B-40144, FEBRUARY 29, 1944, 23 COMP. GEN. 638

B-40144: Feb 29, 1944

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IS A GENERAL PROVISION APPLICABLE TO ALL COMPUTATIONS WHICH MAY BE NECESSARY IN DETERMINING THE CREDIT OF LEAVE DUE AN EMPLOYEE. A PERMANENT EMPLOYEE WHO WAS APPOINTED ON JANUARY 1. IS ENTITLED TO LEAVE CREDIT OF 7 DAYS. - THAT IS. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE CREDIT FOR A FRACTIONAL MONTH'S SERVICE. A TEMPORARY EMPLOYEE WHO WAS APPOINTED ON THE FIRST DAY OF A MONTH AND WAS ABSENT A PORTION OF THAT MONTH IS NOT ENTITLED TO ANY CREDIT FOR ANNUAL LEAVE FOR THAT MONTH. THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL SHOULD NOT BE APPROVED UNLESS AND UNTIL THERE IS A RETURN TO DUTY AND A FILING OF THE REQUIRED MEDICAL CERTIFICATE. THERE IS NO PROHIBITION IN THE ANNUAL AND SICK LEAVE REGULATIONS AGAINST THE GRANTING OF ANNUAL AND SICK LEAVE AS A CONTINUOUS PERIOD OF ABSENCE WITHOUT A RETURN TO DUTY.

