B-223452, JUL 28, 1986

B-223452: Jul 28, 1986

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WE HAVE PREVIOUSLY HELD THAT AGENCIES MAY NOT FURLOUGH EMPLOYEES SOLELY ON A HOLIDAY SINCE THE EMPLOYEES WOULD ALREADY BE IN A NON-DUTY STATUS ON THOSE HOLIDAYS. COMMITTEE ON POST OFFICE AND CIVIL SERVICE HOUSE OF REPRESENTATIVES THIS IS IN RESPONSE TO YOUR REQUEST OF JUNE 12. BY ADDING A NEW SECTION 6107 TO PRECLUDE FEDERAL EMPLOYEES FROM BEING FURLOUGHED ON A LEGAL PUBLIC HOLIDAY IF THE EMPLOYEE IS IN A PAY STATUS FOR ANY PART OF THE WORKDAY IMMEDIATELY PRECEDING OR IMMEDIATE FOLLOWING SUCH HOLIDAY. THIS PROPOSED HOLIDAY FURLOUGH PLAN WAS SUPPORTED BY AN ADVISORY STATEMENT FROM OPM. WE ALSO NOTED THAT A FURLOUGH IS DEFINED AS PLACING AN EMPLOYEE IN A TEMPORARY STATUS WITHOUT DUTIES OR PAY BECAUSE OF A LACK OF WORK OR FUNDS OR FOR OTHER NONDISCIPLINARY REASONS. 5 U.S.C.

B-223452, JUL 28, 1986

LEAVES OF ABSENCE - INVOLUNTARY LEAVE - FURLOUGH - STATUS DIGEST: PROPOSED BILL H.R. 4896, 99TH CONG., 2D SESS., WOULD AMEND TITLE 5, U.S.C. TO PROHIBIT AGENCIES FROM FURLOUGHING EMPLOYEES SOLELY ON FEDERAL HOLIDAYS. WE OFFER NO OBJECTION TO THE PROPOSED LEGISLATION WHICH WOULD CODIFY EXISTING LAW. WE HAVE PREVIOUSLY HELD THAT AGENCIES MAY NOT FURLOUGH EMPLOYEES SOLELY ON A HOLIDAY SINCE THE EMPLOYEES WOULD ALREADY BE IN A NON-DUTY STATUS ON THOSE HOLIDAYS. B-222836, MAY 8, 1986.

THE HONORABLE WILLIAM D. FORD:

CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE

HOUSE OF REPRESENTATIVES

THIS IS IN RESPONSE TO YOUR REQUEST OF JUNE 12, 1986, FOR OUR COMMENTS ON H.R. 4896, 99TH CONG., 2D SESS., A BILL TO CLARIFY EXISTING PROVISIONS OF LAW PROHIBITING THE FURLOUGHING OF FEDERAL EMPLOYEES ON LEGAL PUBLIC HOLIDAYS.

THE BILL WOULD AMEND TITLE 5, U.S.C. BY ADDING A NEW SECTION 6107 TO PRECLUDE FEDERAL EMPLOYEES FROM BEING FURLOUGHED ON A LEGAL PUBLIC HOLIDAY IF THE EMPLOYEE IS IN A PAY STATUS FOR ANY PART OF THE WORKDAY IMMEDIATELY PRECEDING OR IMMEDIATE FOLLOWING SUCH HOLIDAY. THE BILL WOULD ALSO REQUIRE THAT THE OFFICE OF PERSONNEL MANAGEMENT (OPM) PROMULGATE REGULATIONS FOR THE APPLICATION OF THIS SECTION TO EMPLOYEES ON FLEXIBLE WORK SCHEDULES AS PERMITTED UNDER 5 U.S.C. SEC. 6122.

IN OUR VIEW, THE BILL WOULD IN EFFECT AFFIRM THE EXISTING LAW. RECENTLY CONSIDERED A PROPOSAL BY THE FOOD SAFETY AND INSPECTION SERVICE OF THE DEPARTMENT OF AGRICULTURE TO FURLOUGH ITS EMPLOYEES ON THREE FEDERAL HOLIDAYS-- MEMORIAL DAY, THE FOURTH OF JULY, AND LABOR DAY. THIS PROPOSED HOLIDAY FURLOUGH PLAN WAS SUPPORTED BY AN ADVISORY STATEMENT FROM OPM, DATED MARCH 18, 1986, INFORMING FEDERAL AGENCIES THAT THEY COULD LEGALLY FURLOUGH EMPLOYEES ON A FEDERAL HOLIDAY BASED ON OPM'S INTERPRETATION OF THE APPLICABLE STATUTES AND OUR PRIOR DECISIONS IN THIS AREA.

IN OUR OPINION B-222836, MAY 8, 1986, WE DISAGREED WITH OPM'S INTERPRETATION OF THE APPLICABLE STATUTES AND OUR PRIOR DECISIONS. HELD THAT CONTRARY TO OPM'S VIEWS, OUR DECISIONS SUPPORT THE CONCLUSION THAT EMPLOYEES CANNOT BE DEPRIVED OF PAY FOR A HOLIDAY BASED ON A FURLOUGH FOR THAT DAY ALONE. WE ALSO NOTED THAT A FURLOUGH IS DEFINED AS PLACING AN EMPLOYEE IN A TEMPORARY STATUS WITHOUT DUTIES OR PAY BECAUSE OF A LACK OF WORK OR FUNDS OR FOR OTHER NONDISCIPLINARY REASONS. 5 U.S.C. SEC. 7511(A)(5). IN VIEW OF THAT DEFINITION, WE HELD THAT A "HOLIDAY FURLOUGH" WAS WITHOUT SUBSTANCE OR OPERATIVE EFFECT SINCE THE FEDERAL EMPLOYEES WOULD ALREADY BE IN A NON-DUTY STATUS ON THOSE HOLIDAYS. WE STATED FURTHER THAT IF SALARY PAYMENTS COULD BE REDUCED IN THIS MANNER, AGENCIES WOULD BE FREE TO ABOLISH ALL PAID FEDERAL HOLIDAYS AND SAVE THE ASSOCIATED SALARY COSTS SIMPLY BY DECLARING SUCH HOLIDAYS TO BE "FURLOUGH" DAYS. COPY OF OUR OPINION IS ENCLOSED FOR YOUR INFORMATION.

THE BILL IS CONSISTENT WITH OUR PRIOR OPINION, AS DISCUSSED ABOVE, AND WE HAVE NO OBJECTION TO ITS ENACTMENT.