B-52829, OCTOBER 10, 1945, 25 COMP. GEN. 341

B-52829: Oct 10, 1945

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WILL BE AVAILABLE FOR USE AFTER THE TERMINATION OF SUCH EMERGENCY PERIOD. ANNUAL LEAVE IN EXCESS OF 60 DAYS WHICH ACCRUES TO AN EMPLOYEE WITHIN THE YEAR IN WHICH THE PRESENT NATIONAL EMERGENCY IS TERMINATED MAY BE TREATED AS ACCUMULATED LEAVE UNDER THE ACT OF DECEMBER 17. TO THE EXTENT OF THE LEAVE WHICH SHALL HAVE ACCRUED UP TO THE DATE OF SUCH TERMINATION AND WHICH SHALL HAVE REMAINED UNUSED UP TO THE END OF THE YEAR. 1945: I HAVE YOUR LETTER OF SEPTEMBER 27. IT IS THE VIEW OF THIS OFFICE THAT INSOFAR AS LEAVE WHICH ACTUALLY ACCUMULATED DURING THE EMERGENCY PERIOD PRIOR TO DECEMBER 31. OF ANY CALENDAR YEAR IS CONCERNED. IT IS ASSUMED THAT THE PRESIDENT WILL FIX A TERMINATION DAY FOR THE "NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8.

B-52829, OCTOBER 10, 1945, 25 COMP. GEN. 341

LEAVES OF ABSENCE - ANNUAL LEAVE - MAXIMUM ACCUMULATION LIMITATION ANNUAL LEAVE IN EXCESS OF 60 DAYS--- BUT NOT EXCEEDING 90 DAYS--- ACCUMULATED PURSUANT TO THE ACT OF DECEMBER 17, 1942, DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, WILL BE AVAILABLE FOR USE AFTER THE TERMINATION OF SUCH EMERGENCY PERIOD, WITHOUT LIMITATION AS TO THE TIME WITHIN WHICH IT MAY BE USED. WHILE, ORDINARILY, LEAVE ACCRUING DURING A YEAR DOES NOT BECOME ACCUMULATED LEAVE UNTIL THE END OF THAT YEAR, ANNUAL LEAVE IN EXCESS OF 60 DAYS WHICH ACCRUES TO AN EMPLOYEE WITHIN THE YEAR IN WHICH THE PRESENT NATIONAL EMERGENCY IS TERMINATED MAY BE TREATED AS ACCUMULATED LEAVE UNDER THE ACT OF DECEMBER 17, 1942, TO THE EXTENT OF THE LEAVE WHICH SHALL HAVE ACCRUED UP TO THE DATE OF SUCH TERMINATION AND WHICH SHALL HAVE REMAINED UNUSED UP TO THE END OF THE YEAR.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 10, 1945:

I HAVE YOUR LETTER OF SEPTEMBER 27, 1945, AS FOLLOWS:

THE COMMISSION HAS BEEN RECEIVING A NUMBER OF INQUIRIES CONCERNING THE DECEMBER 17, 1942 AMENDMENT OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AUTHORIZING THE ACCUMULATION OF 90 DAYS' ANNUAL LEAVE DURING THE EMERGENCY.

THE ACT OF MARCH 14, 1936, AS AMENDED BY THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, READS IN PART AS FOLLOWS:

" * * * OFFICERS AND EMPLOYEES * * * SHALL BE ENTITLED TO 26 DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR EXCLUSIVE OF SUNDAYS AND HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS: PROVIDED, FURTHER, THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939, THE LEAVE UNUSED BY THE EMPLOYEES OF THE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES, NOT IN OTHER FORM COMMUTED OR COMPENSATED, SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING NINETY DAYS. * * *.'

THE LEAVE REGULATIONS ISSUED PURSUANT TO THE ACT OF MARCH 14, 1936, AS AMENDED, DEFINES ,ACCUMULATED LEAVE" AS THE UNUSED LEAVE REMAINING TO THE CREDIT OF THE EMPLOYEE AT THE CLOSE OF ANY CALENDAR YEAR.' THE ACT STATES THAT THE LEAVE "UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS.'