B-40144, FEBRUARY 29, 1944, 23 COMP. GEN. 638

LEAVES OF ABSENCE THE PROVISION IN SECTION 4.1 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, THAT LEAVE SHALL BE CREDITED IN UNITS OF HOURS ON THE BASIS OF THE ESTABLISHED WORKDAY AND FRACTIONAL PARTS OF AN HOUR THAT EQUAL OR EXCEED 1/2 HOUR SHALL BE COUNTED AS ONE HOUR AND FRACTIONS OF LESS THAN 1/2 HOUR SHALL BE DISREGARDED, IS A GENERAL PROVISION APPLICABLE TO ALL COMPUTATIONS WHICH MAY BE NECESSARY IN DETERMINING THE CREDIT OF LEAVE DUE AN EMPLOYEE, INCLUDING COMPUTATIONS OF ANNUAL LEAVE CREDITS IN MULTIPLES OF THE HOURLY EQUIVALENT OF 1/2 DAY AND SICK LEAVE CREDITS IN MULTIPLES OF ONE HOUR UNDER SECTIONS 2.1 AND 3.1. UNDER SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT IN CREDITING ANNUAL LEAVE TO PERMANENT EMPLOYEES, THE MINIMUM CREDIT FOR LEAVE SHALL BE THE HOURLY EQUIVALENT OF 1/2 DAY AND THAT ADDITIONAL CREDITS SHALL BE IN MULTIPLES THEREOF, A PERMANENT EMPLOYEE WHO WAS APPOINTED ON JANUARY 1, 1944, AND RESIGNED APRIL 20, 1944 (DURING WHICH THERE ACTUALLY ACCRUED 7 DAYS, 6 HOURS, AND 40 MINUTES ANNUAL LEAVE), IS ENTITLED TO LEAVE CREDIT OF 7 DAYS, 4 HOURS--- NOT 7 DAYS, 7 HOURS--- THAT IS, 2 DAYS EACH FOR JANUARY, FEBRUARY AND MARCH, 1/2 DAY (4 HOURS) ON MARCH 31 (THE END OF THE QUARTER), AND ONE DAY (8 HOURS) FOR SERVICE DURING THE PERIOD APRIL 1 THROUGH 20. UNDER SECTION 2.1 (B) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT TEMPORARY EMPLOYEES SHALL BE CREDITED 2 1/2 DAYS' LEAVE FOR EACH MONTH OF SERVICE, TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE CREDIT FOR A FRACTIONAL MONTH'S SERVICE, AND, THEREFORE, A TEMPORARY EMPLOYEE WHO WAS APPOINTED ON THE FIRST DAY OF A MONTH AND WAS ABSENT A PORTION OF THAT MONTH IS NOT ENTITLED TO ANY CREDIT FOR ANNUAL LEAVE FOR THAT MONTH. SECTION 4.3 OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTING REDUCTIONS IN ANNUAL AND SICK LEAVE CREDITS OF PERMANENT EMPLOYEE WHEN ABSENT ON LEAVE WITHOUT PAY 15 OR MORE DAYS DURING A CALENDAR YEAR, CONTEMPLATES THAT REDUCTIONS OF CREDIT FOR ANNUAL AND SICK LEAVE SHALL BE COMPUTED UPON THE AGGREGATE OR CUMULATIVE PERIOD OF LEAVE WITHOUT PAY DURING THE CALENDAR YEAR. IN VIEW OF THE PROVISIONS OF SECTION 3.6 OF THE ANNUAL AND SICK LEAVE REGULATIONS, WHICH CLEARLY CONTEMPLATE A RETURN TO DUTY AND THE FILING OF A MEDICAL CERTIFICATE IN SUPPORT OF A REQUEST FOR SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE, WHERE AN EMPLOYEE, WHILE ON ANNUAL LEAVE, REQUESTS THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE AND AT THE EXPIRATION OF BOTH HIS SICK AND ANNUAL LEAVE TENDERS HIS RESIGNATION, THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL SHOULD NOT BE APPROVED UNLESS AND UNTIL THERE IS A RETURN TO DUTY AND A FILING OF THE REQUIRED MEDICAL CERTIFICATE. THERE IS NO PROHIBITION IN THE ANNUAL AND SICK LEAVE REGULATIONS AGAINST THE GRANTING OF ANNUAL AND SICK LEAVE AS A CONTINUOUS PERIOD OF ABSENCE WITHOUT A RETURN TO DUTY, EITHER AT THE TERMINATION OF SERVICE OR OTHERWISE, AND, THEREFORE, AN EMPLOYEE WHO WAS ABSENT FROM DUTY ON SICK LEAVE AND AT THE EXPIRATION OF ALL ACCRUED SICK AND ANNUAL LEAVE, TENDERED HIS RESIGNATION IS NOT REQUIRED, UNDER SECTION 3.6 OF THE SAID REGULATIONS, TO RETURN TO DUTY BEFORE THE SICK LEAVE MAY BE GRANTED. UNDER THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, AN EMPLOYEE DOES NOT IN ANY CASE EARN LEAVE ON LEAVE GRANTED OVER A PERIOD IMMEDIATELY PRECEDING SEPARATION FROM THE SERVICE, AND IF LEAVE ON LEAVE HAS BEEN GRANTED ERRONEOUSLY BECAUSE OF THE FACT THAT THE ADMINISTRATIVE OFFICE HAD NO ADVANCE INFORMATION THAT THE EMPLOYEE INTENDED TO RESIGN AT THE TERMINATION OF HIS LEAVE, A CHARGE PROPERLY IS FOR ASSERTING AGAINST THE EMPLOYEE FOR THE OVERDRAWN LEAVE REPRESENTING THE AMOUNT OF COMPENSATION WHICH ACTUALLY WAS PAID FOR THE PERIOD OF LEAVE ON LEAVE. WHILE THERE IS NO PROVISION IN THE NEW ANNUAL LEAVE REGULATIONS CORRESPONDING TO SECTION 13 OF THE OLD REGULATIONS, RESPECTING THE GRANTING RETROACTIVELY OF ANNUAL LEAVE AT THE BEGINNING OF A CALENDAR YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NON-PAY STATUS, NEVERTHELESS, INASMUCH AS PERMANENT EMPLOYEES MAY BE CREDITED UNDER SECTION 2.1 (A) OF THE NEW REGULATIONS WITH ALL OR THE QUARTERLY PORTION OF THE 26 DAYS' ANNUAL LEAVE FOR THE CALENDAR YEAR 1944, IT IS WITHIN ADMINISTRATIVE DISCRETION TO GRANT AN EMPLOYEE WHO WAS IN A LEAVE WITHOUT PAY STATUS ON DECEMBER 31, 1943, AND JANUARY 3, 1944 (THE FIRST WORKDAY OF THE YEAR), AND RETURNED TO DUTY ON JANUARY 4, 1944, ANNUAL LEAVE RETROACTIVELY TO COVER HIS ABSENCE ON JANUARY 3, 1944. WHERE A PERIOD OF LEAVE WITHOUT PAY WAS APPLIED FOR IN WRITING BY A PERMANENT EMPLOYEE AND ADMINISTRATIVELY APPROVED IN ADVANCE TO TERMINATE ON DECEMBER 31, 1943, BUT THE EMPLOYEE DID NOT RETURN TO WORK UNTIL JANUARY 4, 1944, IT IS WITHIN ADMINISTRATIVE DISCRETION TO GRANT ANNUAL LEAVE RETROACTIVELY EFFECTIVE TO JANUARY 3, 1944 (THE FIRST WORKDAY OF THE YEAR), AND PAY THE EMPLOYEE COMPENSATION FOR JANUARY 1 AND 2--- A LEGAL HOLIDAY AND A SUNDAY, RESPECTIVELY--- BUT, IF ANNUAL LEAVE IS NOT ADMINISTRATIVELY GRANTED RETROACTIVELY EFFECTIVE, THERE IS NO AUTHORITY TO PAY THE EMPLOYEE COMPENSATION FOR JANUARY 1 AND 2. THE PROVISION IN SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1944, THAT THE SEPARATION OF AN EMPLOYEE SHALL NOT BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF HIS UNUSED ANNUAL LEAVE, WAS SO PHRASED FOR THE SPECIFIC PURPOSE OF OVERCOMING THE HERETOFORE ESTABLISHED RULE (SEE 16 COMP. GEN. 899; 17 ID. 48) TO THE EFFECT THAT "PAYMENT MAY NOT BE MADE AFTER SEPARATION FROM SERVICE FOR LEAVE NOT TAKEN, NOTWITHSTANDING THE FAILURE TO RECEIVE SAME RESULTED FROM MISUNDERSTANDING, MISTAKE OR NEGLIGENCE IN THE ADMINISTRATION OF THE LEAVE LAW," AND, THEREFORE, AN EMPLOYEE MAY NOT BE EFFECTIVELY SEPARATED FROM THE SERVICE ON OR AFTER JANUARY 1, 1944, PRIOR TO THE TERMINATION OF HIS UNUSED ANNUAL LEAVE. AN EMPLOYEE WHO IS SEPARATED FROM THE SERVICE AND PAID FOR HIS ACCRUED ANNUAL LEAVE IS TO BE REGARDED DURING THE PERIOD OF TERMINAL LEAVE AS HAVING REMAINED IN THE SERVICE OF THE AGENCY IN WHICH HE LAST SERVED; RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE FROM SUCH PAYMENT; AND NO PAYMENT MAY BE MADE IF IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTES. UNDER SECTION 4.7 OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, THE AMOUNT REQUIRED TO BE REFUNDED BY AN EMPLOYEE FOR OVERDRAWN OR EXCESS ANNUAL OR SICK LEAVE OVER A PERIOD BEGINNING ON OR AFTER JANUARY 1, 1944, IS THE TOTAL AMOUNT OF COMPENSATION ACTUALLY PAID FOR THE ENTIRE PERIOD OF THE OVERDRAWN OR EXCESS LEAVE WHICH WAS ADVANCED, INCLUDING COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE PERIOD OF SUCH LEAVE. IN COMPUTING THE INDEBTEDNESS OF AN EMPLOYEE FOR WITHDRAWN OR EXCESS ANNUAL OR SICK LEAVE TAKEN OVER A PERIOD PRIOR TO JANUARY 1, 1944, UNDER THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE DURING THE PERIOD JANUARY 1, 1940, THROUGH DECEMBER 31, 1943, THERE IS NOT REQUIRED TO BE REFUNDED COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE PERIOD OF EXCESS ANNUAL OR SICK LEAVE.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, DIVISION OF CENTRAL ADMINISTRATIVE SERVICES, OFFICE FOR EMERGENCY MANAGEMENT, FEBRUARY 29, 1944:

