B-41136, APRIL 15, 1944, 23 COMP. GEN. 789

B-41136: Apr 15, 1944

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LEAVES OF ABSENCE THE PROVISION OF SECTION 4.8 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS THAT LEAVE WITHOUT PAY MAY BE GRANTED TO AN EMPLOYEE FOR A PERIOD NOT EXCEEDING 12 MONTHS REGARDLESS OF WHETHER HE HAS LEAVE STANDING TO HIS CREDIT WAS NOT INTENDED TO LIMIT ADMINISTRATIVE ACTION IN THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY TO A PERIOD OF 12 MONTHS. IS MERELY A LIMITATION ON THE AMOUNT OF LEAVE WITHOUT PAY THAT MAY BE GRANTED WHILE AN EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT. IT IS WITHIN ADMINISTRATIVE DISCRETION TO GRANT THE EMPLOYEE ADDITIONAL PERIODS OF LEAVE WITHOUT PAY. WHERE PROPER REDUCTIONS IN ANNUAL LEAVE CREDIT HAVE BEEN MADE PURSUANT TO SECTION 4.4 OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR A PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS WHICH IS IN EXCESS OF THREE DAYS.

B-41136, APRIL 15, 1944, 23 COMP. GEN. 789

LEAVES OF ABSENCE THE PROVISION OF SECTION 4.8 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS THAT LEAVE WITHOUT PAY MAY BE GRANTED TO AN EMPLOYEE FOR A PERIOD NOT EXCEEDING 12 MONTHS REGARDLESS OF WHETHER HE HAS LEAVE STANDING TO HIS CREDIT WAS NOT INTENDED TO LIMIT ADMINISTRATIVE ACTION IN THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY TO A PERIOD OF 12 MONTHS, IN ALL CASES, BUT IS MERELY A LIMITATION ON THE AMOUNT OF LEAVE WITHOUT PAY THAT MAY BE GRANTED WHILE AN EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT. WHERE AN EMPLOYEE HAS BEEN CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS BECAUSE OF EXTENDED ILLNESS FOR A PERIOD OF ONE YEAR OR MORE AND HAS NO UNUSED ANNUAL LEAVE TO HIS CREDIT, IT IS WITHIN ADMINISTRATIVE DISCRETION TO GRANT THE EMPLOYEE ADDITIONAL PERIODS OF LEAVE WITHOUT PAY. WHERE PROPER REDUCTIONS IN ANNUAL LEAVE CREDIT HAVE BEEN MADE PURSUANT TO SECTION 4.4 OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR A PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS WHICH IS IN EXCESS OF THREE DAYS, OR PURSUANT TO SECTION 4.3 ON ACCOUNT OF LEAVE OF ABSENCE WITHOUT PAY 15 OR MORE DAYS DURING A CALENDAR YEAR, THE REQUIREMENTS OF THE REGULATIONS IN THIS RESPECT HAVE BEEN SATISFIED, AND, THEREFORE, TO DENY, IN ADDITION THERETO, THE ONE-HALF DAY QUARTERLY LEAVE CREDIT AUTHORIZED UNDER SECTION 2.1 (A), FOR EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR AN ENTIRE QUARTER, WOULD RESULT IN A DOUBLE REDUCTION IN LEAVE CREDIT AND IS UNAUTHORIZED. UNDER SECTION 3 OF THE SICK LEAVE STATUTE OF MARCH 14, 1936, THE TERMS OF WHICH HAVE BEEN INCORPORATED IN SECTION 3.8 OF THE LEAVE REGULATIONS, AUTHORIZING THE ADVANCE OF SICK LEAVE "IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION," SICK LEAVE MAY NOT BE ADVANCED TO AN EMPLOYEE FOR ALL OF THE REASONS FOR WHICH ACCRUED SICK LEAVE MAY BE GRANTED UNDER SECTION 3.3 OF THE REGULATIONS BUT, RATHER, MAY BE ADVANCED ONLY WHEN HE HAS A SERIOUS DISABILITY OR AILMENT. SECTION 3 OF THE SICK LEAVE STATUTE OF MARCH 14, 1936, THE TERMS OF WHICH HAVE BEEN INCORPORATED IN SECTION 3.8 OF THE LEAVE REGULATIONS, AUTHORIZING THE ADVANCE OF SICK LEAVE "IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION" HAS REFERENCE TO A SERIOUS DISABILITY OR AILMENT OF THE EMPLOYEE HIMSELF AND, HENCE, DOES NOT AUTHORIZE THE GRANTING OF ADVANCE SICK LEAVE FOR HIS ABSENCE WHILE CARING FOR A MEMBER OF HIS IMMEDIATE FAMILY AFFLICTED WITH A CONTAGIOUS DISEASE, FOR WHICH ABSENCE ACCRUED SICK LEAVE MAY BE GRANTED UNDER SECTION 3.3. OF THE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 15, 1944:

I HAVE YOUR LETTER OF MARCH 31, 1944, PRESENTING FOR MY CONSIDERATION A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF THE NEW LEAVE REGULATIONS PROMULGATED IN EXECUTIVE ORDER NO. 9414 DATED JANUARY 13, 1944. THE QUESTIONS WILL BE STATED AND ANSWERED IN NUMERICAL ORDER PRESENTED.

THE FIRST THREE QUESTIONS INVOLVE APPLICATION OF SECTION 4.8 (A) OF THE NEW LEAVE REGULATIONS READING AS FOLLOWS:

(A) LEAVE WITHOUT PAY MAY BE GRANTED TO AN EMPLOYEE FOR A PERIOD NOT EXCEEDING TWELVE MONTHS REGARDLESS OF WHETHER HE HAS LEAVE STANDING TO HIS CREDIT.

QUESTION 1

DOES THIS SECTION LIMIT THE GRANTING OF LEAVE WITHOUT PAY TO A PERIOD OF TWELVE MONTHS?

THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162- -- PURSUANT TO SECTIONS 7 OF WHICH THE PRESIDENT IS AUTHORIZED TO AND DID, PROMULGATE THE NEW LEAVE REGULATIONS--- DO NOT PURPORT TO VEST IN THE PRESIDENT ANY AUTHORITY TO PROMULGATE UNIFORM REGULATIONS CONTROLLING OR LIMITING ADMINISTRATIVE ACTION OF THE VARIOUS AGENCIES OF THE GOVERNMENT IN THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY, EXCEPT SO FAR AS SUCH ABSENCE WITHOUT PAY MAY BE INVOLVED IN CONNECTION WITH THE GRANTING OF SICK OR ANNUAL LEAVE WITH PAY. HENCE, IN THE PROMULGATION OF THE NEW LEAVE REGULATIONS IT IS NOT TO BE ASSUMED THAT SECTION 4.8 (A) THEREOF WAS INTENDED TO LIMIT ADMINISTRATIVE ACTION IN THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY TO A PERIOD OF 12 MONTHS IN ALL CASES. ACCORDINGLY, I CONCUR IN THE VIEW OF THE COMMISSION EXPRESSED IN YOUR LETTER "THAT SECTION 4.8 (A) IS NOT NECESSARILY INTENDED AS A LIMITATION ON THE AMOUNT OF LEAVE WITHOUT PAY THAT MAY BE ADMINISTRATIVELY GRANTED BUT IS MERELY A LIMITATION ON THE AMOUNT THAT MAY BE GRANTED WHILE THE EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT.'

QUESTION 2

IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WHAT IS THE STATUS OF AN EMPLOYEE CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS AS A RESULT OF TRANSFER TO PRIVATE OR PUBLIC ENTERPRISE APPROVED UNDER SECTION 4 OF WAR SERVICE REGULATION IX? THE ANSWER TO QUESTION 1 MAKES IT UNNECESSARY TO ANSWER THIS QUESTION.

