B-68709, AUGUST 25, 1947, 27 COMP. GEN. 120

B-68709, AUGUST 25, 1947, 27 COMP. GEN. 120

LEAVES OF ABSENCE - ANNUAL - CHARGING OF; MAXIMUM ACCUMULATION LIMITATION IRRESPECTIVE OF THE METHOD USED BY THE PARTICULAR AGENCY FOR CREDITING ANNUAL LEAVE (AT THE BEGINNING OF THE YEAR, ON A PAY-PERIOD BASIS, ETC.), PERSONNEL SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, FOR THE FULL CALENDAR YEAR 1947 SHOULD BE PERMITTED TO CHARGE ALL ANNUAL LEAVE--- NOT EXCEEDING 26 DAYS--- TAKEN DURING SUCH YEAR AGAINST THE 26 DAYS' ANNUAL ACCRUAL GRANTED BY SAID ACT, RATHER THAN AGAINST ACCUMULATED LEAVE CREDIT AS OF THE END OF THE PRECEDING CALENDAR YEAR, WHETHER TAKEN BEFORE OR AFTER AN EQUIVALENT AMOUNT OF LEAVE HAD ACCRUED, ONLY THE EXCESS OVER 26 DAYS TO BE CHARGED AGAINST THE ACCUMULATED LEAVE CREDIT. (AMPLIFIED BY 27 COMP. GEN. 336.) APPLYING THE 90-DAY MAXIMUM ANNUAL LEAVE ACCUMULATION PROVISIONS OF THE ACT OF DECEMBER 17, 1942, AS AFFECTED BY TERMINATION THEREOF BY SECTION 3 OF THE ACT OF JULY 25, 1947, THUS RESTORING THE PREVIOUSLY EXISTING 60-DAY LIMITATION, THE MAXIMUM ANNUAL LEAVE WHICH MAY BE CREDITED AT THE BEGINNING OF THE CALENDAR YEAR 1948 (SUBJECT TO THE 90 DAY LIMITATION) TO EMPLOYEES WHO HAD 60 OR MORE DAYS OF LEAVE CREDIT AS OF JULY 24, 1947, IS THE TOTAL LEAVE ACCUMULATED ON JANUARY 1, 1947, PLUS ANY ACCRUAL THEREAFTER TO JULY 24, 1947, WHICH HAD NOT BEEN USED TO THAT DATE. COMP. GEN. 341, AMPLIFIED. (AMPLIFIED BY 27 COMP. GEN. 301; ID. 373.) IN YOUR SUBMISSION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 25, 1947:

I HAVE YOUR LETTER OF AUGUST 11, 1947, AS FOLLOWS:

YOUR DECISION B-52829 OF OCTOBER 10, 1945 (25 COMP. GEN. 341) HELD THAT (1) 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; AND (2) 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 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.

SINCE THE TERMINATION OF THE EMERGENCY FOR THIS PURPOSE BY PUBLIC LAW 239, JULY 25, 1947, A QUESTION HAS ARISEN REGARDING THE USE OF CURRENT LEAVE BY EMPLOYEES WHO HAVE ACCUMULATIONS OF MORE THAN 60 DAYS.

WE BELIEVE THE MOST REASONABLE AND PRACTICAL METHOD OF PERMITTING THESE EXCESS ACCUMULATIONS TO CONTINUE TO BE CARRIED FORWARD IS TO PERMIT THE EMPLOYEE TO USE THE LEAVE ACCRUING DURING THE CURRENT YEAR AT ANY TIME, WITHOUT AFFECTING HIS ACCUMULATION. UNDER THIS METHOD, AN EMPLOYEE WHO HAD 90 DAYS TO HIS CREDIT ON JULY 25, 1947, WOULD CARRY OVER 90 DAYS ON JANUARY 1, 1948, IF HE HAD THAT MUCH LEAVE TO HIS CREDIT AT THAT TIME. SUCCEEDING YEARS HE COULD CONTINUE TO CARRY OVER 90 DAYS AS OF JANUARY 1, SO LONG AS HE HAD AT LEAST 90 DAYS TO HIS CREDIT AT THE CLOSE OF BUSINESS THE PRECEDING DECEMBER 31. IN DETERMINING THE MAXIMUM WHICH COULD BE CARRIED OVER AT THE END OF EACH YEAR THE LEAVE CLERK WOULD HAVE ONLY TO LOOK AT THE AMOUNT TO THE EMPLOYEE'S CREDIT ON JULY 25 AND DECEMBER 31, 1947, AND ON JANUARY 1 AND DECEMBER 31 OF EACH YEAR THEREAFTER.