I HAVE YOUR LETTER OF FEBRUARY 12, 1944 (FI-13) AS FOLLOWS:

IN ORDER TO CLARIFY CERTAIN PROVISIONS OF EXECUTIVE ORDER 9414, DATED JANUARY 18, 1944, PROMULGATING REVISED ANNUAL AND SICK LEAVE REGULATIONS, I WOULD APPRECIATE YOUR REPLY TO THE FOLLOWING INQUIRIES:

1. SECTION 2.1 (A) PROVIDES IN PART:

"THE MINIMUM CREDIT FOR LEAVE SHALL BE THE HOURLY EQUIVALENT OF 1/2 DAY AND THE ADDITIONAL CREDITS SHALL BE IN MULTIPLES THEREOF.'

SECTION 4.1 (A) PROVIDES:

"LEAVE SHALL BE CREDITED IN UNITS OF HOURS ON THE BASIS OF THE ESTABLISHED WORK WEEK. FRACTIONAL PARTS OF AN HOUR THAT EQUAL OR EXCEED 1/2 HOUR SHALL BE COUNTED AS ONE HOUR AND FRACTIONS OF LESS THAN 1/2 HOUR SHALL BE DISREGARDED.'

IF AN EMPLOYEE WHO IS APPOINTED ON JANUARY 1, 1944, UNDER A WAR SERVICE APPOINTMENT RESIGNS APRIL 20, 1944, CLOSE OF BUSINESS, HE HAS IN FACT EARNED 7 DAYS 6 HOURS 40 MINUTES. UNDER SECTION 4.1 (A) THE 40 MINUTES WOULD BE CONVERTED TO ONE HOUR LEAVE BRINGING HIS EARNED LEAVE UP TO 7 DAYS 7 HOURS. HOWEVER, UNDER SECTION 2.1 (A) WOULD THE EMPLOYEE BE CREDITED WITH AND RECEIVE REIMBURSEMENT ONLY FOR 7 DAYS AND 4 HOURS?

2. SECTION 14 OF EXECUTIVE ORDER 8384, DATED MARCH 29, 1940, PROVIDES IN PART:

"TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS LEAVE FOR EACH FULL MONTH OF SERVICE.' (ITALICS SUPPLIED).

