B-9012, MARCH 19, 1940, 19 COMP. GEN. 794

B-9012, MARCH 19, 1940, 19 COMP. GEN. 794

LEAVES OF ABSENCE - ANNUAL AND SICK - EFFECT OF AMENDATORY ACT OF MARCH 2, 1940 THE EXISTING UNIFORM ANNUAL AND SICK LEAVE REGULATIONS ISSUED PURSUANT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, ARE FOR APPLICATION, AFTER MARCH 1, 1940, ONLY TO THE EXTENT THAT THEIR PROVISIONS ARE NOT INCONSISTENT OR INCOMPATIBLE WITH THE PROVISIONS OF THE AMENDATORY ANNUAL AND SICK LEAVE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, 54 STAT. 38. UNDER THE TERMS OF THE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, 54 STAT. 38, AMENDING THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, A TEMPORARY EMPLOYEE WHO IS ABSENT, AFTER MARCH 1, 1940, ON ANNUAL OR SICK LEAVE FROM FRIDAY THROUGH MONDAY (BOTH FRIDAY AND MONDAY BEING WORKDAYS AND 4 HOURS CONSTITUTING A WORKDAY FOR SATURDAY) SHOULD BE CHARGED FOR 2 DAYS' AND 4 HOURS' ANNUAL OR SICK LEAVE AS THE CASE MAY BE. NO CHANGE IN SECTION 11 OF THE UNIFORM SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, IS REQUIRED BY THE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, 54 STAT. 38, AND REFUNDS FOR EXCESS SICK LEAVE SHOULD BE INCLUSIVE OF SUNDAYS AND HOLIDAYS UNLESS AND UNTIL THE PRESIDENT APPROVES A REGULATION PROVIDING OTHERWISE. UNDER THE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, 54 STAT. 38, ONLY FOUR HOURS ARE CHARGEABLE, INSTEAD OF A FULL DAY, FOR A FULL DAY'S ABSENCE ON ACCOUNT OF SICKNESS ON SATURDAY HALF-HOLIDAYS AND PROPORTIONATE CHARGES ON THAT BASIS SHOULD BE MADE FOR ABSENCES OF LESS THAN THE FULL WORKDAY, SUBJECT TO A MINIMUM CHARGE OF 2 HOURS FOR ABSENCES OF "2 HOURS OR LESS" AS REQUIRED BY SECTION 13 OF THE EXISTING UNIFORM SICK LEAVE REGULATIONS. THE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, 54 STAT. 38, DOES NOT REQUIRE DISCONTINUANCE OF THE APPLICATION OF THE PROVISION IN SECTION 13 OF THE UNIFORM SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, REQUIRING A MINIMUM CHARGE OF ONE-HALF DAY FOR ABSENCES ON ACCOUNT OF SICKNESS ON A REGULAR WORKDAY, AS DISTINGUISHED FROM A SATURDAY OR OTHER DAY ON WHICH 4 HOURS CONSTITUTE A FULL WORKDAY. THE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, 54 STAT. 38, AMENDING THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, DOES NOT OPERATE TO MODIFY THE GENERAL RULES FOR COMPUTING DEDUCTIONS FROM COMPENSATION FOR LEAVE OF ABSENCE WITHOUT PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ARCHIVIST OF THE UNITED STATES, MARCH 19, 1940:

I HAVE YOUR LETTER OF MARCH 8, 1940, AS FOLLOWS:

(1) CERTAIN QUESTIONS HAVE ARISEN DUE TO THE CHANGE IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, UNDER PUBLIC, NO. 419, APPROVED MARCH 2, 1940.

