B-43726, AUGUST 21, 1944, 24 COMP. GEN. 143

B-43726, AUGUST 21, 1944, 24 COMP. GEN. 143

LEAVES OF ABSENCE - SICK - GRANTING AFTER DEATH FOR PERIOD IMMEDIATELY PRIOR TO DEATH WHILE THE SICK LEAVE REGULATIONS REQUIRE AS A CONDITION TO THE GRANTING OF ACCRUED OR ADVANCED SICK LEAVE THAT APPLICATION THEREFOR BE MADE IF AND WHEN THE EMPLOYEE RETURNS TO DUTY, NEVERTHELESS, IN THE EVENT OF AN EMPLOYEE'S DEATH BEFORE APPLICATION IS MADE, AN ADMINISTRATIVE OFFICE IS NOT PRECLUDED FROM GRANTING WITHOUT SUCH AN APPLICATION EITHER ACCRUED OR ADVANCED SICK LEAVE, WITHIN THE LIMITATIONS OF THE APPLICABLE LAW AND REGULATIONS, OVER A PERIOD IMMEDIATELY PRIOR TO DEATH RESULTING FROM THE ILLNESS OR DISABILITY WHICH CAUSED THE EMPLOYEE'S ABSENCE. WHERE AN EMPLOYEE ABSENT FROM DUTY ON ACCOUNT OF ILLNESS DIES WITHOUT MAKING APPLICATION FOR ADVANCE SICK LEAVE, THE FACT OF DEATH IS SUFFICIENT TO SHOW A "SERIOUS DISABILITY OR AILMENT" ON ACCOUNT OF WHICH ADVANCE OF LEAVE IS AUTHORIZED BY SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, AND SECTION 3.8 OF THE SICK LEAVE REGULATIONS, AND, ALSO, IS SUFFICIENT TO DISPENSE WITH THE REQUIREMENT OF A FORMAL APPLICATION AND A MEDICAL CERTIFICATE OTHERWISE REQUIRED BY THE EGULATIONS; HENCE, THE LEAVE STATUS OF THE EMPLOYEE OVER THE PERIOD PRIOR TO DEATH MAY BE CONSIDERED ADMINISTRATIVELY AFTER DEATH. THE RULE THAT THE LEAVE STATUS OF AN EMPLOYEE OVER A PERIOD PRIOR TO SEPARATION MAY BE CONSIDERED ADMINISTRATIVELY AFTER SEPARATION MAY BE APPLIED UNDER THE SICK LEAVE ACT OF MARCH 14, 1936, AND REGULATIONS THEREUNDER, SO AS TO AUTHORIZE SUBSTITUTION, AFTER THE DEATH OF AN EMPLOYEE, OF SICK LEAVE FOR LEAVE WITHOUT PAY FOR A PERIOD PRIOR TO THE DATE OF DEATH. IN CONNECTION WITH ANY CLAIM BY OR ON BEHALF OF THE ESTATE OF A DECEASED EMPLOYEE FOR UNPAID COMPENSATION DUE AT DATE OF DEATH, FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT AS REQUIRED BY GENERAL REGULATIONS NO. 42, AND SUPPLEMENTS THERETO, THE ADMINISTRATIVE REPORT SHOULD CONTAIN A STATEMENT SHOWING WHETHER SICK LEAVE WAS GRANTED TO THE EMPLOYEE OVER A PERIOD PRIOR TO THE DATE OF DEATH, AND, IF GRANTED, THE PERIOD THEREOF.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR MANPOWER COMMISSION, AUGUST 21, 1944:

I HAVE YOUR LETTER OF AUGUST 5, 1944, AS FOLLOWS:

MISS DOROTHY MURTHA, AN EMPLOYEE OF A FIELD OFFICE OF THE WAR MANPOWER COMMISSION, BECAME SERIOUSLY ILL ON MARCH 2, 1944 AND ENTERED THE HOSPITAL ON THAT DATE. HER ACCRUALS OF ANNUAL AND SICK LEAVE WERE EXHAUSTED ON MARCH 3, 1944. ON MARCH 16, 1944, MISS MURTHA'S SUPERVISOR SUBMITTED TO THE OFFICER AUTHORIZED TO APPROVE LEAVE AN APPLICATION FOR ADVANCED SICK LEAVE IN THE NAME OF THE EMPLOYEE, AND RECOMMENDED APPROVAL OF THIS ADVANCE. THIS REQUEST WAS SUBMITTED BY THE SUPERVISOR BECAUSE OF THE FACT THAT MISS MURTHA WAS TOO ILL TO MAKE THE NECESSARY REQUEST IN HER OWN WRITING. BECAUSE OF THE LACK OF AN APPLICATION SIGNED BY THE EMPLOYEE, AND BECAUSE OF THE LACK OF A DOCTOR'S CERTIFICATE FORMAL APPROVAL OF THE ADVANCE LEAVE WAS NOT GRANTED. HOWEVER, INFORMAL INDICATION WAS GIVEN THE SUPERVISOR THAT APPROVAL WOULD BE FORTHCOMING, AND THAT THE EMPLOYEE'S CURRENT SALARY CHECK, PAYABLE ON MARCH 15, COULD BE RELEASED ON THE BASIS THAT THE REQUEST FOR ADVANCED SICK LEAVE WOULD BE APPROVED. THE SUPERVISOR, HOWEVER, WITHHELD THE SALARY CHECK. ON MARCH 23, 1944 THE EMPLOYEE DIED, NOT HAVING BEEN ABLE TO MAKE THIS FORMAL APPLICATION.

SECTION 3.8 OF THE ANNUAL AND SICK LEAVE REGULATIONS PRESCRIBED UNDER EXECUTIVE ORDER NO. 9414, DATED JANUARY 13, 1944, READS AS FOLLOWS:

"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 AYS: PROVIDED, THAT NO ADVANCES OF SICK LEAVE SHALL BE MADE TO ANY EMPLOYEE UNLESS THE ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS IS FOR A PERIOD, OR PERIODS, OF FIVE OR MORE CONSECUTIVE WORK AYS; THAT EVERY APPLICATION FOR ADVANCE LEAVE SHALL BE SUPPORTED BY A MEDICAL CERTIFICATE; THAT THE TOTAL OF SUCH ADVANCES SHALL BE CHARGED AGAINST SICK LEAVE SUBSEQUENTLY CREDITED * * *.'

THE APPLICATION OF THE ABOVE QUOTED PROVISION OF THE LEAVE REGULATIONS TO THE CASE OF MISS MURTHA GIVES RISE TO THE FOLLOWING QUESTION:

1. MAY THE WRITTEN REQUEST FOR ADVANCED SICK LEAVE SUBMITTED BY THE EMPLOYEE'S SUPERVISOR IN HER BEHALF BE ACCEPTED IN LIEU OF THE EMPLOYEE'S SIGNED APPLICATION ON THE PRESCRIBED FORM SO THAT, UPON SUBSTANTIATION OF THIS REQUEST BY A MEDICAL CERTIFICATE, PAYMENT MAY BE MADE TO THE EMPLOYEE'S ESTATE FOR HER SALARY UP TO THE DAY OF HER DEATH? IF SUCH PAYMENT WERE MADE, THERE WOULD BE NO REQUIREMENT FOR THE REFUND OF THE EMPLOYEE'S INDEBTEDNESS ON ACCOUNT OF ADVANCE SICK LEAVE, UNDER THE PROVISION OF SECTION 4.7 OF THE CURRENT LEAVE REGULATIONS, WHICH READS AS FOLLOWS:

"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 * * *.'

IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, IT WOULD APPEAR THAT THE SUPERVISOR'S REQUEST WAS ACCEPTABLE EVEN THOUGH IT WAS SUBMITTED SUBSEQUENT TO THE DATE WHEN THE EMPLOYEE'S ACCRUED SICK LEAVE HAD BEEN EXHAUSTED. THIS DEDUCTION IS BASED UPON YOUR DECISION IN 23 CG 731 WHICH INDICATES THAT IF AN EMPLOYEE ON LEAVE WITHOUT PAY BECAUSE OF ILLNESS AND BEFORE RETURN TO DUTY IS QUALIFIED FOR AN ADVANCE OF SICK LEAVE, THE ADVANCE MAY BE GRANTED OVER A PERIOD THAT HAS PASSED, BEGINNING WITH THE FIRST DAY OF LEAVE WITHOUT PAY AND EXTENDING FOR A CONTINUOUS PERIOD, THAT IS, INCLUDING A PERIOD BOTH BEFORE AND AFTER THE ADMINISTRATIVE APPROVAL OF THE ADVANCE OF SICK LEAVE.

