B-65103, APRIL 25, 1947, 26 COMP. GEN. 824

B-65103: Apr 25, 1947

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IS ENTITLED TO LEAVE ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE. THE DAYS ON WHICH HE IS NOT EMPLOYED ARE NOT TO BE REGARDED AS DAYS OF LEAVE-WITHOUT-PAY SUCH AS WOULD REQUIRE A REDUCTION IN LEAVE CREDITS PREVIOUSLY EARNED. NO REDUCTION IN LEAVE CREDITS IS REQUIRED FOR ABSENCES IN A NONPAY STATUS TOTALING LESS THAN THE PERIOD SPECIFIED. UNLESS THE FAILURE TO RETURN IS DUE TO CERTAIN ENUMERATED CAUSES. ARE TO BE REGARDED AS APPLICABLE WITH RESPECT TO THE ACCRUAL OF LEAVE IN A LEAVE-WITHOUT-PAY STATUS FOR A PORTION OF A BIWEEKLY PAY PERIOD. SEVERAL QUESTIONS HAVE ARISEN AS TO THEIR APPLICATION. WHICH ARE PRESENTED HEREIN FOR YOUR DECISION. (1) SECTION 1.1 (B) CONTAINS THE FOLLOWING DEFINITION OF "1PERMANENT EMPLOYEES: " "PERMANENT EMPLOYEES ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE.

B-65103, APRIL 25, 1947, 26 COMP. GEN. 824

LEAVES OF ABSENCE - "WHEN ACTUALLY EMPLOYED" EMPLOYEES; REDUCTION OF LEAVE CREDITS; ACCRUAL A "WHEN ACTUALLY EMPLOYED" EMPLOYEE, WHETHER CLASSIFIED AS "PERMANENT" OR "TEMPORARY" FOR LEAVE PURPOSES UNDER THE ANNUAL AND SICK LEAVE REGULATIONS, IS ENTITLED TO LEAVE ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE; AND THE DAYS ON WHICH HE IS NOT EMPLOYED ARE NOT TO BE REGARDED AS DAYS OF LEAVE-WITHOUT-PAY SUCH AS WOULD REQUIRE A REDUCTION IN LEAVE CREDITS PREVIOUSLY EARNED--- THE EFFECT OF A BREAK IN THE CONTINUITY OF SERVICE BEING TO PREVENT ACCRUAL OF LEAVE FOR THE MONTH OF SERVICE IN WHICH SUCH BREAK OCCURS. IN VIEW OF THE PROVISIONS IN SECTION 4.3 OF THE ANNUAL AND SICK LEAVE REGULATIONS THAT LEAVE CREDITS OF PERMANENT EMPLOYEES SHALL BE REDUCED WHENEVER THEIR ABSENCE IN A NONPAY STATUS "TOTALS" THE EQUIVALENT OF THE BASE-PAY HOURS IN ONE BIWEEKLY PERIOD, GENERALLY, NO REDUCTION IN LEAVE CREDITS IS REQUIRED FOR ABSENCES IN A NONPAY STATUS TOTALING LESS THAN THE PERIOD SPECIFIED. THE PROVISIONS OF SECTION 4.2 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS REQUIRING A RETURN TO DUTY AS A CONDITION TO THE ACCRUAL OF LEAVE IN A LEAVE-WITH-PAY STATUS, UNLESS THE FAILURE TO RETURN IS DUE TO CERTAIN ENUMERATED CAUSES, ARE TO BE REGARDED AS APPLICABLE WITH RESPECT TO THE ACCRUAL OF LEAVE IN A LEAVE-WITHOUT-PAY STATUS FOR A PORTION OF A BIWEEKLY PAY PERIOD, AND IT WOULD BE IMMATERIAL WHETHER THE FAILURE TO RETURN TO DUTY BE VOLUNTARY OR INVOLUNTARY ON THE PART OF THE EMPLOYEE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, APRIL 25, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 28, 1947, AS FOLLOWS:

IN CONNECTION WITH THE ANNUAL AND SICK LEAVE REGULATIONS REVISED BY THE COMMISSION AS OF JULY 1, 1946, SEVERAL QUESTIONS HAVE ARISEN AS TO THEIR APPLICATION, WHICH ARE PRESENTED HEREIN FOR YOUR DECISION.

(1) SECTION 1.1 (B) CONTAINS THE FOLLOWING DEFINITION OF "1PERMANENT EMPLOYEES: "

"PERMANENT EMPLOYEES ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE, OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR, OR FOR THE "DURATION OF THE JOB," OR FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER; AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.'