(2) ACCORDING TO THIS AMENDMENT, DAYS OF ANNUAL AND SICK LEAVE WITH PAY SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS, HOLIDAYS, AND NONWORKDAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. THIS AMENDMENT IS INCONSISTENT WITH CERTAIN PROVISIONS OF THE REGULATIONS ISSUED BY EXECUTIVE ORDERS 7845 AND 7846 ON MARCH 21, 1938, AND WE ARE WONDERING IF OUR INTERPRETATION IS CORRECT IN THE FOLLOWING INSTANCES:

(3) SECTION 14 OF THE ANNUAL LEAVE REGULATIONS STATES THAT TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS LEAVE FOR EACH FULL MONTH OF SERVICE AND SUNDAYS AND HOLIDAYS OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE SHALL BE CHARGED AS ANNUAL LEAVE. UNDER THE AMENDMENT A TEMPORARY EMPLOYEE WHO IS ABSENT ON ANNUAL LEAVE FRIDAY THROUGH MONDAY WILL ONLY BE CHARGED FOR 2 1/2 DAYS INSTEAD OF FOR FOUR.

(4) SECTION 11 OF THE SICK LEAVE REGULATIONS STATES THAT IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID FOR SUCH EXCESS ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE INCLUSIVE OF SUNDAYS AND HOLIDAYS. IT IS OUR UNDERSTANDING THAT THE NEW AMENDMENT HAS THE EFFECT OF EXCLUDING SUNDAYS AND HOLIDAYS IN THE COMPUTATION OF THE AMOUNT SUCH AN EMPLOYEE MUST REFUND FOR EXCESS SICK LEAVE.

(5) SECTION 12 OF THE SICK LEAVE REGULATIONS WILL NO LONGER HOLD TRUE, SINCE THE AMENDMENT EXCEPTS SUNDAYS, HOLIDAYS, AND NONWORKDAYS IN COMPUTING SICK LEAVE. SINCE SATURDAY WILL THEREFORE BE CHARGED AS FOUR HOURS ONLY, IF AN EMPLOYEE IS ON SICK LEAVE FOR 2 HOURS SATURDAY, WILL HE BE CHARGED IN THE RATIO THAT THE AMOUNT OF SICK LEAVE GRANTED BEARS TO THE NUMBER OF WORK HOURS OF THE DAY?

(6) SECTION 13 OF THE SICK-LEAVE REGULATIONS STATES THAT A MINIMUM CHARGE FOR ABSENCE ON ACCOUNT OF SICKNESS, EXCEPT ON SATURDAY OR ON OTHER DAYS ON WHICH FOUR HOURS CONSTITUTES A FULL WORKDAY, SHALL BE 1/2 DAY. DOES THIS MINIMUM STILL HOLD GOOD?

(7) IF THE ABOVE IS ANSWERED IN THE NEGATIVE, WILL THE MINIMUM CHARGE FOR SICK LEAVE BE THE SAME AS FOR ANNUAL LEAVE--- FIFTEEN MINUTES?

(8) ACCORDING TO YOUR DECISION OF FEBRUARY 24, 1937 (16 C.G. 785) THE LEAVE ACTS AND REGULATIONS WHILE CONTROLLING THE GRANTING OF ANNUAL AND SICK LEAVES OF ABSENCE WITH PAY DO NOT COVER THE SITUATIONS INVOLVING LEAVE WITHOUT PAY, IT IS THEREFORE ASSUMED THAT THE ABOVE AMENDMENT WILL NOT OPERATE TO MODIFY THE GENERAL RULES FOR COMPUTING DEDUCTIONS FROM COMPENSATION FOR LEAVE OF ABSENCE WITHOUT PAY. IS THIS CORRECT?

THE ACT OF MARCH 2, 1940, PUBLIC NO. 419, PROVIDES AS FOLLOWS:

THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.

SINCE, AS STATED IN THE ABOVE-QUOTED LETTER, THE ACT IS INCONSISTENT WITH CERTAIN PROVISIONS OF THE EXISTING ANNUAL- AND SICK-LEAVE REGULATIONS, THE SAID REGULATIONS MUST YIELD TO THE STATUTE TO THE EXTENT THAT THEIR PROVISIONS ARE INCONSISTENT OR INCOMPATIBLE THEREWITH, THUS MAKING IT NECESSARY FOR THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT TO OPERATE IN SUCH CASES DIRECTLY UNDER THE STATUTE ON AND AFTER MARCH 2, 1940, UNTIL SUCH TIME AS THE REGULATIONS SHALL HAVE BEEN MODIFIED BY PROPER AUTHORITY TO CONFORM TO, OR ACCORD WITH, THE NEW STATUTE.

