B-182040, NOV 27, 1974

B-182040, NOV 27, 1974

WHERE EMPLOYEE CHOSE TO USE ANNUAL LEAVE IN PLACE OF SICK LEAVE DURING ILLNESSES, THERE IS NO BASIS FOR RESTORING THAT LEAVE TO HIM UNDER P.L. 93 -181 SINCE THAT LAW WAS INTENDED TO COVER SITUATIONS WHEREIN EMPLOYEES HAD SCHEDULED ANNUAL LEAVE IN ADVANCE AND SUDDEN ILLNESS PREVENTED ITS USE. IN THIS CASE EMPLOYEE PURPOSELY CHOSE TO USE ANNUAL LEAVE RATHER THAN SICK LEAVE. FURTHER, PROVISIONS OF P.L. 93-181 RELATING TO LOSS OF LEAVE DUE TO ILLNESS WERE ONLY EFFECTIVE AS OF DATE OF ENACTMENT, DECEMBER 14, 1973, AND EMPLOYEE'S USE OF ANNUAL LEAVE WAS PRIOR TO THAT DATE.

GAYDEN G. MCMAIN - RESTORATION OF ANNUAL LEAVE:

THIS MATTER INVOLVES A REQUEST FOR A DECISION AS TO WHETHER, UNDER THE PROVISIONS OF THE ACT OF DECEMBER 14, 1973, PUBLIC LAW 93-181, 87 STAT. 705, MR. GAYDEN G. MCMAIN, AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, MAY HAVE ANNUAL LEAVE RESTORED WHICH HE USED IN LIEU OF SICK LEAVE DURING CERTAIN PERIODS OF ILLNESS IN CALENDAR YEARS 1971 AND 1973.

THE RECORD INDICATES THAT MR. MCMAIN IS SEEKING RESTORATION OF 193 HOURS OF ANNUAL LEAVE WHICH HE USED INSTEAD OF SICK LEAVE DURING PAY PERIODS 11, 22, 23 AND 26 IN 1971 AND PAY PERIODS 4 AND 14 IN 1973. MR. MCMAIN POINTS OUT THAT EMPLOYEES HAVE ALWAYS HAD THE OPTION OF USING ANNUAL LEAVE IN PLACE OF SICK LEAVE WHEN THE ABSENCE IS RELATED TO ILLNESS. THEREFORE, HE STATES THAT DUE TO MITIGATING CIRCUMSTANCES AND IN VIEW OF THE FACT THAT HE HAS HAD TO FORFEIT ANNUAL LEAVE YEARLY DURING THE TIME THAT HE HAS BEEN WITH THE BUREAU OF INDIAN AFFAIRS, HE FELT THAT IT WAS APPROPRIATE FOR HIM TO UTILIZE ANNUAL LEAVE IN LIEU OF SICK LEAVE DURING HIS HOSPITALIZATIONS AND ILLNESSES, ESPECIALLY SINCE ANNUAL LEAVE IS LOST AT THE END OF EACH YEAR WHILE SICK LEAVE IS CUMULATIVE. HE NOW WISHES, UNDER THE PROVISIONS OF PUBLIC LAW 93-181, TO HAVE THE ANNUAL LEAVE SO USED RESTORED TO HIM AND HIS SICK LEAVE REDUCED ACCORDINGLY.

UNDER THE PROVISIONS OF THE ABOVE-CITED LAW, AN EMPLOYEE MAY ACCUMULATE LEAVE ABOVE THE MAXIMUM PERMISSIBLE CARRY-OVER FROM ONE LEAVE YEAR TO THE NEXT IF LEAVE WAS LOST DUE TO ADMINISTRATIVE ERROR, EXIGENCIES OF PUBLIC BUSINESS OR ILLNESS, AND THROUGH NO FAULT OF THE EMPLOYEE. THE REGULATIONS AND GUIDELINES ISSUED BY THE CIVIL SERVICE COMMISSION IMPLEMENTING THE VARIOUS PROVISIONS OF THAT LWAW ARE CONTAINED IN THE ATTACHMENT TO FEDERAL PERSONNEL MANUAL (FPM) LETTER 630-22, DATED JANUARY 11, 1974.