IT IS THE VIEW OF THIS OFFICE THAT INSOFAR AS LEAVE WHICH ACTUALLY ACCUMULATED DURING THE EMERGENCY PERIOD PRIOR TO DECEMBER 31, OF ANY CALENDAR YEAR IS CONCERNED, THAT AMOUNT OF LEAVE REMAINS "ACCUMULATED" TO THE CREDIT OF THE EMPLOYEE AFTER THE EMERGENCY HAS CEASED TO EXIST. OTHER WORDS, THIS ACCUMULATED LEAVE WOULD REMAIN AVAILABLE FOR USE IN SUCCEEDING YEARS EVEN THOUGH ACCUMULATION OF LEAVE AFTER THE EXPIRATION OF THE EMERGENCY WOULD BE LIMITED TO 60 DAYS.

IT IS ASSUMED THAT THE PRESIDENT WILL FIX A TERMINATION DAY FOR THE "NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939.' IN THE EVENT THAT THIS TERMINATION DATE SHOULD BE FIXED ON A DATE OTHER THAN THE END OF A CALENDAR YEAR (I.E. DECEMBER 31), THE DATE FIXED UNDER THE LAW AND REGULATIONS AS THE DATE ON WHICH LEAVE IS ACCUMULATED, THE QUESTION WOULD ARISE AS TO THE ACCUMULATION OF LEAVE IN THE CASE OF AN EMPLOYEE WHO HAD MORE THAN 60 DAYS' LEAVE TO HIS CREDIT ON THE LATEST DECEMBER 31. FOR EXAMPLE, IF AN EMPLOYEE ON DECEMBER 31, 1944, HAD 75 DAYS' ACCUMULATED LEAVE AND THE PRESIDENT DECLARED THE EMERGENCY AT THE END PRIOR TO DECEMBER 31, 1945, THE QUESTION WOULD ARISE AS TO WHETHER UNDER THE PRESENT LAW THE EMPLOYEE WOULD BE ABLE TO ADD ANY PART OF THE CURRENT 26 DAYS' LEAVE FOR THE CALENDAR YEAR 1945 TO HIS DECEMBER 31, 1944, ACCUMULATION OF LEAVE. THE EMERGENCY WOULD HAVE CEASED TO EXIST PRIOR TO THE END OF THE CALENDAR YEAR ON WHICH DATE LEAVE IS ACCUMULATED.

IN VIEW OF THE CONFUSION THAT SEEMS TO EXIST CONCERNING THE PROPER INTERPRETATION TO BE PLACED UPON THE ACT OF DECEMBER 17, 1942, THE COMMISSION WOULD APPRECIATE YOUR DECISION ON THE FOLLOWING QUESTIONS:

(1) UNTIL THE PRESIDENT OR CONGRESS FIXES A SPECIFIC DATE FOR THE END OF THE EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, MAY EMPLOYEES SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, CONTINUE TO ACCUMULATE LEAVE UNTIL IT TOTALS NOT EXCEEDING 90 DAYS, SUCH ACCUMULATION, OF COURSE, TO BE IN ACCORDANCE WITH EXISTING REGULATIONS?

(2) DOES THE AMOUNT OF ANNUAL LEAVE IN EXCESS OF 60 DAYS WHICH AN EMPLOYEE HAS ACCUMULATED UNDER THE DECEMBER 17, 1942, AMENDMENT TO THE LEAVE ACT OF MARCH 14, 1936, REMAIN AVAILABLE TO HIM FOR USE IN SUCCEEDING YEARS AFTER THE EMERGENCY CEASES TO EXIST?

(3) AFTER THE EMERGENCY HAS CEASED TO EXIST AND THE ACT OF DECEMBER 17, 1942, IS NO LONGER APPLICABLE, IS THERE ANY PARTICULAR TIME WITHIN WHICH AN EMPLOYEE MUST BRING HIS ACCUMULATION OF LEAVE DOWN TO 60 DAYS?

(4) IF THE EMERGENCY SHOULD BE TERMINATED BY THE PRESIDENT PRIOR TO THE END OF A CALENDAR YEAR, WOULD AN EMPLOYEE HAVING MORE THAN 60 DAYS' ACCUMULATED LEAVE ON JANUARY 1 OF THAT YEAR BE ENTITLED TO ACCUMULATE ANY FURTHER LEAVE ON DECEMBER 31 OF THE YEAR IN WHICH THE EMERGENCY WAS TERMINATED?

