B-67876, OCTOBER 22, 1947, 27 COMP. GEN. 227

B-67876: Oct 22, 1947

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SUBSTITUTION FOR ANNUAL LEAVE THE 30-DAY ACTIVE-DUTY PORTION OF THE ONE-YEAR REDUCTION IN FORCE PERIOD ADMINISTRATIVELY MAY BE EXTENDED TO GRANT SICK LEAVE FOR SUCH PERIOD AS MAY BE NECESSARY TO THE MAXIMUM EXTENT OF CREDITABLE SICK LEAVE IN THE CASE OF EMPLOYEES WHO ARE ON SICK LEAVE WHEN REACHED FOR REDUCTION IN FORCE. PROPERLY SUPPORTED APPLICATIONS FOR SICK LEAVE WOULD HAVE TO BE FILED. BEFORE SALARY PAYMENT IN SUCH CASE WOULD BE PROPER A PROPERLY SUPPORTED APPLICATION FOR SICK LEAVE WOULD HAVE TO BE FILED. IF THERE IS AN ADMINISTRATIVE NEED FOR THE EMPLOYEE'S SERVICES AND A DATE IS SET FOR HIS RECALL TO DUTY. THOSE QUESTIONS WILL BE ANSWERED ON THE BASIS OF THE EXISTING LEAVE LAWS AND REGULATIONS.

B-67876, OCTOBER 22, 1947, 27 COMP. GEN. 227

LEAVES OF ABSENCE - SICK - GRANTING OF DURING ONE YEAR REDUCTION IN FORCE PERIOD; SUBSTITUTION FOR ANNUAL LEAVE THE 30-DAY ACTIVE-DUTY PORTION OF THE ONE-YEAR REDUCTION IN FORCE PERIOD ADMINISTRATIVELY MAY BE EXTENDED TO GRANT SICK LEAVE FOR SUCH PERIOD AS MAY BE NECESSARY TO THE MAXIMUM EXTENT OF CREDITABLE SICK LEAVE IN THE CASE OF EMPLOYEES WHO ARE ON SICK LEAVE WHEN REACHED FOR REDUCTION IN FORCE, OR WHO BECOME ILL OR INJURED BEFORE EXPIRATION OF THE 30-DAY PERIOD; HOWEVER, BEFORE SALARY PAYMENTS IN SUCH CASES WOULD BE PROPER, PROPERLY SUPPORTED APPLICATIONS FOR SICK LEAVE WOULD HAVE TO BE FILED. THE NON-DUTY STATUS WITH PAY PORTION OF THE ONE-YEAR REDUCTION IN FORCE PERIOD ADMINISTRATIVELY MAY BE EXTENDED TO GRANT SICK LEAVE FOR SUCH PERIOD AS MAY BE NECESSARY TO THE MAXIMUM EXTENT OF CREDITABLE SICK LEAVE IN THE CASE OF AN EMPLOYEE WHO BECOMES ILL WHILE IN SUCH NON DUTY WITH PAY STATUS; HOWEVER, BEFORE SALARY PAYMENT IN SUCH CASE WOULD BE PROPER A PROPERLY SUPPORTED APPLICATION FOR SICK LEAVE WOULD HAVE TO BE FILED. UNDER THE EXISTING ANNUAL AND SICK LEAVE REGULATIONS, SICK LEAVE MAY BE SUBSTITUTED FOR ANNUAL LEAVE WITHOUT A RETURN TO DUTY IN THE CASE OF AN EMPLOYEE WHO, WHILE IN THE NON-DUTY STATUS WITH PAY PORTION OF HIS ONE- YEAR REDUCTION IN FORCE PERIOD, BECOMES ILL AND REMAINS ILL FOR AT LEAST FIVE WORKDAYS. COMPARE 23 COMP. GEN. 638. THE FURLOUGH OR LEAVE WITHOUT PAY PORTION OF AN EMPLOYEE'S ONE-YEAR REDUCTION IN FORCE PERIOD ADMINISTRATIVELY MAY NOT BE TERMINATED BECAUSE OF ILLNESS EXTENDING INTO SUCH NON-PAY PERIOD FOR THE PURPOSE OF PLACING THE EMPLOYEE IN A SICK LEAVE WITH PAY STATUS; HOWEVER, IF THERE IS AN ADMINISTRATIVE NEED FOR THE EMPLOYEE'S SERVICES AND A DATE IS SET FOR HIS RECALL TO DUTY, THE EMPLOYEE MAY BE REGARDED AS CONSTRUCTIVELY HAVING RETURNED TO DUTY, BE PLACED IN A PAY STATUS AND BE GRANTED SICK LEAVE WITH PAY IN ACCORDANCE WITH THE APPLICABLE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 22, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 7, 1947, REQUESTING DECISION OF SIX SPECIFIC QUESTIONS REGARDING THE APPLICATION OF THE SICK LEAVE LAWS AND REGULATIONS TO PERSONS RECEIVING ONE-YEAR TERMINATION NOTICES BECAUSE OF REDUCTION IN FORCE.