CONCERNING LEAVE FORFEITED AS THE RESULT OF ILLNESS, THE FPM LETTER PROVIDES, IN PART, AS FOLLOWS:

"*** EMPLOYEES ALWAYS HAVE HAD THE OPTION OF USING ANNUAL LEAVE IN PLACE OF SICK LEAVE (OR NONPAY STATUS) WHEN THE ABSENCE IS RELATED TO ILLNESS AND NOTHING IN THE NEW LAW PROHIBITS THIS USE. EMPLOYEES NOW MAY HAVE ANNUAL LEAVE THAT WAS FORFEITED BECAUSE OF ILLNESS RESTORED FOR LATER USE PROVIDED

THAT THE ANNUAL LEAVE WAS SCHEDULED IN ADVANCE:

THAT THE PERIOD OF ABSENCE DUE TO THE SICKNESS OCCURRED AT SUCH A TIME LATE IN THE LEAVE YEAR OR WAS OF SUCH DURATION THAT THE ANNUAL LEAVE COULD NOT BE RESCHEDULED FOR USE BEFORE THE END OF THE YEAR TO AVOID FORFEITURE. SICKNESS, I.E., A MEDICAL OR PHYSICAL CODITION FOR WHICH A GRANT OF SICK LEAVE WOULD BE APPROVED, IS NOT IN ITSELF A BASIS FOR PERMITTING ANNUAL LEAVE TO BE FORFEITED AND SUBSEQUENTLY RESTORED FOR LATER USE. MANAGEMENT STILL HAS THE RESPONSIBILITY TO SCHEDULE OR RESCHEDULE THE USE OF ANNUAL LEAVE TO AVOID FORFEITURE EVEN THOUGH AN ABSENCE PERIOD BECAUSE OF SICKNESS OCCURS DURING THE YEAR. THIS IS ESPECIALLY TRUE WHERE IT IS KNOWN IN ADVANCE THAT A MEDICAL OR PHYSICAL CONDITION WILL REQUIRE AN ABSENCE PRIOR TO THE END OF THE LEAVE YEAR.

"*** THE LAW PROVIDES FOR THE TEMPORARY RESTORATION OF ANNUAL LEAVE FORFEITED BECAUSE OF EXIGENCIES OF THE PUBLIC BUSINESS OR SICKNESS, PROVIDED THAT THE ANNUAL LEAVE WAS SCHEDULED IN ADVANCE.

"(1) DISCUSSION. THIS PARTICULAR PROVISION RECOGNIZES AND REEMPHASIZES MANAGEMENT'S LONG-STANDING RESPONSIBILITY FOR THE PLANNING AND EFFECTIVE SCHEDULING OF ANNUAL LEAVE FOR USE THROUGH THE LEAVE YEAR. WHILE EMPLOYEES ALSO HAVE AN OBLIGATION TO REQUEST ANNUAL LEAVE IN A TIMELY MANNER, FAILURE ON THEIR PART TO DO SO DOES NOT RELIEVE MANAGEMENT OF ITS RESPONSIBILITY TO ASSURE THAT THE LEAVE IS IN FACT SCHEDULED FOR USE. WHEN AN EMPLOYEE CHOOSES NOT TO REQUEST OR TO USE ANNUAL LEAVE TO AVOID FORFEITURE, HE IS NOT ENTITIED TO HAVE THE FORFEITED LEAVE RESTORED FOR LATER USE.

"(2) CSC REGULATION.

* 630.308. SCHEDULING ANNUAL LEAVE. BEGINNING WITH THE 1974 LEAVE YEAR, BEFORE ANNUAL LEAVE FORFEITED UNDER SECTION 6304 OF TITLE 5, U.S.C. MAY BE CONSIDERED FOR RESTORATION UNDER THAT SECTION, THE DECISION TO SCHEDULE ANNUAL LEAVE FOR USE SHALL BE MADE IN WRITING BEFORE THE START OF THE THIRD BIWEEKLY PAY PERIOD PRIOR TO THE END OF THE LEAVE YEAR."