AN EARLY DECISION ON THE FOREGOING QUESTIONS WOULD BE APPRECIATED.

IT IS NOTED THAT SECTION 2 (D) OF THE ANNUAL LEAVE REGULATIONS AS AMENDED BY EXECUTIVE ORDER NO. 9307, ISSUED MARCH 3, 1943, 8 F.R. 2697, SPECIFICALLY PROVIDED THAT THE LEAVE IN EXCESS OF 60 DAYS ACCUMULATED DURING THE NATIONAL EMERGENCY PURSUANT TO THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, SHOULD CONTINUE TO BE AVAILABLE TO THE EMPLOYEE AFTER THE EMERGENCY SHOULD HAVE CEASED TO EXIST, WHEREAS THE PRESENT LEAVE REGULATIONS, INCORPORATED IN EXECUTIVE ORDER NO. 9414, ISSUED JANUARY 13, 1944, AS AMENDED, ARE SILENT UPON THAT POINT. HOWEVER, IN VIEW OF WHAT IS STATED HEREINAFTER, SUCH VARIANCE APPEARS IMMATERIAL.

THE PLAIN LANGUAGE OF THE ACT OF DECEMBER 17, 1942, IS THAT THE LEAVE UNUSED DURING THE EMERGENCY, NOT IN OTHER FORM COMMUTED OR COMPENSATED, SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING 90 DAYS. THERE IS NO LIMITATION ON THE TIME FOR USE OF SUCH ACCUMULATIONS. HENCE, WITH THE TERMINATION OF THE EMERGENCY ONLY THE AUTHORITY FOR FURTHER ACCUMULATION BEYOND 60 DAYS--- NOT THE AUTHORITY FOR USE OF LEAVE ALREADY ACCUMULATED--- WILL CEASE.

THE UNMISTAKABLE INTENT OF THE AMENDMENT WAS TO PERMIT THE ACCUMULATION OF LEAVE DURING THE EMERGENCY PERIOD, WHEN THE SERVICES OF EMPLOYEES COULD ILL BE SPARED, WITH A RIGHT TO USE SUCH ACCUMULATED LEAVE AT A LATER TIME WHEN THE EMERGENCY WAS OVER THE EMPLOYEES' SERVICES WERE NO LONGER SO URGENTLY REQUIRED. TO HOLD OTHERWISE WOULD BE TO DEFEAT BY INTERPRETATION THE VERY PURPOSE OF THE AMENDMENT. THERE WOULD BE NO POINT WHATSOEVER IN PERMITTING THE EXTRA ACCUMULATION OF LEAVE WHILE THE EMERGENCY EXISTS IF IT MAY BE TAKEN ONLY BEFORE THE END OF THE EMERGENCY. THE THEORY OF ACCUMULATION OF LEAVE--- AS WELL AS THE EFFECT OF THE ACCUMULATION PROVISIONS OF THE ACT OF MARCH 14, 1936, AND THE AMENDMENT OF DECEMBER 17, 1942--- IS TO ALLOW LEAVE UNUSED DURING ONE PERIOD TO BE CARRIED FORWARD FOR USE OR OTHER DISPOSITION DURING A LATER PERIOD.

EVEN IF THERE WERE ANY DOUBT AS TO THE PROPER CONSTRUCTION OF THE AMENDMENT, SUCH DOUBT WOULD BE REMOVED BY REFERENCE TO THE LEGISLATIVE HISTORY THEREOF. HOUSE REPORT NO. 2631, 77TH CONGRESS, ON S. 2341, ENACTED AS THE ACT OF DECEMBER 17, 1942, INCLUDES A LETTER DATED AUGUST 10, 1942, FROM THE CIVIL SERVICE COMMISSION, IN WHICH THE COMMISSION STATED IN PART:

4. HOWEVER, THE UNUSUAL WORK PRESSURES OF WARTIME REQUIRE MANY EMPLOYEES TO STAY ON THE JOB AND DEFER OR FOREGO VACATIONS TO AN EXTENT WHICH WILL LEAD TO WIDESPREAD FORFEITURES OF LEAVE RIGHTS.