THOSE QUESTIONS WILL BE ANSWERED ON THE BASIS OF THE EXISTING LEAVE LAWS AND REGULATIONS, BUT THERE IS SUGGESTED THE ADVISABILITY OF AMENDING THE REGULATIONS TO SPECIFICALLY COVER THE POINTS RAISED IN YOUR LETTER. CURRENT REGULATIONS APPLICABLE TO THE QUESTIONS PRESENTED ARE SET OUT BELOW.

SECTION 20.10 OF THE RETENTION PREFERENCE REGULATION FOR USE IN REDUCTION IN FORCE PROVIDES IN PERTINENT PART:

SEC. 20.10 NOTICE TO EMPLOYEES. AN EMPLOYEE IN GROUP A-1 OR A-2 WITH COMPETITIVE STATUS AFFECTED BY A REDUCTION IN FORCE SHALL BE GIVEN AN INDIVIDUAL NOTICE IN WRITING ONE YEAR BEFORE THE ACTION BECOMES EFFECTIVE. HIS ONE-YEAR PERIOD SHALL BE COMPOSED OF, WHENEVER POSSIBLE, AT LEAST 30 DAYS IN AN ACTIVE DUTY STATUS; A NON-DUTY STATUS WITH PAY FOR THE DURATION OF HIS LEAVE, IF ANY; AND THE BALANCE OF THE YEAR IN A FURLOUGH OR LEAVE WITHOUT PAY STATUS. * * *

EACH EMPLOYEE AFFECTED BY REDUCTION IN FORCE SHALL BE GIVEN AN INDIVIDUAL NOTICE IN WRITING AT LEAST 30 DAYS BEFORE THE ACTION BECOMES EFFECTIVE. * * IF THE PERIOD OF ACTIVE DUTY AFTER THE NOTICE IS GIVEN AND THE PERIOD OF ACCRUED LEAVE TOTAL LESS THAN 30 DAYS, THE EMPLOYEE SHALL BE CARRIED IN A NON-PAY STATUS FOR THE REMAINDER OF THE 30-DAY PERIOD. * * *

SECTIONS 30.302, 30.303, 30.304, 30,305, AND 30.306 OF THE CURRENT LEAVE REGULATIONS PROVIDE:

SEC. 30.302 ACCUMULATED SICK LEAVE. UNUSED SICK LEAVE SHALL BE CUMULATIVE AND AVAILABLE FOR FUTURE USE: PROVIDED, THAT THE BALANCE TO THE CREDIT OF THE EMPLOYEE AT THE END OF ANY MONTH SHALL NOT EXCEED 90 DAYS.