THE SEVERAL QUESTIONS PRESENTED WILL BE ANSWERED IN THE ORDER STATED IN YOUR LETTER.

WITH REFERENCE TO TEMPORARY EMPLOYEES, THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, CONTAINS A PROVISION AS FOLLOWS:

* * * TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. * * * AND SECTION 14 OF THE EXISTING ANNUAL-LEAVE REGULATIONS PROVIDES:

TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS LEAVE FOR EACH FULL MONTH OF SERVICE, AND SUNDAYS AND HOLIDAYS OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE SHALL BE CHARGED AS ANNUAL LEAVE. AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. ( ITALICS SUPPLIED.) THE PART ITALICIZED IS INCONSISTENT WITH THE TERMS OF THE ACT OF MARCH 2, 1940. THEREFORE, AFTER MARCH 1, 1940, A TEMPORARY EMPLOYEE WHO IS ABSENT ON ANNUAL LEAVE FROM FRIDAY THROUGH MONDAY (BOTH FRIDAY AND MONDAY BEING WORK DAYS AND 4 HOURS CONSTITUTING A WORK DAY FOR SATURDAY) SHOULD BE CHARGED FOR 2 DAYS AND 4 HOURS ANNUAL LEAVE--- NOT 2 1/2 DAYS AS SUGGESTED IN YOUR LETTER. THE SAME WOULD BE TRUE, OF COURSE, AS TO SICK LEAVE.

SECTION 11 OF THE UNIFORM SICK-LEAVE REGULATIONS, REFERRED TO IN PARAGRAPH 4 OF YOUR LETTER, READS AS FOLLOWS:

IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE, AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE, INCLUSIVE OF SUNDAYS AND HOLIDAYS. ABSENCES FOR FRACTIONAL PARTS OF A DAY WILL BE CHARGED PROPORTIONATELY. REFUND SHALL NOT BE REQUIRED IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, WHICH SHALL BE EVIDENCED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER. ( ITALICS SUPPLIED.)

THE PART ITALICIZED, WHILE DIFFERING FROM THE CORRESPONDING PROVISION OF SECTION 4 (B) OF THE UNIFORM ANNUAL LEAVE REGULATIONS MADE EFFECTIVE JANUARY 1, 1938 (SEE RULE PREVIOUSLY IN FORCE AS STATED IN 16 COMP. GEN. 769 AND 17 ID. 895), IS NOT INCONSISTENT WITH THE ACT OF MARCH 2, 1940. IF AN EMPLOYEE IS GRANTED SICK LEAVE WHICH HE HAD NOT EARNED AND HE THEREAFTER IS SEPARATED FROM THE SERVICE UNDER CONDITIONS REQUIRING THAT HE REFUND "THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS"--- IN THE ABSENCE OF A REGULATION APPROVED BY THE PRESIDENT SPECIFICALLY PROVIDING OTHERWISE--- THE ENTIRE PERIOD OF ABSENCE AFTER EXPIRATION OF ANY EARNED SICK LEAVE WOULD BECOME ABSENT WITHOUT PAY DURING WHICH NO RIGHT TO PAY FOR INTERVENING SUNDAYS OR HOLIDAYS WOULD ACCRUE. ACCORDINGLY, NO CHANGE IN SECTION 11 OF THE SICK LEAVE REGULATIONS IS REQUIRED BY THE STATUTE; AND UNLESS AND UNTIL THE PRESIDENT APPROVES A REGULATION PROVIDING OTHERWISE, REFUNDS FOR EXCESS SICK LEAVE SHOULD BE MADE IN ACCORDANCE WITH THE EXISTING REGULATION.