IN ADDITION TO THE BASIC QUESTION AS SUBMITTED ABOVE, THE FOLLOWING COROLLARY QUESTIONS ARE PRESENTED FOR YOUR DISCUSSION AND REPLY:

2. MAY PAYMENT BE MADE FOR ADVANCE SICK LEAVE, WHERE THE FACTS ARE THE SAME AS FOR QUESTION 1, ABOVE, EXCEPT THAT (A) WRITTEN REQUEST FOR ADVANCE SICK LEAVE HAS BEEN FILED BY THE ADMINISTRATOR OF THE EMPLOYEE'S ESTATE RATHER THAN BY THE EMPLOYEE'S SUPERVISOR; OR (B) AN ORAL REQUEST FOR ADVANCE SICK LEAVE, RATHER THAN A WRITTEN REQUEST, HAS BEEN PRESENTED BY THE EMPLOYEE OR ON HIS BEHALF; OR (C) NO REQUEST FOR ADVANCE SICK LEAVE HAS BEEN FILED OR PRESENTED BY ANYONE?

3. SECTION 3.5 OF THE LEAVE REGULATIONS PROVIDES THAT "WRITTEN APPLICATION ON THE PRESCRIBED FORM FOR GRANT OF SICK LEAVE SHALL BE FILED WITHIN TWO DAYS AFTER THE EMPLOYEE RETURNS TO DUTY.' IN THE EVENT THAT AN EMPLOYEE BY REASON OF HIS DEATH IS UNABLE TO FILE AN APPLICATION FOR ACCRUED SICK LEAVE WITHIN THE PRESCRIBED TIME (THERE HAVING BEEN NO RETURN TO DUTY BECAUSE OF THE EMPLOYEE'S DEATH) MAY THE EMPLOYEE BE GRANTED THE SICK LEAVE WITHOUT WRITTEN APPLICATION, OR WITHOUT ANY REQUEST OR APPLICATION, OR UPON APPLICATION FILED BY HIS ADMINISTRATOR, OR BY THE EMPLOYEE'S SUPERVISOR ON HIS BEHALF?

4. IS IT PROPER FOR THE OFFICER AUTHORIZED TO APPROVE LEAVE TO GRANT AN ADVANCE OF SICK LEAVE WHEN THE OFFICER HAS THE KNOWLEDGE THAT THE EMPLOYEE IS DECEASED?

5. IF THE ANSWER TO QUESTION NUMBER FOUR IS IN THE NEGATIVE, DOES THE FACT THAT INFORMAL APPROVAL OF THE GRANT OF SICK LEAVE WAS MADE PRIOR TO THE EMPLOYEE'S DEATH MODIFY THAT ANSWER? DOES THE ADMINISTRATIVE DELAY IN APPROVING THE ADVANCE OF SICK LEAVE MODIFY THE ABOVE ANSWER?

IF IT WOULD HAVE BEEN PROPER TO APPROVE THE APPLICATION FOR ADVANCED SICK LEAVE SUBMITTED BY THE SUPERVISOR PRIOR TO THE EMPLOYEE'S DEATH, IT WOULD CERTAINLY SEEM EQUITABLE THAT THE EMPLOYEE'S ESTATE SHOULD NOT SUFFER FINANCIAL LOSS BECAUSE OF AN ADMINISTRATIVE DELAY IN FORMALIZING AN APPROVAL WHICH HAD BEEN PREVIOUSLY GRANTED INFORMALLY.

PURSUANT TO GENERAL REGULATIONS OF THIS OFFICE NO. 42 DATED APRIL 6, 1925, (4 COMP. GEN. 1096, AND SUPPLEMENTS THERETO NOS. 1, 2, AND 3 DATED FEBRUARY 23, 1928, APRIL 21, 1928, AND DECEMBER 2, 1932, RESPECTIVELY (7 COMP. GEN. 848, 849; 12 ID. 673), THE CLAIM OF THE ESTATE OF DOROTHY MURTHA, DECEASED, FOR UNPAID COMPENSATION DUE HER AT DATE OF DEATH SHOULD BE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT WITH YOUR REPORT AND RECOMMENDATION.

HOWEVER, IT IS DEEMED PROPER TO ANSWER THE GENERAL QUESTIONS PRESENTED BASED UPON THE FACTS STATED IN THE CASE OF DOROTHY MURTHA AND OTHER SIMILAR CASES.