IN EXECUTIVE ORDER 9414 THE WORD "FULL" PRECEDING THE PHRASE "MONTH OF SERVICE" IS OMITTED. IN 16 COMP. GEN. 934, 16 ID. 1039, IT WAS HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE FOR A FRACTIONAL MONTH OF SERVICE. IF AN EMPLOYEE EMPLOYED ON A TEMPORARY BASIS EFFECTIVE JANUARY 1, 1944, IS ABSENT ON LEAVE WITHOUT PAY FROM JANUARY 25 THRU JANUARY 29 DOES HE UNDER SECTION 2.1 (B) FORFEIT ALL CREDIT FOR ANNUAL LEAVE ACCRUED FROM JANUARY 1, THRU JANUARY 24?

2. (A) IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE DOES AN EMPLOYEE WHO IS APPOINTED ON DECEMBER 20, 1943, AND ENTERS A LEAVE WITHOUT PAY STATUS EFFECTIVE JANUARY 7, 1944, ACCRUE LEAVE UNDER SECTION 14 OF EXECUTIVE ORDER 8384 OR SECTION 2.1 (B) OF EXECUTIVE ORDER 9414, THAT IS, WOULD THE QUESTION OF ACCRUAL OF ANNUAL LEAVE IN THE EXAMPLE CITED BE DECIDED ON THE BASIS OF THE OLD REGULATIONS FOR HIS PERIOD OF SERVICE THRU DECEMBER 31, 1943, AND ON THE BASIS OF THE NEW REGULATIONS FOR THE PERIOD JANUARY 1 TO JANUARY 7, 1944?

3. DOES SECTION 4.3 CONTEMPLATE THAT NO REDUCTION IN THE EMPLOYEE'S CREDIT FOR ANNUAL LEAVE BE MADE FOR ANY ABSENCE LESS THAN 15 DAYS?

4. SECTION 4.2 (B) PROVIDES:

"ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION. IN SUCH CASES THE ACCRUAL OF LEAVE SHALL CEASE AT THE CLOSE OF THE LAST DAY ON WHICH HE WAS PRESENT FOR DUTY, AND THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE.'

SECTION 3.3. PROVIDES:

"SICK LEAVE SHALL BE GRANTED TO EMPLOYEES WHEN THEY ARE INCAPACITATED FOR THE PERFORMANCE OF THEIR DUTIES BY SICKNESS, INJURY, OR PREGNANCY AND CONFINEMENT, ETC.'

UNDER SECTION 4.2 (B) THERE ARISES THE FOLLOWING QUESTIONS: (A) WHERE AN EMPLOYEE ABSENTS HIMSELF FROM DUTY ON SICK LEAVE AND USES ALL OF HIS ACCRUED SICK AND ANNUAL LEAVE AND WHILE ON ANNUAL LEAVE REQUESTS THE SUBSTITUTION OF SICK FOR ANNUAL LEAVE AND AT THE EXPIRATION OF BOTH HIS SICK AND ANNUAL LEAVE HE TENDERS HIS RESIGNATION. IN EITHER CASES (A) OR (B) DOES THIS SECTION CONTEMPLATE AN ACTUAL RETURN TO DUTY BEFORE SICK LEAVE MAY BE GRANTED? IF THE ANSWER IS IN THE NEGATIVE WOULD THE EMPLOYEE ACCRUE LEAVE WHILE ON LEAVE IN THE CASES CITED?

5. SECTION 13 OF EXECUTIVE ORDER 8384, PROVIDES THAT ANNUAL LEAVE SHALL NOT BE GRANTED WITH PAY AT THE BEGINNING OF THE CALENDAR YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NON-PAY STATUS IN THE PRECEDING YEAR, UNLESS AND UNTIL THERE IS A RETURN TO DUTY, AT WHICH TIME LEAVE MAY BE RETROACTIVELY GRANTED. LEAVE WITHOUT PAY UNDER ANY OTHER CIRCUMSTANCES MAY NOT LATER BE CONVERTED INTO ANNUAL LEAVE.

SINCE EXECUTIVE ORDER 9414 CONTAINS NO SIMILAR PROVISION MAY AN EMPLOYEE WHO WAS IN A LEAVE WITHOUT PAY STATUS ON DECEMBER 31, 1943, AND WHO RETURNED TO DUTY ON JANUARY 4, 1944, BE RETROACTIVELY GRANTED ANNUAL LEAVE TO COVER ABSENCE ON JANUARY 4, 1944? IF THE ANSWER IS IN THE AFFIRMATIVE ASSUMING THAT LEAVE WITHOUT PAY HAD BEEN APPROVED IN ADVANCE WOULD THE EMPLOYEE BE ENTITLED TO PAY FOR JANUARY 1 AND 2 WHICH WERE A LEGAL HOLIDAY AND A SUNDAY, RESPECTIVELY?

6. SECTION 2.4 OF EXECUTIVE ORDER 9414 PROVIDES:

"AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE SHALL BE ENTITLED TO THE UNUSED ANNUAL LEAVE STANDING TO HIS CREDIT, AND THE DATE OF HIS SEPARATION SHALL BE SO FIXED AS TO PERMIT HIM TO TAKE SUCH LEAVE, AND IN NO CASE, WHETHER THE SEPARATION BE VOLUNTARY OR INVOLUNTARY, SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE: PROVIDED, THAT AN EMPLOYEE WHO ELECTS TO FORFEIT THE LEAVE STANDING TO HIS CREDIT MAY DO SO BY FILING A WRITTEN NOTICE TO SUCH EFFECT.'