THE VIEW HAS BEEN EXPRESSED, HOWEVER, THAT AN EMPLOYEE WITH SUCH AN ACCUMULATION WHO USES LEAVE DURING THE YEAR IN EXCESS OF THE AMOUNT CURRENTLY ACCRUED CAN ONLY BE USING A PART OF HIS ACCUMULATION. FOR EXAMPLE, AN EMPLOYEE WITH 75 DAYS TO HIS CREDIT ON FRIDAY, JULY 25, 1947, USES A WEEK'S LEAVE THE FOLLOWING WEEK. THE AMOUNT CURRENTLY TO HIS CREDIT AT THE END OF THAT WEEK WOULD BE 70 1/2 DAYS (FIVE DAYS USED AND ONE-HALF DAY EARNED). UNDER THIS THEORY NOT MORE THAN 70 1/2 DAYS COULD BE CARRIED OVER AS ACCUMULATED LEAVE AT THE END OF THE YEAR, AND ANY FURTHER USE OF LEAVE BEFORE AN EQUIVALENT AMOUNT WAS EARNED WOULD FURTHER DECREASE THE ACCUMULATION, EVEN THOUGH THE EMPLOYEE ARRIVED AT THE END OF THE YEAR WITH 75 DAYS TO HIS CREDIT. TO DETERMINE THE MAXIMUM WHICH COULD BE CARRIED OVER AT THE END OF ANY YEAR, THE LEAVE CLERK WOULD HAVE TO FIND THE LOWEST AMOUNT TO WHICH THE EMPLOYEE'S LEAVE ACCOUNT FELL AT ANY TIME DURING THE YEAR. A VARIATION OF THIS THEORY WOULD REQUIRE THE SAME RESULT ONLY IN THOSE CASES WHERE THE EMPLOYING AGENCY DOES NOT PERMIT ADVANCE USE OF THE CURRENT YEAR'S ANNUAL LEAVE. ACCORDING TO THIS LATTER THEORY, IF THE EMPLOYEE IS ONE OF A CLASS WHICH THE EMPLOYING AGENCY PERMITS TO USE ADVANCE ANNUAL LEAVE, HE COULD USE THE CURRENT YEAR'S UNEARNED LEAVE AND KEEP HIS ACCUMULATION INTACT; IF HE IS NOT AN EMPLOYEE WHO COULD USE ADVANCE ANNUAL LEAVE IF HE HAD NO LEAVE, THEN HE IS PREVENTED FROM USING THE LEAVE HE WILL EARN IN THE CURRENT YEAR, EVEN THOUGH HE HAS A LARGE ACCUMULATION. AS A PRACTICAL MATTER THIS PROCEDURE WOULD PROBABLY CREATE CONFUSION THROUGHOUT THE LEAVE SYSTEM: SINCE SOME AGENCIES HAVE A POLICY OR REGULATION FORBIDDING THE USE OF ADVANCE ANNUAL LEAVE IN ANY CASE; IN SOME DEPARTMENTS THE POLICY IS DETERMINED BY EACH FIELD ESTABLISHMENT; IN OTHERS THE PRIVILEGE IS GIVEN ONLY TO CERTAIN CLASSES OF EMPLOYEES; AND IN OTHERS ANNUAL LEAVE CAN BE USED IN ADVANCE ONLY UPON FORMAL APPROVAL BY THE HEAD OF THE AGENCY OR OTHER SPECIFIC OFFICIAL IN EACH INDIVIDUAL CASE.