WE ASSUME THAT WE MAY STILL CONSIDER A "WHEN ACTUALLY EMPLOYED" EMPLOYEE APPOINTED FOR A YEAR OR LESS TO BE TEMPORARY FOR LEAVE PURPOSES. FOR THOSE APPOINTED WITH PERMANENT TENURE, OR FOR THE DURATION OF THE JOB, OR FOR A PERIOD IN EXCESS OF ONE YEAR, AND PAID "WHEN ACTUALLY EMPLOYED" WE SHOULD LIKE TO HAVE YOUR ANSWER ON THE FOLLOWING QUESTIONS.

A. WOULD SUCH EMPLOYEES EARN LEAVE ON A PAY PERIOD BASIS, SINCE THEY COME UNDER THE DEFINITION OF "PERMANENT EMPLOYEES? " WOULD THE DAYS ON WHICH THEY ARE NOT "ACTUALLY EMPLOYED" BE COUNTED AS LEAVE WITHOUT PAY FOR WHICH DEDUCTIONS WOULD BE MADE ON THE BASIS OF 1 DAY'S ANNUAL LEAVE AND 5/8 DAY'S SICK LEAVE WHEN ABSENCE IN A NONPAY STATUS AGGREGATES ONE BIWEEKLY PAY PERIOD? IF THIS IS CONTRARY TO YOUR INTERPRETATION, PLEASE ADVISE US HOW TO CREDIT SUCH EMPLOYEES WITH LEAVE, BOTH AS TO THE AMOUNT THEY EARN, AND THE UNIT OF TIME TO BE USED AS A BASIS FOR ACCRUAL.

(2) SECTION 2.1 PROVIDES THAT PERMANENT EMPLOYEES SHALL BE CREDITED WITH ANNUAL LEAVE AT THE RATE OF 1 DAY PER BIWEEKLY PAY PERIOD, WITH A MINIMUM CREDIT OF 4 HOURS AND ADDITIONAL CREDITS IN MULTIPLES THEREOF. SECTION 3.1 PROVIDES FOR SICK LEAVE CREDIT TO SUCH EMPLOYEES AT THE RATE OF 1 1/4 DAYS PER MONTH, WITH A MINIMUM CREDIT OF 1 HOUR AND ADDITIONAL CREDITS ON MULTIPLES THEREOF. IN SECTION 4.3 IT IS PROVIDED THAT WHEN A PERMANENT EMPLOYEE'S "ABSENCE IN A NONPAY STATUS TOTALS THE EQUIVALENT OF THE BASE- PAY HOURS IN 1 BIWEEKLY PAY PERIOD, THE CREDITS FOR ANNUAL LEAVE SHALL BE REDUCED 1 DAY AND FOR SICK LEAVE 5/8 DAY OFOR EACH SUCH PERIOD.' PROVISO IN THE SAME SECTION MAKES IT CLEAR THAT IF THE NONPAY STATUS IS DUE TO AN INJURY FOR WHICH THE EMPLOYEE IS PAID DISABILITY COMPENSATION THE CREDIT FOR ACCRUED LEAVE WILL BE GIVEN "UPON HIS RETURN TO DUTY.' LIKEWISE, WITH RESPECT TO THE ACCRUAL OF ANNUAL LEAVE WHILE IN A LEAVE- WITH-PAY STATUS, IT IS PROVIDED IN SECTION 4.2 (A) THAT THE CREDIT FOR ACCRUED LEAVE SHALL BE DEPENDENT UPON A RETURN TO DUTY EXCEPT IN CERTAIN SPECIFIED CASES.

IN CASES WHERE THE NONPAY STATUS OF AN EMPLOYEE IS THE EQUIVALENT OF A BIWEEKLY PAY PERIOD THE CREDITS AND REDUCTIONS OF LEAVE WILL BE EQUAL AND NO QUESTION ARISES. WHERE, HOWEVER, THE NONPAY STATUS IS EQUIVALENT TO ONLY A FRACTION OF A BIWEEKLY PAY PERIOD, LEAVE WOULD APPEAR TO BE CREDITABLE UNDER THE PROVISIONS OF SECTIONS 2.1 AND 3.1 WITH NO APPARENT PROVISION FOR MAKING A REDUCTION IN THE CREDITS BECAUSE OF THE NONPAY STATUS.

