH" SHOULD BE READ IN CONNECTION WITH THE PRECEDING WORDS ,CONTINUOUSLY EMPLOYED," AND SIMPLY MEANS THAT TO BE CLASSED AS AN INDEFINITE EMPLOYEE THE MINIMUM PERIOD THE EMPLOYEE SERVES OR IS ON CALL FOR DUTY WHEN NEEDED MUST NOT BE LESS THAN 1 MONTH, BUT THE PHRASE DOES NOT MEAN THAT ANNUAL OR SICK LEAVE MAY BE CREDITED TO AN EMPLOYEE FOR LAY-OFF OR FURLOUGH PERIODS WITHOUT PAY OR FOR PERIODS OF CONTINUOUS SERVICE OF LESS THAN 1 MONTH. THE DEFINITION STANDING ALONE DOES NOT GRANT LEAVE BUT MUST BE CONSIDERED IN CONNECTION WITH THE STATUTES AND THE OTHER SECTIONS OF THE REGULATIONS. ANNUAL AND SICK LEAVE MAY BE CREDITED TO INDEFINITE EMPLOYEES ONLY FOR PERIODS OF CONTINUOUS SERVICE OF 1 MONTH OR MORE WHICH MAY BE CARRIED OVER FROM ONE SUCH PERIOD OF CONTINUOUS SERVICE TO ANOTHER. SEE THE DECISION, SUPRA, AND SECTIONS 5 AND 3 OF THE NEW ANNUAL- AND SICK-LEAVE REGULATIONS, RESPECTIVELY, QUOTED IN YOUR LETTER.

IN DECISION OF JANUARY 28, 1941, 20 COMP. GEN. 411, 413, INVOLVING THE QUESTION OF WHETHER EMPLOYEES APPOINTED AND PAID UPON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE REGULAR EMPLOYEES" WITHIN THE MEANING OF THE HOLIDAY COMPENSATION ACT OF JUNE 29, 1938, 52 STAT. 1246, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

* * * AS DEFINED IN THE LEAVE REGULATIONS, AN "INDEFINITE EMPLOYEE" MAY BE ONE APPOINTED FOR THE "DURATION OF THE JOB," WHICH MAY BE FOR ONLY SEVERAL DAYS OR SEVERAL WEEKS, OR ONE WHO MAY BE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR NO MORE THAN 1 MONTH. * * *

THUS, IF AN EMPLOYEE BE APPOINTED "FOR THE DURATION OF THE JOB"--- AN APPOINTMENT OTHER THAN UPON THE BASIS OF "WHEN ACTUALLY EMPLOYED"--- HE IS PROPERLY FOR CLASSING AS AN "INDEFINITE" EMPLOYEE FOR LEAVE PURPOSES. COURSE, SUCH AN APPOINTMENT IS NOT TO BE CONFUSED WITH ONE COMING WITHIN THE DEFINITION OF "PERMANENT EMPLOYEES," I.E., ONE WHO MAY BE APPOINTED "WITHOUT LIMITATION AS TO LENGTH OF SERVICE * * *," AND TO AVOID SUCH CONFUSION THE APPOINTMENT PAPERS SHOULD CONTAIN PROPER QUALIFYING WORDS TO DISTINGUISH THE PARTICULAR TYPE OF APPOINTMENT CONTEMPLATED.

REGARDING THE MATTER OF CREDITING ANNUAL AND SICK LEAVE TO INDEFINITE EMPLOYEES, IT WAS HELD IN DECISION OF MAY 27, 1938, 17 COMP. GEN. 1017, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

ANNUAL AND SICK LEAVE MAY BE CREDITED TO "INDEFINITE EMPLOYEES" ONLY FOR PERIODS OF CONTINUOUS SERVICE OF 1 MONTH OR MORE WHICH MAY BE CARRIED OVER FROM ONE SUCH PERIOD OF CONTINUOUS SERVICE TO ANOTHER.

SEE, ALSO, 18 COMP. GEN. 400; ID. 457.