WE BELIEVE IT WOULD BE UNFORTUNATE IF IT WERE FOUND NECESSARY TO FOLLOW THE SECOND METHOD IN EITHER OF ITS VARIATIONS. IF EMPLOYEES WHO HAVE EXCESS ACCUMULATIONS MUST WAIT THROUGHOUT EACH YEAR UNTIL CURRENT ANNUAL LEAVE IS EARNED BEFORE THEY CAN USE IT, SUCH REQUIREMENT WILL UNDOUBTEDLY RESULT IN FORFEITURES OF ANNUAL LEAVE. IF LEAVE USED PRIOR TO ACCRUAL IS CHARGED AGAINST ACCUMULATIONS, EVERY EMPLOYEE WITH AN ACCUMULATION ABOVE 60 DAYS WOULD ARRIVE AT THE END OF DECEMBER WITH AT LEAST A FEW DAYS OF THE CURRENT YEAR'S LEAVE UNUSED, AND HE COULD NOT ADD IT TO HIS ACCUMULATION. IT WOULD PROBABLY BE IMPOSSIBLE FOR AGENCIES TO ALLOW ALL EMPLOYEES WHO WANTED TO DO SO TO USE ANNUAL LEAVE AT THE END OF EACH YEAR.

APPARENTLY THE ONLY WAY SUCH FORFEITURES COULD BE AVOIDED THIS YEAR WOULD BE FOR EMPLOYEES TO USE UP SO MUCH LEAVE IMMEDIATELY THAT THEIR ACCUMULATIONS WOULD FALL WELL BELOW 60 DAYS. IF THAT WERE DONE, THE ANNUAL LEAVE EARNED IN THE LAST PART OF THE YEAR COULD BE ADDED TO THE ACCUMULATION AT THE END OF THE YEAR, WITHIN THE 60-DAY LIMITATION. EVEN IF THIS WERE PRACTICABLE AND COULD BE APPROVED IN ALL CASES BY EMPLOYING AGENCIES, IT WOULD INVOLVE REQUIRING THE EMPLOYEES TO USE UP THEIR EXCESS ACCUMULATIONS IMMEDIATELY. WHILE ADMITTEDLY ANY AGENCY MAY REQUIRE ITS EMPLOYEES TO USE UP THEIR ANNUAL LEAVE, WE DO NOT BELIEVE THIS RESULT SHOULD BE FORCED ON BOTH THE AGENCY AND THE EMPLOYEE BY INTERPRETATION OF THE 1942 STATUTE.

FURTHER, WE DO NOT BELIEVE THE RESTRICTIONS ON USE OF ADVANCE ANNUAL LEAVE, AND THE EXCEPTIONS TO THE REQUIREMENT OF REFUND FOR INDEBTEDNESS FOR UNEARNED ANNUAL LEAVE UPON SEPARATION, SHOULD BE CONSIDERED APPLICABLE TO CURRENT ANNUAL LEAVE USED BY EMPLOYEES WHO HAVE LARGE ACCUMULATIONS OF LEAVE. THESE PROVISIONS OBVIOUSLY CONTEMPLATED EMPLOYEES WHO HAD NO ANNUAL LEAVE TO THEIR CREDIT. THE COMMISSION,FOR EXAMPLE, DOES NOT PERMIT ITS OWN WAR-SERVICE EMPLOYEES TO USE ADVANCE LEAVE. IF A WAR-SERVICE EMPLOYEE WITH NO ANNUAL LEAVE TO HIS CREDIT WERE PERMITTED TO USE ADVANCE LEAVE, AND WERE THEN SEPARATED BY REDUCTION IN FORCE, HE WOULD NOT BE REQUIRED TO REFUND FOR THE ADVANCE. HOWEVER, IF A WAR-SERVICE EMPLOYEE WITH 90 DAYS' ACCUMULATED ANNUAL LEAVE TO HIS CREDIT IS PERMITTED TO USE THE CURRENT YEAR'S LEAVE EARLY IN THE YEAR, WE DO NOT BELIEVE THIS SHOULD BE REGARDED AS AN ADVANCE FOR WHICH ADJUSTMENT IS EXCUSED IN CASE OF REDUCTION IN FORCE. IN OTHER WORDS, WE DO NOT BELIEVE THAT PROVISIONS AFFECTING "ADVANCE" OF ANNUAL LEAVE SHOULD HAVE ANY APPLICATION TO THE USE OF THE CURRENT YEAR'S ANNUAL LEAVE BY EMPLOYEES WHO HAVE LARGE ACCUMULATIONS.

