B-81553, FEBRUARY 15, 1949, 28 COMP. GEN. 457

B-81553, FEBRUARY 15, 1949, 28 COMP. GEN. 457

LEAVES OF ABSENCE - ACCRUAL - TEMPORARY EMPLOYEES IF ANNUAL LEAVE BE GRANTED TO A TEMPORARY EMPLOYEE COVERING THE END OF A MONTH OF SERVICE UNDER CIRCUMSTANCES WHERE IT IS KNOWN IN ADVANCE THAT THERE IS TO BE NO RETURN TO DUTY, THE EMPLOYEE'S SEPARATION IS TO BE REGARDED AS HAVING OCCURRED ON THE LAST DAY OF ACTIVE DUTY SO AS TO PRECLUDE THE ACCRUAL OF LEAVE FOR THAT MONTH; HOWEVER, IF ANNUAL LEAVE BE GRANTED ON THE ASSUMPTION THAT THE EMPLOYEE WILL RETURN TO DUTY EVEN THOUGH HE DOES NOT, THE EMPLOYEE WILL BE REGARDED AS BEING IN A PAY STATUS FOR A FULL MONTH AND THUS ENTITLED TO ACCRUE LEAVE FOR THAT MONTH. A TEMPORARY EMPLOYEE WHO WAS GRANTED ANNUAL LEAVE FOR THE LAST TWO DAYS OF HIS LAST MONTH OF SERVICE IN A TEMPORARY POSITION IMMEDIATELY PRIOR TO HIS TRANSFER TO A PERMANENT POSITION IN THE SAME AGENCY IS TO BE REGARDED AS HAVING ACCRUED LEAVE FOR SUCH LAST MONTH OF SERVICE AS TEMPORARY EMPLOYEE. 24 COMP. GEN. 702, MODIFIED.

ACTING COMPTROLLER GENERAL FISHER TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 15, 1949:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1948, RELATIVE TO LEAVE OF TEMPORARY EMPLOYEES, IN WHICH YOU REQUEST A DECISION UPON THREE QUESTIONS AS FOLLOWS:

1. WHEN A TEMPORARY EMPLOYEE IS GRANTED ANNUAL LEAVE COVERING THE END OF A MONTH OF SERVICE, AND DOES NOT RETURN TO DUTY, SHOULD HE BE GIVEN CREDIT FOR THE MONTH OF SERVICE FOR LEAVE ACCRUAL PURPOSES, AND BE CREDITED WITH TWO AND ONE-HALF DAYS' ANNUAL LEAVE AND ONE AND ONE FOURTH DAYS' SICK LEAVE FOR THAT MONTH?

2. SHOULD 24 COMP. GEN. 702 BE REGARDED AS PROHIBITING THE GRANTING OF ANNUAL LEAVE AT THE END OF A TEMPORARY APPOINTMENT, IF THE TEMPORARY APPOINTMENT IS TO BE IMMEDIATELY FOLLOWED BY A PERMANENT APPOINTMENT IN THE SAME AGENCY?

3. IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, WILL THE GRANTING OF SUCH ANNUAL LEAVE, WHEN THE END OF THE APPOINTMENT IS ALSO THE END OF A MONTH OF SERVICE, CAUSE THE FORFEITURE OF THE LEAVE WHICH WOULD HAVE BEEN EARNED IN THE LAST MONTH OF SERVICE?

THE DECISION IN 24 COMP. GEN. 702, REFERRED TO IN YOUR LETTER, HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

IN VIEW OF THE REQUIREMENTS OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, RESPECTING LUMP-SUM PAYMENTS FOR LEAVE UPON SEPARATION FROM SERVICE, A TEMPORARY EMPLOYEE APPOINTED FOR A PERIOD OF TWO MONTHS MAY NO LONGER BE GRANTED TERMINAL LEAVE OF FIVE DAYS IMMEDIATELY PRIOR TO THE END OF THE SECOND MONTH OF SERVICE, AS AUTHORIZED BY PRIOR DECISIONS; RATHER, IN ORDER TO RECEIVE CREDIT FOR FIVE DAYS' ANNUAL LEAVE UNDER SECTION 2.1 (B) OF THE ANNUAL LEAVE REGULATIONS, THE EMPLOYEE MUST RENDER A FULL TWO-MONTH PERIOD OF SERVICE, UPON COMPLETION OF WHICH A LUMP-SUM PAYMENT FOR HIS ACCRUED LEAVE BECOMES PAYABLE. CF. 23 COMP. GEN. 732.