SECTION 12 OF THE EXISTING UNIFORM SICK LEAVE REGULATIONS PROVIDES:

SUNDAYS, HOLIDAYS, AND NONWORK DAYS WITHIN A PERIOD OF SICK LEAVE SHALL BE CHARGED AS SICK LEAVE, EXCEPT WHEN IMMEDIATELY PRECEDING OR FOLLOWING A PERIOD OF SICK LEAVE, IF THE EMPLOYEE SHALL HAVE BEEN IN A PAY STATUS IMMEDIATELY PRIOR TO OR FOLLOWING SUCH SUNDAYS, HOLIDAYS, OR NONWORK DAYS.

THE OPENING STATEMENT OF PARAGRAPH 5 OF YOUR LETTER, TO THE EFFECT THAT SECTION 12 OF THE SICK LEAVE REGULATIONS, SUPRA, WILL NO LONGER HOLD TRUE, IS CORRECT--- THE AMENDATORY ACT EXCEPTING SUNDAYS, HOLIDAYS, AND NONWORKDAYS IN COMPUTING BOTH SICK AND ANNUAL LEAVE. AS STATED IN 11 COMP. GEN. 119, 120,"TIME ON SATURDAY IN EXCESS OF FOUR HOURS HAS A HOLIDAY STATUS * * *.' THAT BEING SO, SUCH TIME ON SATURDAYS (THE HOLIDAY PART) IS, UNDER THE ACT OF MARCH 2, 1940, NOW FOR EXCLUDING FROM THE COMPUTATION OF SICK LEAVE. THEREFORE, UNLESS AND UNTIL AMENDATORY REGULATIONS BE PROMULGATED TO THE CONTRARY, IT WOULD APPEAR REASONABLE TO CONCLUDE THAT SINCE, UNDER THE NEW STATUTE ONLY FOUR HOURS ARE CHARGED AS SICK LEAVE FOR ABSENCE ALL DAY ON SATURDAY ON ACCOUNT OF SICKNESS, SICK LEAVE ON SATURDAY IS FOR CHARGING, GENERALLY, IN THE RATIO THAT THE AMOUNT OF SICK LEAVE GRANTED BEARS TO THE NUMBER OF WORK HOURS OF THAT DAY, SUBJECT TO THE LIMITATION THAT A MINIMUM CHARGE OF 2 HOURS BE MADE FOR ABSENCES OF 2 HOURS OR LESS TO CONFORM TO THE EXISTING MINIMUM LIMITATION OF "2 HOURS OR LESS" APPEARING IN THE LAST SENTENCE OF SECTION 13 OF THE EXISTING UNIFORM SICK LEAVE REGULATIONS, TO WIT:

ON SATURDAYS, * * * ABSENCES ON ACCOUNT OF ILLNESS SHALL BE CHARGED AS FOLLOWS: FOR 2 HOURS OR LESS * * *. SAID MINIMUM LIMITATION OF "2 HOURS OR LESS" NOT APPEARING TO BE INCONSISTENT WITH THE NEW STATUTE, BUT ON THE CONTRARY, COMING WITHIN THE DISCRETION OF THE PRESIDENT UNDER THE TERMS OF SECTION 7 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162. HENCE, IF AN EMPLOYEE WHO REGULARLY WORKS 7 HOURS PER DAY ON WORKDAYS OTHER THAN SATURDAY AND 4 HOURS ON SATURDAY, SHOULD BE ABSENT ON SICK LEAVE AFTER WORKING 1 HOUR ON SATURDAY HE WOULD, UNDER THE LAW AND REGULATIONS NOW IN FORCE CHARGEABLE WITH THREE-SEVENTHS OF A DAY'S SICK LEAVE FOR THAT SATURDAY.