BECAUSE THE LAW WAS NOT SIGNED UNTIL DECEMBER 14, 1973, THE COMMISSION ISSUED AN INTERIM POLICY STATEMENT FOR THE 1973 LEAVE YEAR PROVIDING THAT TO HAVE LEAVE RESTORED FOR 1973 AN ILLNESS MUST HAVE OCCURRED DURING OR EXTENDED INTO THE LAST THREE BIWEEKLY PAY PERIODS OF THE 1973 LEAVE YEAR.

IT IS CLEAR FROM THE FOREGOING THAT THE INTENT OF THE LAW AND REGULATIONS IS TO AVOID THE INEQUITIES THAT RESULT IN A SITUATION WHERE AN EMPLOYEE HAS SCHEDULED ANNUAL LEAVE, GENERALLY NEAR THE END OF A LEAVE YEAR, BUT A SUDDEN ILLNESS PREVENTS HIM FROM USING THAT ANNUAL LEAVE AS PLANNED, CAUSING HIM TO FORFEIT IT.

THE CIRCUMSTANCES IN MR. MCMAIN'S CASE, HOWEVER, DO NOT APPEAR TO FALL WITHIN SUCH A SITUATION. THERE IS NO INDICATION THAT MR. MCMAIN HAD SCHEDULED ANNUAL LEAVE AND THAT THEREAFTER HIS ILLNESSES AND HOSPITALIZATIONS PREVENTED HIM FROM USING THAT LEAVE. IN FACT, IT APPEARS THAT MR. MCMAIN, KNOWING THAT HIS EXCESS ANNUAL LEAVE WOULD BE FORFEITED AT THE END OF THE LEAVE YEAR WHEREAS HIS SICK LEAVE COULD BE CARRIED OVER, PURPOSELY CHOSE TO USE ANNUAL LEAVE INSTEAD OF SICK LEAVE TO AVOID FORFEITURE. IT ALSO APPEARS THAT CERTAIN OF HIS ANNUAL LEAVE COULD HAVE BEEN RESCHEDULED FOR USE LATER IN THE LEAVE YEAR. THIS IS ESPECIALLY TRUE OF HIS ILLNESSES DURING PAY PERIODS 4 AND 14 IN 1973 AND PAY PERIOD 11 IN 1971.

HOWEVER, NOTWITHSTANDING THE FOREGOING, EVEN IF MR. MCMAIN'S SITUATION HAD COME WITHIN THE PROVISIONS OF THE LAW, PUBLIC LAW 93-181 DID NOT CONTAIN ANY RETROACTIVE PROVISIONS OTHER THAN THOSE PERTAINING TO LOSS OF ANNUAL LEAVE RESULTING FROM ADMINISTRATIVE ERROR. THIS IS CLEARLY INDICATED IN THE HOUSE REPORT ON THE BILL, H.R. REP. NO. 93 456, 93D CONG., 1ST SESS. 9 (1973):

"WITH RESPECT TO ANNUAL LEAVE LOST BECAUSE OF THE EXIGENCIES OF THE PUBLIC BUSINESS OR SICKNESS OF THE EMPLOYEE, THE AUTHORITY TO RESTORE SUCH LEAVE WOULD APPLY ONLY TO ANNUAL LEAVE WHICH WAS SCHEDULED IN ADVANCE OF THE DATE THAT THE EMPLOYEE DESIRED TO TAKE SUCH LEAVE. THESE PROVISIONS APPLY ONLY TO LEAVE WHICH IS LOST ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT."

SINCE NONE OF THE ANNUAL LEAVE WHICH MR. MCMAIN IS SEEKING TO HAVE RESTORED WAS SCHEDULED FOR USE AND WAS LOST AS THE RESULT OF AN ILLNESS OCCURRING AFTER DECEMBER 14, 1973, THE DATE OF ENACTMENT OF THE ACT, THERE IS NO BASIS FOR THE ALLOWANCE OF HIS CLAIM.