B-83881, MARCH 17, 1949, 28 COMP. GEN. 526

B-83881: Mar 17, 1949

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1949: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16. THAT YOU ARE AWARE OF YOUR AUTHORITY TO DO SO (1) IN THE CASE WHERE AN EMERGENCY SITUATION PREVENTS THE RETENTION OF THE EMPLOYEE IN AN ACTIVE DUTY STATUS PENDING DECISION ON SUSPENSION CHARGES IN ACCORDANCE WITH FEDERAL PERSONNEL MANUAL Z1-250. (2) WHERE IT IS NECESSARY TO SUSPEND WORK FOR A PERIOD OF TIME. THAT YOU ARE IN DOUBT WHETHER: (1) AN EMPLOYEE AGAINST WHOM CHARGES OF MISCONDUCT HAVE BEEN PREFERRED BY THE DEPARTMENT MAY BE PLACED ON ANNUAL LEAVE WITHOUT HIS CONSENT PENDING DISPOSITION OF THE CHARGES? (2) AN EMPLOYEE FOR WHOM DISABILITY RETIREMENT HAS BEEN REQUESTED BY THE DEPARTMENT AGAINST THE EMPLOYEE'S WISHES MAY BE PLACED ON ANNUAL LEAVE WITHOUT HIS CONSENT.

B-83881, MARCH 17, 1949, 28 COMP. GEN. 526

LEAVES OF ABSENCE - ANNUAL - ADMINISTRATIVE AUTHORITY WITHOUT EMPLOYEE'S CONSENT UNDER THE AUTHORITY IN SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AN EMPLOYEE MAY BE PLACED IN AN ANNUAL LEAVE STATUS WITHOUT HIS CONSENT IN ALL SITUATIONS WHERE THE ADMINISTRATIVE OFFICE CONSIDERS IT DESIRABLE FROM AN OFFICIAL STANDPOINT THAT THE EMPLOYEE NOT BE CONTINUED IN AN ACTIVE DUTY STATUS. 19 COMP. GEN. 955, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, MARCH 17, 1949:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1949, REQUESTING DECISION WITH RESPECT TO YOUR RIGHT TO PLACE AN EMPLOYEE IN AN ANNUAL LEAVE STATUS WITHOUT HIS CONSENT. YOU STATE, IN EFFECT, THAT YOU ARE AWARE OF YOUR AUTHORITY TO DO SO (1) IN THE CASE WHERE AN EMERGENCY SITUATION PREVENTS THE RETENTION OF THE EMPLOYEE IN AN ACTIVE DUTY STATUS PENDING DECISION ON SUSPENSION CHARGES IN ACCORDANCE WITH FEDERAL PERSONNEL MANUAL Z1-250; (2) WHERE IT IS NECESSARY TO SUSPEND WORK FOR A PERIOD OF TIME, AS CONSIDERED IN 19 COMP. GEN. 955; AND (3) WHEN NOTIFYING THE EMPLOYEE OF HIS PROSPECTIVE SEPARATION BY REDUCTION IN FORCE, AS PROVIDED IN THE CIVIL SERVICE RETENTION REGULATIONS; BUT THAT YOU ARE IN DOUBT WHETHER:

(1) AN EMPLOYEE AGAINST WHOM CHARGES OF MISCONDUCT HAVE BEEN PREFERRED BY THE DEPARTMENT MAY BE PLACED ON ANNUAL LEAVE WITHOUT HIS CONSENT PENDING DISPOSITION OF THE CHARGES?

(2) AN EMPLOYEE FOR WHOM DISABILITY RETIREMENT HAS BEEN REQUESTED BY THE DEPARTMENT AGAINST THE EMPLOYEE'S WISHES MAY BE PLACED ON ANNUAL LEAVE WITHOUT HIS CONSENT, AFTER ALL SICK LEAVE HAS BEEN EXHAUSTED, PENDING DISPOSITION OF THE RETIREMENT APPLICATION?

(3) AN EMPLOYEE MAY BE PLACED ON ANNUAL LEAVE WITHOUT HIS CONSENT AT ANY TIME WHEN WORK IS SLACK IN HIS LINE BUT NOT SUFFICIENTLY SO AS TO WARRANT COMPLETE SUSPENSION OF THE OPERATIONS ON WHICH HE IS ENGAGED?

IN 19 COMP. GEN. 955, REFERRED TO BY YOU, IT WAS HELD, QUOTING FROM THE SYLLABUS:

UNDER SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IT IS WITHIN THE AUTHORITY OF A DEPARTMENT HEAD TO REQUIRE ANY OR ALL EMPLOYEES OF A PARTICULAR UNIT OR OF THE DEPARTMENT, TO TAKE ANNUAL LEAVE AT ANY TIME AND FOR ANY PERIOD WITHIN THE LIMITATIONS OF THE STATUTE AS THE NEEDS OF THE SERVICE MAY REQUIRE.

DAYS WHICH ARE A PART OF AN EMPLOYEE'S REGULAR TOUR OF DUTY AND WHICH OCCUR DURING A PERIOD WHEN FIELD ESTABLISHMENTS ARE CLOSED FOR ADMINISTRATIVE REASONS ARE NOT "NONWORK" DAYS FOR WHICH NO CHARGE SHALL BE MADE AGAINST LEAVE WITHIN THE MEANING OF THE AMENDMENT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND THE REGULATIONS ISSUED PURSUANT THERETO, UNLESS THE HEAD OF THE DEPARTMENT FAILS TO EXERCISE HIS STATUTORY AUTHORITY TO REQUIRE THE EMPLOYEE TO TAKE LEAVE FOR SUCH DAYS.

WHILE IT IS TRUE THAT THE ABOVE-PUBLISHED DECISION WAS RENDERED IN A CASE IN WHICH THE GOVERNMENT ESTABLISHMENT HAD BEEN SHUT DOWN FOR ADMINISTRATIVE REASONS, THE RULE THEREIN STATED IS NOT LIMITED ONLY TO THE SITUATION THERE INVOLVED BUT IS FOR APPLICATION, ALSO, TO ALL SITUATIONS IN WHICH THE ADMINISTRATIVE OFFICE CONSIDERS IT DESIRABLE FROM AN OFFICIAL STANDPOINT THAT THE EMPLOYEE NOT BE CONTINUED IN AN ACTIVE DUTY STATUS. ACCORDINGLY, YOUR THREE QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.