WITH REFERENCE TO PARAGRAPH 6 OF YOUR LETTER, SECTION 13 OF THE EXISTING UNIFORM SICK-LEAVE REGULATIONS PROVIDES AS FOLLOWS:

THE MINIMUM CHARGE FOR ABSENCE ON ACCOUNT OF SICKNESS, EXCEPT ON SATURDAYS OR ON OTHER DAYS ON WHICH 4 HOURS CONSTITUTE A FULL WORKDAY, SHALL BE 1/2 DAY; AND ADDITIONAL FRACTIONS AUTHORIZED ON THE SAME DAY SHALL BE CHARGED IN MULTIPLES OF 1/2 HOUR. ON SATURDAYS, OR OTHER DAYS ON WHICH 4 HOURS CONSTITUTE A FULL WORKDAY, ABSENCES ON ACCOUNT OF ILLNESS SHALL BE CHARGED AS FOLLOWS: FOR 2 HOURS OR LESS--- 1/2 DAY; FOR MORE THAN 2 HOURS AND NOT MORE THAN 3 HOURS--- 3/4 OF A DAY; FOR MORE THAN 3 HOURS-- - A FULL DAY.

THE MATTER OF FIXING A MINIMUM CHARGE FOR SICK LEAVE IS EXCLUSIVELY WITHIN THE DISCRETION OF THE PRESIDENT UNDER THE TERMS OF SECTION 7 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162. THE ONLY PART OF SECTION 13 OF THE EXISTING SICK-LEAVE REGULATIONS WHICH CONFLICTS WITH THE NEW STATUTE IS THE LAST SENTENCE OF THE SECTION. UNDER THE NEW STATUTE AND THE PRESENT REGULATIONS THERE NOW IS REQUIRED (1) THE CHARGING OF 4 HOURS INSTEAD OF 1 FULL DAY FOR ABSENCE ON SICK LEAVE ALL DAY ON SATURDAY OR OTHER WORKDAY OF 4 HOURS IN LENGTH, AND (2) THE APPLICATION OF THE RULE STATED IN ANSWER TO THE QUESTION IN PARAGRAPH 5 WITH REFERENCE TO ABSENCES OF LESS THAN 4 HOURS ON SAID DAYS. HENCE, THE MINIMUM CHARGE OF 1/2 DAY FOR ABSENCE ON ACCOUNT OF SICKNESS, WHILE STILL HOLDING GOOD FOR REGULAR WORKDAYS, DOES NOT NECESSARILY HOLD GOOD IN RESPECT OF SUCH ABSENCES ON " SATURDAYS, OR OTHER DAYS ON WHICH 4 HOURS CONSTITUTE A FULL WORKDAY.'

THE ANSWERS ABOVE MADE TO THE QUESTIONS COVERED BY PARAGRAPHS 5 AND 6 OF YOUR LETTER RENDER UNNECESSARY ANY DISCUSSION OF THE QUESTION PRESENTED UNDER PARAGRAPH 7 THEREOF.

THE DECISION CITED IN PARAGRAPH 8 OF YOUR LETTER HOLDS, IN PERTINENT PART, AS FOLLOWS:

* * * THESE ACTS ( LEAVE ACTS) AND THE REGULATIONS ISSUED THEREUNDER, WHILE CONTROLLING THE GRANTING OF ANNUAL AND SICK LEAVES OF ABSENCE WITH PAY, DO NOT COVER SITUATIONS INVOLVING LEAVE WITHOUT PAY AND ACCORDINGLY DO NOT OPERATE TO MODIFY THE GENERAL RULES FOR COMPUTING DEDUCTIONS FROM COMPENSATION FOR LEAVE OF ABSENCE WITHOUT PAY. THEREFORE, YOUR STATED UNDERSTANDING TO THE EFFECT THAT THE ACT OF MARCH 2, 1940, DOES NOT OPERATE TO MODIFY THE GENERAL RULES FOR COMPUTING DEDUCTIONS FROM COMPENSATION FOR LEAVE OF ABSENCE WITHOUT PAY IS CORRECT.