THE GRANTING OF SICK LEAVE OF ABSENCE, WITHIN THE LIMITATIONS OF APPLICABLE LAWS AND REGULATIONS, IS AN ADMINISTRATIVE MATTER NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. DECISION OF JULY 17, 1944, B-43144, 24 COMP. GEN. 27. WHILE THE LEAVE REGULATIONS DO REQUIRE APPLICATIONS FOR ACCRUED OR ADVANCED SICK LEAVE BY EMPLOYEES IF AND WHEN THEY RETURN TO DUTY, NEVERTHELESS, IT IS NOT TO BE CONCLUDED THAT SUCH REQUIREMENT PRECLUDES AN ADMINISTRATIVE OFFICE FROM GRANTING EITHER ACCRUED OR ADVANCED SICK LEAVE WITHIN THE LIMITATIONS OF THE LAW AND REGULATIONS IN DEATH CASES OVER A PERIOD IMMEDIATELY PRIOR TO DEATH RESULTING FROM THE ILLNESS OR DISABILITY WHICH CAUSED ABSENCE OF THE EMPLOYEE FROM DUTY, WITHOUT SUCH AN APPLICATION. THE FACT OF DEATH IS SUFFICIENT TO SHOW A "SERIOUS DISABILITY OR AILMENT" WITHIN THE MEANING OF SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, AND SECTION 3.8 OF THE LEAVE REGULATIONS AUTHORIZING THE ADVANCE OF SICK LEAVE NOT TO EXCEED 30 DAYS AND, ALSO, IS SUFFICIENT TO DISPENSE WITH THE REQUIREMENT OF A FORMAL APPLICATION AND A MEDICAL CERTIFICATE OTHERWISE REQUIRED BY THE REGULATIONS. HENCE, IN SUCH CASES THE LEAVE STATUS OF THE EMPLOYEE MAY BE CONSIDERED ADMINISTRATIVELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES DISCLOSED. THERE HAS BEEN RECOGNIZED FOR MANY YEARS THAT THE LEAVE STATUS OF AN EMPLOYEE OVER A PERIOD PRIOR TO SEPARATION MAY BE CONSIDERED ADMINISTRATIVELY AFTER SEPARATION. IN DECISION OF FEBRUARY 19, 1913, 19 COMP. DEC. 536, INVOLVING AN ADMINISTRATIVE ACTION TAKEN, AFTER THE RESIGNATION OF AN EMPLOYEE, TO SUBSTITUTE SICK LEAVE FOR LEAVE WITHOUT PAY FOR A PERIOD PRIOR TO RESIGNATION, IT WAS STATED AT PAGE 537, AS FOLLOWS:

YOUR ACTION WILL GO SIMPLY TO DETERMINING THE STATUS OF THE EMPLOYEE DURING THE PERIOD OF ABSENCE HE WAS IN SERVICE AND PRIOR TO THE TAKING EFFECT OF HIS RESIGNATION. THERE IS NO LIMITATION IN THE STATUTE WHICH WOULD REQUIRE YOU TO EXERCISE YOUR DISCRETION BEFORE THE EMPLOYEE'S RESIGNATION TOOK EFFECT, NOR DOES IT REQUIRE HIS RESIGNATION TO BE VIEWED AS SO HAVING FIXED HIS STATUS THAT YOU ARE PRECLUDED FROM EXERCISING YOUR DISCRETION WITH RESPECT TO THE ABSENCE PRIOR TO THE RESIGNATION.

THE STATUTE AUTHORIZES YOU TO GRANT AN EXTENSION OF LEAVE WITH PAY AND YOU ARE AUTHORIZED TO DO SO, NOT WITHSTANDING THE RESIGNATION OF THE EMPLOYEE, FOR A PERIOD OF ABSENCE PRIOR TO THE RESIGNATION WITHIN THE STATUTORY ALLOWANCE.

WHILE THAT DECISION RELATED TO LEAVE LAWS NO LONGER IN EFFECT, THE RULE HAS BEEN APPLIED, ALSO, UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161 (SEE 16 COMP. GEN. 818), AND, ALSO, MAY BE APPLIED IN DEATH CASES UNDER THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, AND THE REGULATIONS THEREUNDER. CF. 19 COMP. GEN. 716 AND SECTION 4.2 (B) OF THE LEAVE REGULATIONS APPLICABLE TO FURLOUGH WITHOUT PAY PRIOR TO SEPARATION FOR CAUSES OTHER THAN DEATH.

IN CONNECTION WITH ANY CLAIM BY OR ON BEHALF OF THE ESTATE OF A DECEASED EMPLOYEE FORWARDED TO THIS OFFICE, THE ADMINISTRATIVE REPORT SHOULD CONTAIN A STATEMENT SHOWING WHETHER SICK LEAVE WAS GRANTED (AND, IF GRANTED, THE PERIOD THEREOF) TO THE EMPLOYEES OVER A PERIOD PRIOR TO THE DATE OF DEATH.

IN VIEW OF THE ABOVE-STATED RULE, IT APPEARS UNNECESSARY TO ANSWER SPECIFICALLY THE SEVERAL QUESTIONS PRESENTED IN YOUR LETTER.