QUESTION 3

IS IT NECESSARY THAT AN AGENCY OR DEPARTMENT TERMINATE AN EMPLOYEE WHO HAS BEEN CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS BECAUSE OF EXTENDED ILLNESS FOR A PERIOD OF ONE YEAR OR OVER AS OF JANUARY 1, 1944, OR MAY THE AGENCY ADMINISTRATIVELY GRANT ADDITIONAL PERIODS OF LEAVE WITHOUT PAY AT ITS DISCRETION?

IN LINE WITH THE ANSWER TO QUESTION 1, IF THE EMPLOYEE ON LEAVE OF ABSENCE WITHOUT PAY AS OF JANUARY 1, 1944, FOR THE REASONS STATED, HAD NO UNUSED ANNUAL LEAVE TO HIS CREDIT, THE FIRST ALTERNATIVE QUESTION IS FOR ANSWERING IN THE NEGATIVE, AND THE SECOND ALTERNATE QUESTION, IN THE AFFIRMATIVE. SEE SECTION 9 OF THE OLD LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384.

QUESTION 4

SECTION 4.4. OF THE LEAVE REGULATIONS PROVIDES THAT "LEAVE SHALL NOT ACCRUE DURING ANY PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS WHICH IS IN EXCESS OF THREE DAYS.' DOES A PERIOD OF SUSPENSION IN EXCESS OF THREE DAYS RESULT IN LOSS OF QUARTERLY CREDIT UNDER SECTION 2.1 (A/?

SECTION 2.1 (A) OF THE NEW LEAVE REGULATIONS PROVIDES IN PERTINENT PART:

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 * * *.

THE FIRST SENTENCE OF 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. * * *

WHEN PROPER REDUCTIONS IN LEAVE CREDIT HAVE BEEN MADE PURSUANT TO SECTION 4.4 OF THE REGULATIONS (QUOTED IN THE QUESTION) FOR A PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS IN EXCESS OF THREE DAYS OR PURSUANT TO SECTION 4.3 OF THE REGULATIONS ON ACCOUNT OF LEAVE OF ABSENCE WITHOUT PAY, THE REQUIREMENTS OF THE REGULATIONS IN THIS RESPECT HAVE BEEN SATISFIED. DENY, IN ADDITION THERE, THE 1/2 DAY LEAVE CREDIT AT THE END OF A QUARTER AUTHORIZED UNDER SECTION 2.1 (A) OF THE REGULATIONS, FOR THE SAME REASON FOR WHICH REDUCTIONS IN LEAVE CREDIT ARE MADE PURSUANT TO SECTIONS 4.3 AND 4.4 OF THE REGULATIONS, WOULD RESULT IN A DOUBLE REDUCTION IN LEAVE CREDIT, NOT DIRECTED OR EVEN SUGGESTED BY THE REGULATIONS. HENCE, IT MAY BE HELD THAT LEAVE WITHOUT PAY FOR ANY REASON DOES NOT AFFECT THE APPLICATION OF SECTION 2.1 (A) SO FAR AS CONCERNS THE CREDITING OF THE 1/2 DAY AT THE END OF EACH QUARTER. THIS QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 5

(A) MAY ADVANCED SICK LEAVE BE GRANTED UNDER SECTION 3.8 OF THE REGULATIONS TO AN EMPLOYEE WHO IS NOT ILL BUT WHO IS REQUIRED TO TAKE CARE OF A MEMBER OF HER IMMEDIATE FAMILY WHO HAS SCARLET FEVER?

(B) SECTION 3.3 OF THE REGULATIONS STATES THE CONDITIONS UNDER WHICH EMPLOYEES WILL BE ENTITLED TO SICK LEAVE. SECTION 3.8 PROVIDES THAT "IN CASES OF SERIOUS DISABILITY OR AILMENTS, AND WHEN THE EXIGENCIES OF THE SITUATION SO REQUIRE SICK LEAVE MAY BE ADVANCED TO PERMANENT AND INDEFINITE EMPLOYEES NOT IN EXCESS OF THIRTY DAYS: * * *.' ARE ALL OF THE PROVISIONS OF SECTION 3.3. EQUALLY APPLICABLE TO SECTION 3.8? IN OTHER WORDS, MAY EMPLOYEES BE GRANTED ADVANCED SICK LEAVE FOR THE SAME REASONS THEY WOULD BE ENTITLED TO SICK LEAVE UNDER SECTION 3.3?