DOES THIS SECTION HAVE THE LEGAL EFFECT OF PRECLUDING AN EFFECTIVE SEPARATION OF AN EMPLOYEE UNLESS THE EMPLOYEE HAS BEEN GRANTED ALL OF HIS ANNUAL LEAVE, IN THE ABSENCE OF A SPECIFIC WAIVER IN WRITING, WHETHER OR NOT THE FAILURE TO GRANT ANNUAL LEAVE IS DUE TO AN ADMINISTRATIVE ERROR?

7. SECTION II OF EXECUTIVE ORDER 8385 PROVIDES IN PART:

"IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY AMOUNT IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY.'

SECTION 4.7 OF EXECUTIVE ORDER 9414 PROVIDES:

"IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT FOUND ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL RTIFICATE.'

UNDER SECTION II CITED ABOVE IT IS SPECIFICALLY STATED THAT REIMBURSEMENT FOR ADVANCE SICK LEAVE SHALL BE MADE ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY.

SECTION 4.7 REQUIRES REIMBURSEMENT FOR THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS. WOULD THE EMPLOYEE UNDER SECTION 4.7 BE REQUIRED TO REFUND ONE DAY'S PAY FOR EACH SUNDAY OR HOLIDAY SINCE HE WOULD NOT OTHERWISE BE REQUIRED TO WORK ON SUCH DAYS?

I WOULD APPRECIATE YOUR EARLY REPLY TO THESE INQUIRIES.

THE QUESTIONS PRESENTED ARE ANSWERED IN THE ORDER STATED, AS FOLLOWS:

QUESTION 1

SECTION 2.1 (A) OF THE NEW LEAVE REGULATIONS PROVIDES, IN ITS ENTIRETY, AS FOLLOWS:

(A) PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF TWO DAYS PER CALENDAR MONTH PLUS AN ADDITIONAL 1/2 DAY IN MARCH, JUNE SEPTEMBER, AND DECEMBER TO EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS; OR, A CREDIT OF 26 DAYS MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES IN LIEU OF THE MONTHLY CREDIT: PROVIDED, THAT SHOULD AN EMPLOYEE SEPARATE FROM THE SERVICE BEFORE THE EXPIRATION OF THE CALENDAR YEAR SUCH CREDIT WILL BE REDUCED PROPORTIONATELY. THE MINIMUM CREDIT FOR LEAVE SHALL BE THE HOURLY EQUIVALENT OF 1/2 DAY, AND ADDITIONAL CREDITS SHALL BE IN MULTIPLES THEREOF.

IN DECISION OF FEBRUARY 11, 1944, B-39904, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, IT WAS STATED:

UNQUESTIONABLY, SECTION 4.1 (A), SUPRA,"IS A GENERAL PROVISION WHICH WOULD APPLY TO ALL COMPUTATIONS WHICH MAY BE NECESSARY IN DETERMINING THE CREDIT OF LEAVE DUE AN EMPLOYEE" (QUOTING FROM THE LAST PARAGRAPH OF YOUR LETTER), INCLUDING COMPUTATIONS OF ANNUAL LEAVE CREDITS IN MULTIPLES OF 4 HOURS AND SICK LEAVE CREDITS IN MULTIPLES OF 1 HOUR AS PROVIDED IN THE OTHER SECTIONS (2.1 AND 3.1) OF THE PRESIDENT'S REGULATIONS ABOVE QUOTED. HENCE, I AM IN ACCORD WITH THE VIEWS EXPRESSED IN YOUR LETTER THAT THE MINIMUM CREDIT OF 4 HOURS ANNUAL LEAVE IS EARNED IN 7 DAYS' SERVICE, RATHER THAN IN 7 1/2 DAYS' SERVICE. IT IS TO BE UNDERSTOOD, OF COURSE, THAT THE MINIMUM CREDIT OF 4 HOURS ANNUAL LEAVE AND THE MINIMUM CREDIT OF 1 HOUR SICK LEAVE FOR PERMANENT EMPLOYEES (THAT IS, EMPLOYEES OTHER THAN TEMPORARY OR INDEFINITE WHOSE LEAVE CREDITS ARE BASED ON THE SERVICE MONTH) ARE FOR CONSIDERATION ON A CALENDAR MONTH'S SERVICE BASIS--- PRIMARILY DURING A FRACTIONAL MONTH'S SERVICE AT THE BEGINNING AND ENDING OF A PERMANENT EMPLOYEE'S ENTIRE PERIOD OF SERVICE--- IT BEING FOR NOTING THAT THERE IS NO AUTHORITY UNDER THE REGULATIONS OF THE PRESIDENT TO COMBINE PARTS OF TWO CALENDAR MONTHS TO GRANT A MINIMUM ANNUAL OR SICK LEAVE CREDIT TO PERMANENT EMPLOYEES.