5. S. 2341 WILL RELIEVE THESE FORFEITURES PARTIALLY. IT WILL HAVE THE EFFECT OF RAISING FROM 60 DAYS TO 90 DAYS THE AMOUNT OF LEAVE THE EMPLOYEE MAY FOREGO DURING WARTIME AND PRESERVE FOR FUTURE USE AFTER THE WAR IS OVER. * * * FURTHER, SENATOR MEAD, WHO REPORTED THE BILL FROM THE SENATE COMMITTEE ON CIVIL SERVICE, MADE THE FOLLOWING STATEMENT DURING CONSIDERATION OF THE BILL ON THE FLOOR OF THE SENATE:

GOVERNMENT EMPLOYEES ARE NOW ALLOWED 26 DAYS ANNUAL LEAVE, AND ARE PERMITTED TO ACCUMULATE THEIR LEAVE OVER A PERIOD OF YEARS UNTIL THEY ACCUMULATE A MAXIMUM OF 60 DAYS. THIS BILL WOULD ALLOW THEM TO CONTINUE THE ACCUMULATION BY REMAINING AT THEIR POSTS UNTIL THEY ACCUMULATE A MAXIMUM OF 90 DAYS, BUT NO MORE THAN 15 DAYS TO BE ADDED IN ANY ONE YEAR. THE IDEA IS TO KEEP THEM AT WORK DURING THE EMERGENCY AND TO PERMIT THEM TO TAKE TIME OFF IN THE FUTURE WHEN THEY CAN BETTER BE SPARED. ( CONG. REC; VOL. 88, P. 6523.) HENCE, THERE WOULD SEEM TO BE NO ROOM FOR DOUBT FROM THE LANGUAGE OF THE ACT OF DECEMBER 17, 1942, OR FROM ITS LEGISLATIVE HISTORY, THAT THE LEAVE IN EXCESS OF 60 DAYS ACCUMULATED PURSUANT THERETO DURING THE EMERGENCY PERIOD WAS INTENDED TO BE, AND WILL BE, AVAILABLE FOR USE AFTER THE TERMINATION OF SUCH EMERGENCY PERIOD.

THE PROCLAMATION OF THE PRESIDENT OF SEPTEMBER 8, 1939, 4 F.R. 3851, DECLARED "THAT A NATIONAL EMERGENCY EXISTS" BUT PRESCRIBED NO TIME LIMIT OR MEANS BY WHICH THE EMERGENCY WOULD BE TERMINATED. ACCORDINGLY, THE PRESENT EMERGENCY PROPERLY MAY BE DEEMED AS CONTINUING TO EXIST UNTIL IT SHALL HAVE BEEN TERMINATED BY PROCLAMATION OF THE PRESIDENT, OR BY ACTION OF THE CONGRESS.

IN THE LIGHT OF THE FOREGOING, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE AND QUESTION 3 IN THE NEGATIVE.

WITH RESPECT TO QUESTION 4, RELATIVE TO PERMITTING THE ACCUMULATION OF ANNUAL LEAVE BEYOND 60 DAYS WITHIN A YEAR IN WHICH THE EMERGENCY IS DECLARED TERMINATED, IT MAY BE STATED THAT ORDINARILY LEAVE ACCRUING DURING A YEAR DOES NOT BECOME ACCUMULATED LEAVE UNTIL THE END OF THAT YEAR. HOWEVER, IT APPEARS TO BE THE INTENT OF THE ACT OF DECEMBER 17, 1942, TO AUTHORIZE THE ACCUMULATION, WITHIN THE LIMITATIONS THEREIN SPECIFIED, OF ALL ANNUAL LEAVE UNUSED DURING THE EMERGENCY AND NOT COMMUTED OR COMPENSATED. EFFECT COULD BE GIVEN TO THIS INTENT WITHOUT DOING VIOLENCE TO ANY RULE OF CONSTRUCTION BY ALLOWING THE ACCUMULATION, SUBJECT TO THE LIMITATIONS AS TO AMOUNTS, AT THE END OF THE YEAR IN WHICH THE EMERGENCY IS DECLARED TERMINATED, OF THAT PART OF THE ANNUAL LEAVE WHICH HAD ACCRUED UP TO THE DATE OF SUCH TERMINATION AND HAD REMAINED UNUSED TO THE END OF THE YEAR. QUESTION 4 IS ANSWERED ACCORDINGLY.