SECTION 3.3 OF THE NEW LEAVE REGULATIONS 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, OR FOR MEDICAL, DENTAL OR OPTICAL EXAMINATION OR TREATMENT, OR WHEN A MEMBER OF THE IMMEDIATE FAMILY OF THE EMPLOYEE IS AFFLICTED WITH A CONTAGIOUS DISEASE AND REQUIRES THE CARE AND ATTENDANCE OF THE EMPLOYEE, OR WHEN, THROUGH EXPOSURE TO CONTAGIOUS DISEASE, THE PRESENCE OF EMPLOYEE AT HIS POST OF DUTY WOULD JEOPARDIZE THE HEALTH OF OTHERS. THE MINIMUM CHARGE FOR SICK LEAVE SHALL BE ONE HOUR, AND ADDITIONAL LEAVE SHALL BE CHARGED IN MULTIPLES OF ONE HOUR.

SECTION 3.8 OF THE NEW LEAVE REGULATIONS PROVIDES IN PERTINENT PART:

IN CASES OF SERIOUS DISABILITY OR AILMENTS, AND WHEN THE EXIGENCIES OF THE SITUATION SO REQUIRE SICK LEAVE MAY BE ADVANCED TO PERMANENT AND INDEFINITE EMPLOYEES NOT IN EXCESS OF 30 DAYS: * * *

SECTION 3 OF THE SICK LEAVE OF MARCH 14, 1936, 49 STAT. 1162 PROVIDES:

ADMINISTRATIVE OFFICERS MAY ADVANCE THIRTY DAYS SICK LEAVE WITH PAY BEYOND ACCRUED SICK LEAVE IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.

THE TERMS OF SAID SECTION OF THE STATUTE, WHICH HAVE BEEN INCORPORATED IN SECTION 3.8 OF THE REGULATIONS, EVIDENTLY WERE INTENDED TO LIMIT THE GRANTING OF SICK LEAVE IN ADVANCE TO "CASES OF SERIOUS DISABILITY OR AILMENTS.' I FIND NO JUSTIFICATION FOR HOLDING THAT THE CLAUSE "AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION" AUTHORIZES THE ADVANCING OF SICK LEAVE IN CASES OTHER THAN THOSE OF SERIOUS DISABILITY OR AILMENTS. IT WOULD SEEM CLEAR THAT THE PURPOSE OF SAID CLAUSE WAS TO PRESCRIBE THE CONDITIONS OR CIRCUMSTANCES UNDER WHICH THE SICK LEAVE MAY BE ADVANCED IN CASES OF SERIOUS DISABILITY OR AILMENTS. WHILE THE STATUTE IS SILENT REGARDING WHOSE SERIOUS DISABILITY OR AILMENT IS MEANT, I FIND NOTHING TO WARRANT AN ASSUMPTION THAT THE CONGRESS HAD IN MIND THE SERIOUS DISABILITY OR AILMENT OF ANYONE OTHER THAN THE EMPLOYEE TO WHOM THE ADVANCING OF SICK LEAVE WAS AUTHORIZED. SECTION 3 OF THE SICK LEAVE ACT AUTHORIZING THE ADVANCE OF SICK LEAVE APPEARS INTENDED TO HAVE A MUCH MORE LIMITED APPLICATION THAN THE GENERAL PROVISIONS OF THE LAW AUTHORIZING THE GRANTING OF ACCRUED SICK LEAVE. OBVIOUSLY, ALL OF THE REASONS FOR WHICH ACCRUED SICK LEAVE MAY BE GRANTED, STATED IN SECTION 3.3 OF THE NEW LEAVE REGULATIONS, DO NOT INVOLVE A SERIOUS DISABILITY OR AILMENT OF THE EMPLOYEE. ACCORDINGLY, BOTH SUBQUESTIONS (A) AND (B) OF THIS QUESTION ARE ANSWERED IN THE NEGATIVE.