THE SAME RULE FOR COMPUTING LEAVE IS APPLICABLE TO ALL EMPLOYEES PROPERLY CLASSED AS DEFINITE," WHETHER OR NOT THEY BE PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED.' THAT IS TO Y,"INDEFINITE EMPLOYEES," AS DEFINED IN THE LEAVE REGULATIONS, WHETHER OR NOT THEY BE PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE OF ABSENCE FOR A FRACTIONAL MONTH'S SERVICE. OF COURSE, PART TIME OR INTERMITTENT EMPLOYEES ARE NOT ENTITLED TO LEAVE. SEE SECTIONS 19 AND 23 OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTIVELY. THE RULE STATED IN DECISION OF MAY 26, 1637, 16 COMP. GEN. 1039, TO WHICH YOU REFER, WAS RENDERED PRIOR TO THE EFFECTIVE DATE OF THE FIRST LEAVE REGULATIONS CONTAINING THE DEFINITIONS OF THE VARIOUS CLASSES OF EMPLOYEES AND RELATES TO PERMANENT AND TEMPORARY EMPLOYEES ONLY--- SAID RULE BEING STATED AS FOLLOWS:

HOWEVER, AS THE 26 DAYS OF ANNUAL LEAVE TO WHICH PERMANENT EMPLOYEES ARE ENTITLED IS UPON AN ANNUAL RATHER THAN A MONTHLY BASIS, AND WHICH MAY BE GRANTED AT ANY TIME DURING THE CALENDAR YEAR, THE LEAVE OF PERMANENT EMPLOYEES MAY BE PRORATED FOR A FRACTIONAL YEAR OR MONTH OF SERVICE. REFERRING TO THE QUESTION IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER, LEAVE FOR A TEMPORARY EMPLOYEE SERVING 2 1/2 MONTHS SHOULD BE COMPUTED ON THE BASIS OF 2 MONTHS, EXCLUDING THE FRACTIONAL PART OF THE MONTH, MAKING A LEAVE CREDIT OF 5 DAYS, AND LEAVE FOR A PERMANENT EMPLOYEE SERVING THE SAME LENGTH OF TIME, ON THE BASIS OF 2 1/2 MONTHS, INCLUDING THE FRACTIONAL MONTH'S SERVICE, MAKING A LEAVE CREDIT OF 5 5/12 DAYS.

IT IS BELIEVED THE ABOVE ANSWERS THE QUESTION PRESENTED IN THE SECOND PARAGRAPH OF YOUR LETTER.

AS TO EMPLOYEES PROPERLY CLASSED AS "INDEFINITE" FOR LEAVE PURPOSES, THE QUESTION CONTAINED IN THE THIRD PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.

SECTION 1 OF THE ANNUAL LEAVE ACT, APPROVED MARCH 14, 1936, 49 STAT. 1161, CONTAINS THE FOLLOWING SENTENCE: " TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO 2 1/2 DAYS' LEAVE FOR EACH MONTH OF SERVICE. " ALSO, SECTION 2 OF THE SICK LEAVE ACT OF THE SAME DATE, 49 STAT. 1162, CONTAINS A CORRESPONDING SENTENCE, AS FOLLOWS: " TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO 1 1/4 DAYS' SICK LEAVE FOR EACH MONTH OF SERVICE.' SECTION 14 OF THE ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

SEC. 14. TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS' LEAVE FOR EACH FULL MONTH OF SERVICE. AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. TEMPORARY EMPLOYEES SHALL BE CHARGED WITH ANNUAL LEAVE ONLY FOR ABSENCE ON DAYS UPON WHICH THEY WOULD OTHERWISE WORK AND RECEIVE PAY. NO CHARGE SHALL BE MADE AGAINST ANNUAL LEAVE FOR ABSENCE ON SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.

THERE IS NO CORRESPONDING PROVISION IN THE SICK LEAVE REGULATIONS, APPARENTLY FOR THE REASON THAT THE RATE OF CREDIT PER MONTH FOR PERMANENT AND TEMPORARY EMPLOYEES IS THE SAME.

IN DECISION OF MAY 10, 1937, 16 COMP. GEN. 993, IT WAS STATED:

IN DECISION OF APRIL 16, 1937, A-84992, 16 COMP. GEN. 934, IT WAS HELD THAT TEMPORARY EMPLOYEES ARE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY INCLUSIVE OF SUNDAYS AND HOLIDAYS FOR EACH FULL MONTH OF SERVICE. THE STATUTORY GRANT OF ANNUAL LEAVE TO TEMPORARY EMPLOYEES IS CLEARLY ON A MONTHLY BASIS, THAT IS,"FOR EACH MONTH OF SERVICE.' COMPARE THIS WITH THE TERMS OF THE STATUTORY GRANT OF ANNUAL LEAVE TO PERMANENT EMPLOYEES, TO WIT,"26 DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.' THIS IS NOT A GRANT OF LEAVE "FOR" EACH YEAR OF SERVICE BUT ENTITLES PERMANENT EMPLOYEES TO 26 DAYS' ANNUAL LEAVE "EACH CALENDAR YEAR.' ACCORDINGLY, UNDER SECTION 14 OF THE ANNUAL LEAVE REGULATIONS AND THE ABOVE-QUOTED DECISIONS, TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE FOR A FRACTIONAL MONTH'S SERVICE. THERE IS PERCEIVED NO REASON WHY THE SAME RULE SHOULD NOT BE FOR APPLICATION AS TO SICK LEAVE. COMPARE 18 COMP. GEN. 457.