SEC. 30.303 GRANT OF SICK LEAVE. 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 THE EMPLOYEE AT HIS POST OF DUTY WOULD JEOPARDIZE THE HEALTH OF OTHERS. THE MINIMUM CHARGE FOR SICK LEAVE SHALL BE 1 HOUR, AND ADDITIONAL LEAVE SHALL BE CHARGED IN MULTIPLES OF 1 HOUR.

SEC. 30.304 NOTIFICATION OF SUPERIOR. AN EMPLOYEE WHO IS ABSENT ON ACCOUNT OF SICKNESS SHALL NOTIFY HIS SUPERVISOR AS EARLY AS PRACTICABLE ON THE FIRST DAY OF SUCH ABSENCE, OR AS SOON THEREAFTER AS POSSIBLE. FAILURE TO GIVE SUCH NOTICE MAY RESULT IN THE ABSENCE BEING CHARGED TO ANNUAL SICK LEAVE OR LEAVE WITHOUT PAY, AS THE CIRCUMSTANCES MAY JUSTIFY. REQUESTS FOR SICK LEAVE FOR MEDICAL, DENTAL, OR OPTICAL EXAMINATION OR TREATMENT SHALL BE SUBMITTED FOR APPROVAL PRIOR TO THE BEGINNING OF THE LEAVE.

SEC. 30.305 APPLICATION FOR SICK LEAVE. WRITTEN APPLICATION ON THE PRESCRIBED FORM FOR GRANT OF SICK LEAVE SHALL BE FILED WITHIN TWO DAYS AFTER THE EMPLOYEE RETURNS TO DUTY. IN NO CASE SHALL A MEDICAL CERTIFICATE BE REQUIRED TO SUPPORT THE APPLICATION FOR PERIODS OF ABSENCE OF THREE DAYS OR LESS. FOR PERIODS OF ABSENCE IN EXCESS OF 3 WORK DAYS THE APPLICATION MUST BE SUPPORTED BY A MEDICAL CERTIFICATE, OR OTHER EVIDENCE ADMINISTRATIVELY ACCEPTABLE, WHICH MUST BE FILED WITHIN 15 DAYS AFTER RETURN TO DUTY: PROVIDED, THAT IN LIEU OF A MEDICAL CERTIFICATE, A SIGNED STATEMENT OF THE EMPLOYEE INDICATING THE NATURE OF THE ILLNESS AND THE REASON WHY A MEDICAL CERTIFICATE IS NOT FURNISHED MAY BE ACCEPTED WHENEVER IT IS UNREASONABLE TO OBTAIN SUCH CERTIFICATE BECAUSE OF A SHORTAGE OF PHYSICIANS, REMOTENESS OF LOCALITY, OR BECAUSE THE CIRCUMSTANCES SURROUNDING THE EMPLOYEE'S ILLNESS DO NOT REQUIRE THE SERVICES OF A PHYSICIAN. THE AGENCY SHALL DETERMINE ADMINISTRATIVELY WHETHER THE STATEMENT OF THE EMPLOYEE IS LIEU OF A MEDICAL CERTIFICATE SHALL BE CONSIDERED SUFFICIENT EVIDENCE TO SUPPORT THE REQUEST FOR SICK LEAVE.

SEC. 30.306 SICKNESS DURING ANNUAL LEAVE. WHEN SICKNESS OCCURS WITHIN A PERIOD OF ANNUAL LEAVE AND LASTS 5 OR MORE CONSECUTIVE 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 2 DAYS AFTER RETURN TO DUTY AND SHALL BE SUPPORTED BY A MEDICAL CERTIFICATE, OR OTHER EVIDENCE ADMINISTRATIVELY ACCEPTABLE TO THE SAME EXTENT PROVIDED IN SEC. 30.305. ITALICS SUPPLIED.)

YOUR QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED.