WE WOULD APPRECIATE YOUR DECISION AS TO WHETHER THE METHOD OF CARRYING FORWARD THESE ACCUMULATIONS DESCRIBED IN THE THIRD PARAGRAPH OF THIS LETTER MAY BE CONSIDERED AS APPLICABLE IN ALL CASES.

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, CONTAINED THE FOLLOWING PROVISO:

* * * THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS. THAT PROVISO WAS AMENDED BY THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, BY ADDITION OF THE FOLLOWING:

* * * 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: AND PROVIDED FURTHER, THAT WHEN THE UNUSED LEAVE ACCUMULATED EQUALS OR EXCEEDS SIXTY DAYS IN THE AGGREGATE, NOT MORE THAN FIFTEEN DAYS OF UNUSED LEAVE MAY BE FURTHER ACCUMULATED IN ANY ONE CALENDAR YEAR. SAID ACT OF DECEMBER 17, 1942, WAS REPEALED BY SECTION 3 OF THE ACT OF JULY 25, 1947, PUBLIC LAW 239, 61 STAT. 451, IN THE FOLLOWING LANGUAGE:

IN THE INTERPRETATION OF THE FOLLOWING STATUTORY PROVISIONS, THE DATE WHEN THIS JOINT RESOLUTION BECOMES EFFECTIVE SHALL BE DEEMED TO BE THE DATE OF THE TERMINATION OF ANY STATE OF WAR HERETOFORE DECLARED BY THE CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND ON MAY 27, 1941 * * *.

SECTION 30.201 OF THE ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE MAY 1, 1947, PROVIDES:

SEC. 30.201 ACCRUAL OF ANNUAL LEAVE. ANNUAL LEAVE SHALL BE CREDITED TO EMPLOYEES AS FOLLOWS:

(A) PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF 1 DAY PER BI-WEEKLY PAY PERIOD; OR, THE TOTAL FOR ANY CALENDAR YEAR MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES. THE MINIMUM CREDIT FOR LEAVE SHALL BE 4 HOURS, AND ADDITIONAL CREDIT SHALL BE IN MULTIPLES THEREOF.

SECTION 30.202 OF THE ANNUAL AND SICK LEAVE REGULATIONS WAS AMENDED AFTER THE PASSAGE OF THE ACT OF JULY 25, 1947, TO READ:

SEC. 30.202ACCUMULATED ANNUAL LEAVE. ACCUMULATED ANNUAL LEAVE MAY BE CARRIED FORWARD FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING 60 DAYS; PROVIDED, THAT ADDITIONAL LEAVE UP TO 30 DAYS WHICH WAS ACCUMULATED DURING THE EMERGENCY PERIOD FROM SEPTEMBER 8, 1939, TO JULY 25, 1947, AND WHICH REMAINS UNUSED, MAY BE CARRIED FORWARD INTO SUCCEEDING YEARS UNTIL USED. (SEC. 7.1 E.O. 9414, JAN. 13, 1944; 3 CFR 1944 SUPP.).