IN VIEW OF THE CLEAR INTENT OF SECTION 4.2 (A) THAT ANNUAL LEAVE SHALL NOT ACCRUE DURING TERMINAL LEAVE-WITH-PAY EXCEPT IN THE STATED EXCEPTIONS, AND ALSO IN VIEW OF THE INDICATED INTENT IN SECTION 4.3 THAT A RETURN TO DUTY SHALL BE REQUISITE TO CREDITING LEAVE WHEN THE NONPAY STATUS IS DUE TO AN INJURY FOR WHICH THE EMPLOYEE IS PAID DISABILITY COMPENSATION, THERE IS SOME DOUBT THAT THE REGULATIONS WERE INTENDED TO PERMIT THE CREDITING OF LEAVE DURING A NONPAY STATUS WHICH IS EQUIVALENT TO ONLY A FRACTION OF A PAY PERIOD AND WHICH IS NOT FOLLOWED BY A RETURN TO DUTY.

WE SHOULD LIKE TO BE ADVISED, THEREFORE, WHETHER LEAVE SHALL BE CREDITED FOR PERIODS OF NONPAY STATUS EQUIVALENT TO A FRACTION OF A PAY PERIOD REGARDLESS OF WHETHER THERE IS A RETURN TO DUTY. IF GENERALLY THERE IS NO CREDIT WHERE THERE IS NO RETURN TO DUTY DOES IT MAKE ANY DIFFERENCE WHETHER THE ENTRANCE UPON A NON-PAY STATUS OR THE FAILURE TO RETURN TO DUTY IS VOLUNTARY OR INVOLUNTARY ON THE PART OF THE EMPLOYEE?

INASMUCH AS WE DESIRE TO CLARIFY OUR OPERATING INSTRUCTIONS WITH RESPECT TO LEAVE, YOUR EARLY REPLY TO THESE QUESTIONS WILL BE APPRECIATED.

IN DECISION OF APRIL 8, 1947, B-64672, 26 COMP. GEN. 762, THERE WERE CONSIDERED THE LEAVE RIGHTS OF "WHEN ACTUALLY EMPLOYED" EMPLOYEES; AND AFTER REFERRING THEREIN TO PRIOR DECISIONS OF THIS OFFICE RESPECTING THE RIGHTS OF SUCH EMPLOYEES WHEN CLASSIFIED UNDER PREVIOUS REGULATIONS OF THE CIVIL SERVICE COMMISSION AS "INDEFINITE EMPLOYEES" FOR LEAVE PURPOSES, IT WAS STATED:

THE ELIMINATION OF THE SEPARATE DEFINITION OF "INDEFINITE EMPLOYEES" AND THE INCORPORATION THEREOF INTO THE DEFINITION OF "PERMANENT EMPLOYEES" AS CONTAINED IN THE CURRENT LEAVE REGULATIONS, IN NO WISE AFFECTS THE BASIS UPON WHICH EMPLOYEES COMING WITHIN THE FORMER DEFINITION OF "INDEFINITE EMPLOYEES" NOW WOULD BE ENTITLED TO LEAVE. CONSEQUENTLY, APPLYING THE PRINCIPLES ENUNCIATED IN THE QUOTED DECISIONS THAT PART OF THE DEFINITION OF "PERMANENT EMPLOYEES" APPEARING IN THE CURRENT LEAVE REGULATION WHICH REFERS TO EMPLOYEES PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS, IT IS CONCLUDED THAT AN EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN APPOINTMENT FOR A DEFINITE PERIOD OF TIME NOT EXCEEDING ONE YEAR, IF OTHERWISE ENTITLED THERETO, EARNS LEAVE AS A "TEMPORARY" EMPLOYEE, THAT IS, ON THE BASIS OF 2 1/2 DAYS ANNUAL LEAVE FOR EACH MONTH OF SERVICE. FURTHER, A "WHEN ACTUALLY EMPLOYED EMPLOYEE" WHETHER SERVING UNDER AN INDEFINITE APPOINTMENT OR UNDER AN APPOINTMENT FOR A DEFINITE PERIOD OF TIME NOT EXCEEDING ONE YEAR, IS ENTITLED TO LEAVE ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE ON THE BASIS EITHER OF A "PERMANENT" EMPLOYEE OR A "TEMPORARY" EMPLOYEE DEPENDING UPON THE TERMS OF HIS APPOINTMENT.