1. IN ONE CASE, AN EMPLOYEE WAS SERIOUSLY ILL AND HAD BEEN ON SICK LEAVE FOR SOME TIME WHEN HE WAS REACHED IN A REDUCTION IN FORCE. IT APPEARED PROBABLE THAT THE ILLNESS MIGHT CONTINUE FOR LONGER THAN THE 30 DAYS' ACTIVE DUTY PERIOD TO WHICH HE WAS ENTITLED. HE HAD A LARGE AMOUNT OF UNUSED SICK LEAVE TO HIS CREDIT. IN ISSUING THE ONE YEAR TERMINATION NOTICE TO SUCH AN EMPLOYEE, IS THERE ANY OBJECTION TO HAVING IT STATE THAT HE WILL BE CONTINUED ON SICK LEAVE FOR SUCH PERIOD AS MAY BE NECESSARY, TO THE MAXIMUM EXTENT OF THE SICK LEAVE HE HAS TO HIS CREDIT? IT IS RECOGNIZED THAT THE AGENCY WOULD NOT BE REQUIRED TO DO THIS. THE QUESTION IS WHETHER IT WOULD BE ILLEGAL TO DO SO IN A MERITORIOUS CASE WHEN THE AGENCY DESIRED TO TAKE SUCH ACTION.

I FIND NOTHING IN THE PROVISIONS OF THE RETENTION PREFERENCE REGULATIONS FOR USE IN FORCE, PARTICULARLY IN SECTION 20.10 THEREOF OR IN THE CURRENT SICK LEAVE REGULATIONS, THAT WOULD PRECLUDE THE ISSUANCE TO AN EMPLOYEE, ABSENT BECAUSE OF SICKNESS, OF A REDUCTION IN FORCE NOTICE WHICH INCLUDED A PROVISION THAT THE EMPLOYEE WOULD BE CARRIED IN A SICK LEAVE STATUS FOR SUCH PERIOD AS MAY BE NECESSARY TO THE MAXIMUM EXTENT OF THE SICK LEAVE TO HIS CREDIT. OF COURSE, BEFORE PAYMENT OF SALARY IN SUCH A CASE WOULD BE PROPER, THERE WOULD HAVE TO BE FILED AN APPLICATION FOR SICK LEAVE SUPPORTED BY A MEDICAL CERTIFICATE OR OTHER EVIDENCE OF SICKNESS ADMINISTRATIVELY ACCEPTABLE.

2. (A) IN A SIMILAR CASE, WHERE THE TERMINATION NOTICE HAS ALREADY BEEN ISSUED STATING THAT THE EMPLOYEE WILL BE PLACED ON ANNUAL LEAVE AT THE EXPIRATION OF 30 DAYS, MAY THE TERMINATION NOTICE BE AMENDED BEFORE THE EXPIRATION OF THE 30 DAYS TO STATE THAT HE WILL BE CONTINUED ON SICK LEAVE IF NECESSARY? (B) MAY IT BE THUS AMENDED IF AN EMPLOYEE BECOMES ILL AFTER RECEIVING THE ORIGINAL TERMINATION NOTICE?

IN 19 COMP. GEN. 716, 719, IT WAS HELD:

* * * WHEN THE TENURE OF CIVILIAN EMPLOYMENT OR AN APPOINTMENT HAS ONCE BEEN ADMINISTRATIVELY FIXED BY NOTICE TO THE EMPLOYEE OF THE TERMINATION OF HIS DUTY AND/OR PAY STATUS BY FURLOUGH WITHOUT PAY OR SEPARATION FROM THE SERVICE, THERE CAN BE NO LOSS TO THE EMPLOYEE EITHER IN PAY, TIME, OR EFFICIENCY, BY REFUSAL OF AN ADMINISTRATIVE OFFICE TO EXTEND THE PERIOD OF THE EMPLOYMENT OR APPOINTMENT BECAUSE OF SICKNESS, MILITARY DUTY, OR COURT DUTY OCCURRING DURING THE PERIOD OF LEAVE GRANTED PRIOR TO TERMINATION OF SERVICES BY FURLOUGH OR OTHERWISE.