IT IS RECOGNIZED THAT IF THE VARIOUS METHODS OF RECORDING LEAVE ACCRUING TO AN EMPLOYEE DURING THE CURRENT FISCAL YEAR WERE PERMITTED TO GOVERN THE RIGHT TO ACCUMULATED LEAVE, THERE WOULD RESULT, IN MANY CASES, INJUSTICE OR INEQUITIES AS ILLUSTRATED IN YOUR SUBMISSION. AS ANNUAL LEAVE ACCRUING TO AN OFFICER OR EMPLOYEE CONSTITUTES A VALUABLE RIGHT, THE NET RESULTS OF SUCH ACCUMULATION OR ACCRUAL SHOULD NOT BE DEPENDENT UPON ADMINISTRATIVE PRACTICES OR REGULATIONS NOT APPLICABLE GENERALLY THROUGHOUT THE GOVERNMENT SERVICE. ACCORDINGLY, EACH OFFICER OR EMPLOYEE, SUBJECT TO THE ANNUAL LEAVE ACT OF 1936 FOR THE FULL YEAR, SHOULD BE PERMITTED TO CHARGE ALL ANNUAL LEAVE (NOT EXCEEDING 26 DAYS) TAKEN DURING THE CALENDAR YEAR 1947 AGAINST THE 26 DAYS' ANNUAL LEAVE GRANTED BY THE ACT FOR THAT CALENDAR YEAR, IRRESPECTIVE OF WHETHER TAKEN BEFORE OR AFTER AN EQUIVALENT AMOUNT OF LEAVE HAD ACCRUED TO HIS INDIVIDUAL ACCOUNT, ONLY THE EXCESS LEAVE TAKEN OVER THE 26 DAYS TO BE CHARGED AGAINST ACCUMULATED LEAVE, IF ANY, TO HIS CREDIT AS OF DECEMBER 31, 1946.

IN 25 COMP. GEN. 341, AT PAGE 344, IT WAS STATED:

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.

APPLYING THE RULE STATED IN THAT DECISION, IT WILL BE SEEN THAT, SINCE ANNUAL LEAVE IN EXCESS OF 60 DAYS MAY NOT BE ACCUMULATED AFTER JULY 24, 1947, THE MAXIMUM ANNUAL LEAVE WHICH OFFICERS AND EMPLOYEES WHO HAD TO THEIR CREDIT ACCUMULATED LEAVE OF 60 DAYS OR MORE AT THE END OF THE CALENDAR YEAR 1946, MAY HAVE TO THEIR CREDIT AT THE BEGINNING OF THE CALENDAR YEAR 1948 (SUBJECT TO THE 90-DAY LIMITATION), IS THE TOTAL OF THEIR ACCUMULATED LEAVE AS OF JANUARY 1, 1947, PLUS THE PORTION OF THE LEAVE WHICH HAD ACCRUED TO THEM DURING THE PERIOD JANUARY 1, 1947, THROUGH JULY 24, 1947, AND WHICH HAD NOT BEEN USED DURING SAID PERIOD. OFFICERS AND EMPLOYEES WHO, ALTHOUGH HAVING LESS THAN 60 DAYS' ACCUMULATED LEAVE AS OF THE CLOSE OF THE CALENDAR YEAR 1946, HAD A TOTAL OF ACCUMULATED AND UNUSED ACCRUED LEAVE IN EXCESS OF 60 DAYS AS OF THE CLOSE OF BUSINESS JULY 24, 1947--- IF SUCH LEAVE REMAINS UNUSED DURING THE BALANCE OF THE CALENDAR YEAR 1947--- ARE ENTITLED TO CREDIT THEREFOR AT THE BEGINNING OF THE CALENDAR YEAR 1948. OF COURSE, OFFICERS AND EMPLOYEES HAVING A TOTAL OF ACCUMULATED AND UNUSED ANNUAL LEAVE OF 60 DAYS OR LESS AS OF JULY 24, 1947, ARE SUBJECT TO THE 60-DAY ACCUMULATION LIMITATION.

IT IS BELIEVED THAT THE ADOPTION OF THE ABOVE PROCEDURE WILL ELIMINATE THE INEQUALITIES CI ..END :