HENCE, THE EMPLOYEE REFERRED TO IN QUESTION 1 WILL BE ENTITLED AT THE TERMINATION OF SERVICE ON APRIL 20, 1944 TO AN ANNUAL LEAVE CREDIT OF 7 DAYS, 4 HOURS, THAT IS, DAYS EACH FOR JANUARY, FEBRUARY, AND MARCH, ONE- HALF DAY (4 HOURS) ON MARCH 31, 1944 (THE END OF THE QUARTER), AND ONE DAY (8 HOURS) FOR SERVICE FROM APRIL 1 THROUGH APRIL 20, 1944.

QUESTION 2

SECTION 1 OF THE ANNUAL LEAVE ACT OF 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 TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. * * * (ITALICS SUPPLIED).

THE RULE STATED IN THE DECISIONS TO WHICH YOU REFER (16 COMP. GEN. 934 AND 16 ID. 1039) APPLYING THE ABOVE QUOTED SENTENCE APPEARING IN THE STATUTE IS THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE CREDIT FOR A FRACTIONAL MONTH'S SERVICE. SEE 20 COMP. GEN. 827. HENCE, THERE IS NO SPECIAL SIGNIFICANCE TO BE ATTACHED TO THE FACT THAT THE WORD "FULL" APPEARING IN SECTION 14 OF THE OLD ANNUAL LEAVE REGULATIONS APPLICABLE TO TEMPORARY EMPLOYEES IS OMITTED IN SECTION 2.1 (B) OF THE NEW LEAVE REGULATIONS, PROVIDING:

(B) TEMPORARY EMPLOYEES SHALL BE CREDITED WITH LEAVE OF 2 1/2 DAYS FOR EACH MONTH OF SERVICE. AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. SEE, ALSO, SECTION 1.1 (I) OF THE REGULATIONS DEFINING "MONTH OF SERVICE" AS MEANING ,PERIOD OF THIRTY CONSECUTIVE CALENDAR DAYS. " ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION 2 (A).

QUESTION 3

SECTION 4.3 OF THE NEW LEAVE REGULATIONS PROVIDES:

WHENEVER A PERMANENT EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY 15 OR MORE DAYS DURING A CALENDAR YEAR, THE CREDITS FOR ANNUAL LEAVE SHALL BE REDUCED ONE DAY AND FOR SICK LEAVE ONE-HALF DAY FOR EACH SUCH PERIOD AGGREGATING 15 DAYS. WHENEVER SUCH ABSENCES TOTAL 90 DAYS THERE SHALL BE A FURTHER REDUCTION OF 1/2 DAY IN ANNUAL LEAVE CREDITS FOR EACH SUCH PERIOD: PROVIDED, THAT WHEN AN EMPLOYEE ABSENT BECAUSE OF INJURY RECEIVED IN LINE OF DUTY REQUESTS TO BE CARRIED ON LEAVE-WITHOUT-PAY, HE SHALL, UPON HIS RETURN TO DUTY, RECEIVE CREDIT FOR ACCRUED LEAVE COVERING THE PERIOD FOR WHICH HE WAS PAID DISABILITY COMPENSATION BY THE EMPLOYEES' COMPENSATION COMMISSION.

THAT REGULATION CONTEMPLATES THAT REDUCTIONS OF CREDIT FOR ANNUAL AND SICK LEAVE SHALL BE COMPUTED UPON THE AGGREGATE OF CUMULATIVE PERIOD OF LEAVE WITHOUT PAY DURING THE CALENDAR YEAR. NO REDUCTION IN LEAVE CREDITS IS REQUIRED FOR ANY ONE PERIOD OF ABSENCE WITHOUT PAY OF LESS THAN 15 DAYS BUT A REDUCTION IN LEAVE CREDITS IS REQUIRED IF THE PERIODS OF ABSENCE WITHOUT PAY DURING A CALENDAR YEAR EQUAL OR EXCEL 15 DAYS.

QUESTION 4

IN ADDITION TO THE REGULATIONS QUOTED IN YOUR LETTER SECTION 3.6 OF THE REGULATIONS IS FOR CONSIDERATION IN ANSWERING QUESTION 4 (B), SAID REGULATION PROVIDING AS FOLLOWS:

WHEN SICKNESS OCCURS WITHIN A PERIOD OF ANNUAL LEAVE AND LASTS IN EXCESS OF 5 WORK DAYS, THE PERIOD OF ILLNESS MAY BE CHARGED AS SICK LEAVE AND THE CHARGE AGAINST ANNUAL LEAVE REDUCED ACCORDINGLY. APPLICATION FOR SUCH SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE SHALL BE MADE WITHIN TWO DAYS AFTER RETURN TO DUTY AND SHALL BE SUPPORTED BY A MEDICAL CERTIFICATE. THERE IS NO PROHIBITION IN THE NEW REGULATIONS TO THE GRANTING OF ANNUAL AND SICK LEAVE AS A CONTINUOUS PERIOD OF ABSENCE WITHOUT A RETURN TO DUTY, EITHER AT THE TERMINATION OF SERVICE OR OTHERWISE. HOWEVER, A SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE UNDER THE CONDITIONS STATED IN SECTION 3.6 OF THE REGULATIONS, ABOVE QUOTED, CLEARLY CONTEMPLATES A RETURN TO DUTY AND A FILING OF A MEDICAL CERTIFICATE IN SUPPORT THEREOF PARTICULARLY WHEN CONSIDERED IN THE LIGHT OF THE LAST PART OF SECTION 4.2 (B) OF THE REGULATIONS. ACCORDINGLY, SUCH SUBSTITUTION SHOULD NOT BE APPROVED UNLESS AND UNTIL THERE IS A RETURN TO DUTY AND THE EMPLOYEE HAS FILED THE REQUIRED MEDICAL CERTIFICATE. HENCE, QUESTION 4 (A) IS ANSWERED IN THE NEGATIVE, AND QUESTION 4 (B) IN THE AFFIRMATIVE. THE QUESTION WITH RESPECT TO WHETHER THE EMPLOYEE WOULD ACCRUE LEAVE WHILE ON LEAVE IN THE CITED CASES, IS ANSWERED IN THE NEGATIVE. AN EMPLOYEE DOES NOT IN ANY CASE EARN LEAVE ON LEAVE GRANTED OVER A PERIOD IMMEDIATELY PRECEDING SEPARATION FROM THE SERVICE; AND IF LEAVE ON LEAVE HAS BEEN GRANTED ERRONEOUSLY BECAUSE OF THE FACT THAT THE ADMINISTRATIVE OFFICE HAD NO ADVANCE INFORMATION THAT THE EMPLOYEE INTENDED TO RESIGN AT THE TERMINATION OF HIS LEAVE, A CHARGE PROPERLY IS FOR ASSERTING AGAINST THE EMPLOYEE FOR THE OVERDRAWN LEAVE REPRESENTING THE AMOUNT OF COMPENSATION WHICH ACTUALLY WAS PAID FOR THE PERIOD OF LEAVE ON LEAVE. SEE THE ANSWER TO QUESTION 7, INFRA.

QUESTION 5

IT IS UNDERSTOOD THIS QUESTION RELATES TO PERMANENT EMPLOYEES ONLY. WHILE IT IS TRUE THAT THERE IS NO PROVISION IN THE NEW LEAVE REGULATIONS CORRESPONDING TO THE PROVISIONS CONTAINED IN SECTION 13 OF THE OLD ANNUAL LEAVE REGULATIONS, NEVERTHELESS THE FIRST QUESTION IS FOR ANSWERING IN THE AFFIRMATIVE FOR THE REASON THAT WHEN THE PERMANENT EMPLOYEE RETURNED TO DUTY ON JANUARY 4, 1944, AFTER HAVING BEEN ON LEAVE WITHOUT PAY DECEMBER 31, 1943, AND JANUARY 3, 1944, HE HAD TO HIS CREDIT AT LEAST 2 DAYS ANNUAL LEAVE FOR THE MONTH OF JANUARY, AND, WITHIN ADMINISTRATIVE DISCRETION, HE COULD HAVE BEEN CREDITED WITH ALL OR THE QUARTERLY PORTION OF THE 26 DAYS ANNUAL LEAVE FOR THE CALENDAR YEAR 1944. SEE SECTION 2.1 (A) OF THE NEW LEAVE REGULATIONS, ABOVE QUOTED. SEE, ALSO, 16 COMP. GEN. 818. REFERRING TO THE SECOND PART OF THE QUESTION, IF THE LEAVE WITHOUT PAY WAS APPLIED FOR IN WRITING AND ADMINISTRATIVELY APPROVED IN ADVANCE TO TERMINATE DECEMBER 31, 1943, THE QUESTION IS FOR ANSWERING IN THE AFFIRMATIVE; OTHERWISE, IN THE NEGATIVE. SEE 13 COMP. GEN. 206; COMPARE 13 ID. 207. OF COURSE, THE GRANTING OF ANNUAL LEAVE RETROACTIVELY EFFECTIVE IN SUCH A CASE AS HERE PRESENTED FOR JANUARY 3, 1944, IS DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE; AND IF THE CIRCUMSTANCES INCIDENT TO THE RETURN OF THE EMPLOYEE TO DUTY ON JANUARY 4, 1944, WERE SUCH AS NOT TO JUSTIFY THE GRANTING OF ANNUAL LEAVE WITH PAY FOR JANUARY 3, 1944, THE EMPLOYEE WOULD NOT BE ENTITLED TO COMPENSATION FOR JANUARY 1 AND 2, 1944.