THE RULE EXPRESSED IN THAT DECISION FOLLOWED THE GENERAL RULE ADOPTED SHORTLY AFTER THE ENACTMENT OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, 58 STAT. 846, TO THE EFFECT THAT AN EMPLOYEE MAY NOT BE GRANTED TERMINAL ANNUAL LEAVE IMMEDIATELY PRIOR TO HIS SEPARATION FROM THE SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE.

APPLYING THAT RULE TO YOUR FIRST QUESTION, IF ANNUAL LEAVE BE GRANTED COVERING THE END OF A MONTH OF SERVICE WHERE IT IS KNOWN IN ADVANCE, OR IT IS OBVIOUS BECAUSE OF THE EXPIRATION OF AN EMPLOYEE'S APPOINTMENT, THAT THERE IS TO BE NO RETURN TO DUTY, HIS SEPARATION IS TO BE REGARDED AS HAVING OCCURRED ON THE LAST DAY OF HIS ACTIVE DUTY, AND AS SUCH DATE WOULD BE PRIOR TO THE COMPLETION OF A MONTH OF SERVICE IN A PAY STATUS, HE WOULD NOT BE ENTITLED TO ACCRUE LEAVE FOR THAT MONTH. HOWEVER, IF ANNUAL LEAVE BE GRANTED UNDER CIRCUMSTANCES WHERE IT IS EXPECTED THAT THE EMPLOYEE WILL RETURN TO DUTY, BUT DOES NOT, HE IS TO BE REGARDED AS BEING IN A PAY STATUS FOR A FULL MONTH AND THUS IS ENTITLED TO ACCRUE LEAVE FOR THAT MONTH. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

WITH REGARD TO YOUR SECOND QUESTION, IT IS THE VIEW OF THIS OFFICE THAT THE MATTER OF GRANTING LEAVE TO A TEMPORARY EMPLOYEE IMMEDIATELY PRIOR TO HIS TRANSFER FROM A TEMPORARY TO A PERMANENT POSITION IN THE SAME AGENCY INVOLVES A SITUATION SUFFICIENTLY DIFFERENT TO WARRANT AN EXCEPTION TO THE GENERAL RULE, REFERRED TO ABOVE, RESPECTING TRANSFERS AND SEPARATIONS FROM THE SERVICE. SUCH AN EXCEPTION WOULD NOT DO VIOLENCE TO THE STATED PURPOSE OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AS SET FORTH IN 24 COMP. GEN. 511, AND WOULD PREVENT THE FORFEITURE OF LEAVE FOR AN EMPLOYEE'S LAST MONTH OF SERVICE IN A TEMPORARY STATUS IN THE EVENT LEAVE BE GRANTED AT THE END THEREOF. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE, AND THE TEMPORARY EMPLOYEE REFERRED TO IN YOUR LETTER WHO WAS ON ANNUAL LEAVE ON SEPTEMBER 7 AND 8, 1948, THE LAST TWO DAYS OF THE LAST MONTH OF SERVICE IN A TEMPORARY POSITION, AND WHO RECEIVED A PERMANENT APPOINTMENT ON SEPTEMBER 9, IS TO BE REGARDED AS ACCRUING LEAVE FOR THAT MONTH.

THE ANSWER TO THE SECOND QUESTION RENDERS UNNECESSARY ANY ANSWER TO YOUR THIRD AND LAST QUESTION.