ACCORDINGLY, REFERRING TO QUESTIONS NUMBERED FROM 1 TO 4, INCLUSIVE, YOU ARE ADVISED THAT WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OR SEPARATION FROM THE SERVICE OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTION 8 AND 9 OF THE ANNUAL LEAVE REGULATIONS, OF WHICH THE EMPLOYEE HAS HAD NOTICE, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED BEYOND THE DATE ALREADY FIXED FOR THE COMMENCEMENT OF THE FURLOUGH OR THE SEPARATION FROM THE SERVICE FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT. THE RULE IS THE SAME WHETHER THE APPLICATION FOR EXTENSION OF LEAVE ON ACCOUNT OF SUBPOENA FOR COURT DUTY, SICKNESS, ETC., IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY.

IN APPLYING THAT DECISION THERE IS FOR CONSIDERATION THE PROPOSITION THAT THE GRANTING OF SICK LEAVE OF ABSENCE WITHIN THE LIMITATIONS OF APPLICABLE LAWS AND REGULATIONS PRIMARILY IS AN ADMINISTRATIVE MATTER NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. 24 COMP. GEN. 143. IN LINE WITH THE ABOVE, THEREFORE, IT MAY BE STATED THAT, ALTHOUGH THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF AN EMPLOYEE BE EXTENDED BEYOND THE DATE ALREADY FIXED FOR THE TERMINATION OF HIS ACTIVE DUTY STATUS FOR THE PURPOSE OF GRANTING SICK LEAVE, THERE IS NOTHING WHICH WOULD PROHIBIT ADMINISTRATIVE ACTION EXTENDING THE PAY STATUS OF AN EMPLOYEE BEYOND SUCH DATE FOR THE PURPOSE OF GRANTING SICK LEAVE. CF. 22 COMP. GEN. 533, 536. ACCORDINGLY, BOTH PARTS OF THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE.

3. IN ANOTHER CASE, AN EMPLOYEE WHO HAD RECEIVED THE USUAL ONE-YEAR TERMINATION NOTICE AND WAS SERVING OUT THE 30-DAY ACTIVE DUTY PERIOD WAS INJURED ON DUTY. MAY THE NOTICE TO SUCH EMPLOYEE BE AMENDED TO CARRY HIM ON SICK LEAVE UNTIL HIS RECOVERY OR THE EXHAUSTION OF HIS SICK LEAVE?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE THE ANSWER TO QUESTION 2.

4. IN A DIFFERENT CASE, AN EMPLOYEE WHOSE SERVICES WERE URGENTLY NEEDED FOR SOME TIME PRIOR TO THE REDUCTION IN FORCE AND FOR THE ENTIRE ACTIVE DUTY PERIOD, POSTPONED A NECESSARY SURGICAL OPERATION UNTIL THE PERIOD WHEN IT WAS EXPECTED HE WOULD BE IN A NON-DUTY STATUS. IF IT IS DECIDED THAT AN EMPLOYEE WHO WAS ILL BEFORE THE END OF THE 30-DAY PERIOD MAY BE CARRIED ON SICK LEAVE BEYOND THAT PERIOD, MAY THE SAME PRIVILEGE BE GRANTED TO THIS EMPLOYEE? IF SO, IS IT REQUIRED THAT THE USE OF THE SICK LEAVE BE OFFICIALLY AUTHORIZED BEFORE THE END OF THE ACTIVE-DUTY PERIOD?

ASSUMING THAT YOUR USE OF THE TERM,"NON-DUTY STATUS," HAS REFERENCE TO NON-DUTY STATUS WITH PAY AS CONTEMPLATED BY THE REGULATIONS, SUPRA, THE FIRST PART OF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND THE LAST PART IS ANSWERED IN THE NEGATIVE. SEE THE ANSWERS TO QUESTIONS 1 AND 2.