FROM THAT PART OF THE DECISION JUST QUOTED IT WILL BE SEEN THAT A "WHEN ACTUALLY EMPLOYED" EMPLOYEE, WHETHER CLASSIFIED AS "PERMANENT" OR "TEMPORARY" FOR LEAVE PURPOSES UNDER THE CURRENT LEAVE REGULATIONS, IS ENTITLED TO LEAVE ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE. HENCE, THE UNIT OF TIME TO BE USED AS A BASIS FOR THE ACCRUAL OF LEAVE BY SUCH EMPLOYEES IS EACH MONTH OF CONTINUOUS SERVICE. FURTHER, SINCE "WHEN ACTUALLY EMPLOYED" PERSONS ACCRUE LEAVE ONLY DURING PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE, ANY BREAK IN THE CONTINUITY OF SERVICE DEFEATS THEIR RIGHTS TO ACCRUE LEAVE FOR THE MONTH OF SERVICE IN WHICH SUCH BREAK OCCURS. CONSEQUENTLY, THE DAYS ON WHICH SUCH AN EMPLOYEE IS NOT EMPLOYED ARE NOT DAYS OF LEAVE-WITHOUT PAY AS WOULD REQUIRE A REDUCTION IN LEAVE CREDITS PREVIOUSLY EARNED. SEE DECISION OF APRIL 8, 1947, SUPRA. THE QUESTIONS PRESENTED UNDER PART 1 OF YOUR LETTER ARE ANSWERED ACCORDINGLY.

WITH RESPECT TO THE MATTERS DISCUSSED UNDER PART 2 OF YOUR LETTER--- WHICH, IT IS ASSUMED, RELATE TO "PERMANENT" EMPLOYEES OTHER THAN THOSE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS--- YOU ARE ADVISED THAT, IN VIEW OF THE EXPRESS PROVISION IN SECTION 4.3 OF THE CURRENT LEAVE REGULATIONS PROVIDING THAT LEAVE CREDITS SHALL BE REDUCED WHEN A NONPAY STATUS "TOTALS" THE EQUIVALENT OF THE BASE-PAY HOURS IN ONE BIWEEKLY PAY PERIOD, GENERALLY, NO REDUCTION IN LEAVE CREDITS IS REQUIRED FOR ABSENCES IN A NONPAY STATUS TOTALING LESS THAN THE PERIOD SPECIFIED. COMPARE 23 COMP. GEN. 638, 642, ANSWER TO QUESTION 3. HOWEVER, WHILE THE LEAVE REGULATIONS ARE SILENT IN RESPECT OF THE ACCRUAL OF LEAVE WHILE IN A LEAVE-WITHOUT-PAY STATUS FOR A FRACTION OF A BIWEEKLY PAY IN SECTION 4.2 (A) OF THE REGULATIONS PROVIDING THAT LEAVE SHALL ACCRUE TO AN EMPLOYEE IN A LEAVE- WITH-PAY STATUS "PROVIDED HE RETURNS TO DUTY" OR PROVIDED THE FAILURE TO RETURN TO DUTY IS DUE TO DEATH, DISABILITY, OR REDUCTION IN FORCE, FAIRLY MAY BE VIEWED AS PRECLUDING THE ACCRUAL OF LEAVE WHILE IN LEAVE STATUS, WHETHER WITH OR WITHOUT PAY, WHEN THERE IS NO RETURN TO DUTY, EXCEPT WHERE THE FAILURE TO RETURN TO DUTY ARISES FROM ANY ONE OF THE CAUSES ENUMERATED. OTHERWISE, SO FAR AS CONCERNS THE ACCRUAL OF LEAVE WHILE IN A TERMINAL LEAVE STATUS, EMPLOYEES IN A NONPAY STATUS WOULD BE IN A MORE FAVORABLE POSITION THAN THOSE IN A PAY STATUS. ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED IN PART 2 OF YOUR LETTER, YOU ARE ADVISED THAT IN THE ABSENCE OF A REGULATION BY THE CIVIL SERVICE COMMISSION TO THE CONTRARY, THE ACCRUAL OF LEAVE WHILE IN A TERMINAL LEAVE-WITHOUT-PAY STATUS SHOULD BE GOVERNED BY THE PRINCIPLES SET FORTH IN SECTION 4.2 (A) OF THE CURRENT LEAVE REGULATIONS RESPECTING THE ACCRUAL OF LEAVE WHILE IN A TERMINAL LEAVE-WITH-PAY STATUS, AND IT WOULD BE IMMATERIAL WHETHER THE FAILURE TO RETURN TO DUTY BE VOLUNTARY OR INVOLUNTARY ON THE PART OF THE EMPLOYEE.