REFERRING TO THE FOURTH PARAGRAPH OF YOUR LETTER, IT MAY BE STATED THAT A "FULL MONTH OF VICE," AS THOSE WORDS ARE USED IN THE STATUTE AND REGULATIONS, MEANS THE PERFORMANCE OF WORK OR THE CONTINUANCE OF A PAY STATUS DURING THE ENTIRE WORK MONTH OR MONTHLY TOUR OF DUTY OF TEMPORARY EMPLOYEES; AND THAT SITUATION IS NECESSARY TO ENTITLE THE EMPLOYEE TO ANNUAL AND SICK LEAVE CREDIT FOR THAT MONTH. LEAVE STATUTES HAVE BEEN ENACTED AND REGULATIONS PROMULGATED AND REGULAR DAYS AND HOURS OF WORK OR TOURS OF DUTY HAVE BEEN ESTABLISHED BY LAW AND/OR ADMINISTRATIVE REGULATIONS WITHOUT REGARD TO THE RELIGIOUS BELIEFS OF ANY EMPLOYEE OR GROUP OF EMPLOYEES. AS TO EMPLOYEES PAID ON AN ANNUAL BASIS IN THE DEPARTMENTAL SERVICE, SATURDAY IS ESTABLISHED BY LAW AS A REGULAR DAY OF WORK, FOUR HOURS CONSTITUTING A DAY'S WORK ON THAT DAY. ACT OF MARCH 3, 1931, 46 STAT. 1482. IN THE FIELD SERVICE IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO ELIMINATE SATURDAY AS A DAY OF WORK. SEE 17 COMP. GEN. 564, AND THE LAWS AND DECISIONS THEREIN CITED.

ACCORDINGLY, AS TO EMPLOYEES IN THE DEPARTMENTAL SERVICE, QUESTION NUMBERED 1 IS ANSWERED IN THE NEGATIVE. AS TO EMPLOYEES IN THE FIELD SERVICE, IT IS WITHIN ADMINISTRATIVE DISCRETION TO ELIMINATE SATURDAY AS A WORK DAY FOR ANY PARTICULAR SERVICE OR CLASS OF EMPLOYMENTS--- WHETHER FOR RELIGIOUS OR OTHER REASONS--- IF SUCH ACTION DOES NOT INTERFERE WITH THE GOVERNMENT'S INTEREST. IF SUCH ACTION BE TAKEN, SATURDAY WOULD THEN CONSTITUTE A NONWORK DAY, IN VIEW OF WHICH THERE WOULD BE NO BREAK IN SERVICE OR LEAVE OF ABSENCE WITHOUT PAY, AND QUESTION NUMBERED 1 AS TO FIELD EMPLOYEES WOULD THUS BE ANSWERABLE IN THE AFFIRMATIVE. HOWEVER, IF SUCH ADMINISTRATIVE ACTION BE NOT TAKEN, THE ANSWER TO QUESTION NUMBERED 1 AS TO FIELD EMPLOYEES WOULD BE THE SAME AS ABOVE STATED WITH REGARD TO DEPARTMENTAL EMPLOYEES.

AS TO QUESTION NUMBERED 2, IF, AS APPEARS, THE CONDITION BE THAT A TEMPORARY EMPLOYEE ABSENTS HIMSELF FROM HIS WORK WITHOUT PAY FOR RELIGIOUS OR OTHER REASONS CONTINUOUSLY FOR A PERIOD OF SEVERAL DAYS "SUCH AS FROM THE 10TH TO THE 20TH," EITHER IN THE DEPARTMENTAL OR FIELD SERVICES, THERE WOULD RESULT A FRACTIONAL MONTH'S SERVICE AND NO ANNUAL OR SICK LEAVE WOULD ACCRUE FOR THAT MONTH.

REFERRING TO QUESTION NUMBERED 3, THE ANSWERS ABOVE STATED WITH REGARD TO ANNUAL LEAVE ARE APPLICABLE, ALSO, TO SICK LEAVE.