5. (A) IF AN EMPLOYEE BECOMES ILL WHILE ON ANNUAL LEAVE FOLLOWING THE 30- DAY ACTIVE DUTY PERIOD, AND REMAINS FOR AT LEAST FIVE WORK-DAYS, MAY SICK LEAVE BE SUBSTITUTED FOR THE ANNUAL LEAVE UPON SUBMISSION OF A MEDICAL CERTIFICATE, WITHIN THE DISCRETION OF THE EMPLOYING AGENCY? (B) IF SUCH SUBSTITUTION IS POSSIBLE ONLY UPON RETURN TO DUTY, MAY ENTRY ON DUTY IN A DIFFERENT AGENCY BEFORE FINAL SEPARATION BE REGARDED AS A RETURN TO DUTY FOR THIS PURPOSE? (C) IF SO, WHICH AGENCY WOULD ACCEPT THE MEDICAL CERTIFICATE AND APPROVE SUCH SUBSTITUTION?

IT WAS HELD IN 23 COMP. GEN. 638, 643--- UNDER WORDING THEN APPEARING IN THE LEAVE REGULATIONS (SECTION 3.6) WHICH SUBSTANTIALLY IS THE SAME AS THAT APPEARING IN 30.306 OF THE CURRENT LEAVE REGULATIONS, SUPRA--- THAT THERE COULD BE NO SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE UNTIL THERE WAS A RETURN TO DUTY. TO SOME EXTENT THAT DECISION TURNED UPON AN ADDITIONAL PROVISION OF THE REGULATIONS (SECTION 4.2 (B) ( WHICH SINCE HAS BEEN ELIMINATED AND WHICH PROVIDED THAT THE FINAL DATE OF SEPARATION COULD NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE. THE PROVISIONS OF SECTION 30.306 OF THE CURRENT LEAVE REGULATIONS WHICH REQUIRE THAT AN APPLICATION FOR SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE SHALL BE MADE WITHIN TWO DAYS AFTER RETURN TO DUTY PRIMARILY APPEAR TO BE FOR APPLICATION WHERE THERE ACTUALLY IS A RETURN TO DUTY. THERE EXISTS NO COMPARABLE REGULATION FOR THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE WHERE THERE IS NO RETURN TO DUTY. IN THE ABSENCE OF SUCH A REGULATION AND, ALSO, IN THE ABSENCE OF A REGULATION SUCH AS FORMERLY APPEARED WHICH PROVIDED THAT THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE THERE IS NO COGENT REASON TO CONCLUDE THAT SICK LEAVE NOW MAY NOT BE SUBSTITUTED FOR ANNUAL LEAVE WITHOUT A RETURN TO DUTY. HENCE, IT IS CONCLUDED THAT UNDER EXISTING LEAVE REGULATIONS THE HOLDING IN 23 COMP. GEN. 638, 643, THAT THERE MAY NOT BE A SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE NO LONGER NEED BE FOLLOWED. ACCORDINGLY, QUESTION 5 (A) IS ANSWERED IN THE AFFIRMATIVE RENDERING UNNECESSARY ANY ANSWERS TO QUESTIONS 5 (B) AND 5 (C).