QUESTION 6

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SECTION 2.4 OF THE NEW LEAVE REGULATIONS, QUOTED IN YOUR LETTER, WAS SO PHRASED FOR THE SPECIFIC PURPOSE OF OVERCOMING THE RULE STATED IN A NUMBER OF DECISIONS OF THIS OFFICE THAT "PAYMENT MAY NOT BE MADE AFTER SEPARATION FROM SERVICE FOR LEAVE NOT TAKEN, NOTWITHSTANDING THE FAILURE TO RECEIVE SAME RESULTED FROM MISUNDERSTANDING, MISTAKE OR NEGLIGENCE IN ADMINISTRATION OF THE LEAVE LAW.' (QUOTING FROM THE SYLLABUS OF THE DECISION OF JULY 16, 1937, 17 COMP. GEN. 48.) SEE, ALSO, 16 COMP. GEN. 899. ACCORDINGLY, THE RULE STATED IN THOSE DECISIONS AND IN OTHER DECISIONS OF SIMILAR IMPORT DOES NOT APPLY TO ANY SEPARATION ON OR AFTER JANUARY 1, 1944. OF COURSE, IT IS TO BE UNDERSTOOD THAT DURING THE PERIOD OF SUCH ANNUAL LEAVE FOR WHICH PAYMENT IS MADE, THE EMPLOYEE IS TO BE REGARDED AS HAVING REMAINED IN THE SERVICE OF THE AGENCY IN WHICH HE LAST SERVED, RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE FROM SUCH PAYMENT, AND NO PAYMENT MAY BE MADE IF IN CONTRAVENTION OF ANY STATUTE, RELATING TO DUAL COMPENSATION.

QUESTION 7

UNDER THE PLAIN TERMS OF SECTION 4.7 OF THE NEW LEAVE REGULATIONS, QUOTED IN YOUR LETTER, REFUND FOR OVERDRAWN OR EXCESS ANNUAL OR SICK LEAVE MUST BE THE TOTAL AMOUNT OF COMPENSATION ACTUALLY PAID AN EMPLOYEE FOR THE ENTIRE PERIOD OF THE OVERDRAWN OR EXCESS LEAVE WHICH WAS ADVANCED, INCLUDING COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE PERIOD OF SUCH LEAVE. THE EFFECT OF SECTION 4.7 OF THE NEW LEAVE REGULATIONS IS TO RESTORE THE RULE WHICH WAS IN EFFECT UNDER THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE PRIOR TO JANUARY 1, 1940. SEE 16 COMP. GEN. 769, 854; 17 ID. 895, 18 ID. 10; 19 ID. 794. OF COURSE, THE AMOUNT TO THE CREDIT OF THE EMPLOYEE IN THE RETIREMENT FUND IS NOT AVAILABLE NOW FOR LIQUIDATION OF THE INDEBTEDNESS. 21 COMP. GEN. 1000. THE BASIS FOR COMPUTING THE REFUND PRESCRIBED IN SECTION 11 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER 8385, DATED MARCH 29, 1940), QUOTED IN YOUR LETTER, AND IN SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940), IN EFFECT FROM JANUARY 1, 1940, THROUGH DECEMBER 31, 1943, PURSUANT TO WHICH EMPLOYEES WERE NOT REQUIRED TO REFUND COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING WITHIN A PERIOD OF EXCESS ANNUAL AND SICK LEAVE, NO LONGER IS IN EFFECT. IN THAT CONNECTION ATTENTION IS INVITED PARTICULARLY TO THE RULE STATED IN DECISION OF SEPTEMBER 16, 1940, 20 COMP. GEN. 154, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE TERMS OF THE UNIFORM SICK LEAVE REGULATIONS EFFECTIVE MARCH 2, 1940, ARE CONTROLLING IN DETERMINING WHETHER AN EMPLOYEE SEPARATED FROM THE SERVICE AFTER THAT DATE IS CHARGEABLE FOR OVERDRAWN SICK LEAVE TAKEN BEFORE THAT DATE, BUT THE AMOUNT TO BE REFUNDED FOR THE EXCESS LEAVE MUST BE COMPUTED UNDER THE REGULATIONS IN EFFECT WHEN THE LEAVE WAS TAKEN AND, HENCE, IS REQUIRED TO INCLUDE COMPENSATION FOR SUNDAYS, HOLIDAYS, AND NONWORK DAYS. 18 COMP. GEN. 383, AMPLIFIED.

ACCORDINGLY, IF THE EMPLOYEE REFERRED TO WAS ADVANCED SICK LEAVE OVER A PERIOD PRIOR TO JANUARY 1, 1944, THE QUESTION WOULD BE FOR ANSWERING IN THE NEGATIVE, BUT IF THE EMPLOYEE HAS BEEN ADVANCED SICK LEAVE OVER A PERIOD BEGINNING ON OR AFTER JANUARY 1, 1944, THE QUESTION WOULD BE FOR ANSWERING IN THE AFFIRMATIVE.