6. (A) IF AN EMPLOYEE BECOMES ILL DURING ANNUAL LEAVE AND THE ILLNESS CONTINUES INTO THE PERIOD WHICH WAS TO BE NON-PAY STATUS, IS IT WITHIN ADMINISTRATIVE DISCRETION TO FOLLOW THE ANNUAL LEAVE BY SICK LEAVE AND THUS POSTPONE THE DATE HE WOULD GO INTO NON-PAY STATUS? (B) IF ILLNESS BEGINS DURING THE PERIOD OF NON-PAY STATUS, IS IT WITHIN ADMINISTRATIVE DISCRETION TO TERMINATE THE NON-PAY STATUS IN ORDER TO PLACE THE EMPLOYEE ON SICK LEAVE? PART (A) OF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE THE ANSWERS TO QUESTIONS 1, 2, AND 5. WITH REFERENCE TO PART (B) OF THIS QUESTION, IT SHOULD BE NOTED THAT THE SICK LEAVE REGULATIONS ARE BASED UPON THE ACT OF MARCH 14, 1936, 49 STAT. 1162, AS AMENDED BY THE ACT OF MARCH 2, 1940, 54 STAT. 38. THE ACT OF MARCH 14, 1936, DURING ITS LEGISLATIVE HISTORY WAS KNOWN AS H.R. 8459, 74TH CONGRESS, WHICH HAD TAKEN THE PLACE OF H.R. 5153, UPON WHICH A HEARING WAS HELD BEFORE THE COMMITTEE ON THE CIVIL SERVICE, HOUSE OF REPRESENTATIVES. IT IS APPARENT FROM A READING OF THAT HEARING THAT THE EXTENSION OF SICK LEAVE BENEFITS WAS URGED UPON CONGRESS AS A MEASURE TO PREVENT AN EMPLOYEE FROM LOSING THE SALARY WHICH HE OTHERWISE WOULD RECEIVE WHEN HE WAS PREVENTED BY SICKNESS FROM PERFORMING HIS USUAL DUTIES. ALSO, IT IS APPARENT THAT THE PURPOSE OF THE LAWS GRANTING SICK LEAVE IS TO PROVIDE A MEANS WHEREBY AN EMPLOYEE WHO OTHERWISE WOULD BE IN A PAY STATUS, BUT WHO IS ABSENT FROM WORK ON ACCOUNT OF SICKNESS, MAY CONTINUE TO REMAIN IN A PAY STATUS. PRIMARILY, THE GRANTING OF SICK LEAVE IS THE EXCUSING ON ACCOUNT OF SICKNESS OF AN EMPLOYEE FROM HIS NORMAL DUTIES WITHOUT LOSS OF PAY. NECESSARILY, THE STATUTE PRESUPPOSES THAT THE EMPLOYEE, BUT FOR HIS SICKNESS, WOULD BE IN A PAY STATUS AND PROVIDES, IN EFFECT, THAT HE SHALL NOT BE REMOVED FROM A PAY STATUS MERELY BECAUSE OF SICKNESS. ABSENCE WITH PAY IS SYNONYMOUS WITH AN ACTIVE DUTY STATUS. SEE DECISION OF DECEMBER 2, 1946, TO YOU, B- 61185, 26 COMP. GEN. 385, 386. IN VIEW OF THE FOREGOING, IT MAY BE CONCLUDED THAT IF THERE ARE NOT DUTIES FOR THE EMPLOYEE TO PERFORM AND HE IS IN A LEAVE WITHOUT PAY STATUS, IT WOULD BE IMPROPER TO TERMINATE THE NON-PAY STATUS PRIMARILY FOR THE PURPOSE OF PLACING THE EMPLOYEE IN A SICK LEAVE WITH PAY STATUS. HOWEVER, IF THE EMPLOYEE IS IN A NON-PAY STATUS AND IT ADMINISTRATIVELY IS DETERMINED THAT THERE IS NEED FOR HIS SERVICES AND A DATE IS SET FOR HIS RECALL TO DUTY THAT DATE NEED NOT BE POSTPONED MERELY BECAUSE THE EMPLOYEE IS INCAPACITATED FOR DUTY ON THAT DATE. SUCH A CASE, THE EMPLOYEE PROPERLY MAY BE REGARDED AS CONSTRUCTIVELY HAVING RETURNED TO DUTY, BE PLACED IN A PAY STATUS AND BE GRANTED SICK LEAVE WITH PAY IN ACCORDANCE WITH THE APPLICABLE REGULATIONS.