B-92950, MARCH 13, 1950, 29 COMP. GEN. 369

B-92950: Mar 13, 1950

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LEAVES OF ABSENCE - FULL TIME EMPLOYEE TRANSFERRED TO "WHEN ACTUALLY EMPLOYED" BASIS AN EMPLOYEE WHO WAS TRANSFERRED FROM A FULL TIME PERMANENT POSITION TO A "WHEN ACTUALLY MPLOYED" PERMANENT POSITION IS ENTITLED UNDER THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS TO HAVE HIS ACCRUED ANNUAL AND SICK LEAVE TRANSFERRED TO HIS CREDIT IN THE NEW POSITION. SUCH LEAVE IS AVAILABLE FOR USE BY THE EMPLOYEE AT ANY TIME AFTER THE EFFECTIVE DATE OF THE "WHEN ACTUALLY EMPLOYED" APPOINTMENT. 1950: REFERENCE IS MADE TO LETTER OF FEBRUARY 13. IF AN EMPLOYEE EARNS AND IS CREDITED WITH ANNUAL AND SICK LEAVE ON A FULL-TIME PERMANENT BASIS IN ACCORDANCE WITH SECTIONS 30.201 (B) AND 30.301 (A). WHO WAS LATER CONVERTED TO A WHEN- ACTUALLY-EMPLOYED PERMANENT BASIS.

B-92950, MARCH 13, 1950, 29 COMP. GEN. 369

LEAVES OF ABSENCE - FULL TIME EMPLOYEE TRANSFERRED TO "WHEN ACTUALLY EMPLOYED" BASIS AN EMPLOYEE WHO WAS TRANSFERRED FROM A FULL TIME PERMANENT POSITION TO A "WHEN ACTUALLY MPLOYED" PERMANENT POSITION IS ENTITLED UNDER THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS TO HAVE HIS ACCRUED ANNUAL AND SICK LEAVE TRANSFERRED TO HIS CREDIT IN THE NEW POSITION, AND SUCH LEAVE IS AVAILABLE FOR USE BY THE EMPLOYEE AT ANY TIME AFTER THE EFFECTIVE DATE OF THE "WHEN ACTUALLY EMPLOYED" APPOINTMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, MARCH 13, 1950:

REFERENCE IS MADE TO LETTER OF FEBRUARY 13, 1950, FROM THE ACTING SECRETARY OF COMMERCE, WITH RESPECT TO THE ADMINISTRATION OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROMULGATED PURSUANT TO THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, IN THE NATIONAL BUREAU OF STANDARDS, AND REQUESTING DECISION UPON THE FOLLOWING QUESTIONS:

1. IF AN EMPLOYEE EARNS AND IS CREDITED WITH ANNUAL AND SICK LEAVE ON A FULL-TIME PERMANENT BASIS IN ACCORDANCE WITH SECTIONS 30.201 (B) AND 30.301 (A), RESPECTIVELY, OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS, MAY SUCH AN EMPLOYEE, WHO WAS LATER CONVERTED TO A WHEN- ACTUALLY-EMPLOYED PERMANENT BASIS, BE GRANTED THE ANNUAL AND SICK LEAVE WHICH ACCRUED TO HIS CREDIT ON THE FULL-TIME APPOINTMENT BEFORE HE HAS COMPLETED A CONTINUOUS SERVICE MONTH ON HIS W.A.E. BASIS?

2. IF THE ANSWER TO QUESTION NO. 1 IS IN THE NEGATIVE, MUST THE ANNUAL AND SICK LEAVE EARNED ON A FULL-TIME BASIS REMAIN TO THE CREDIT OF THE EMPLOYEE WITHOUT ACCESS TO THE USE THEREOF UNTIL SUCH TIME AS HE HAS COMPLETED A CONTINUOUS SERVICE MONTH ON HIS W.A.E. APPOINTMENT?

3. IF THE ANSWER TO QUESTION NO. 2 IS IN THE AFFIRMATIVE, MAY AN EMPLOYEE WHO HAD PREVIOUSLY COMPLETED A CONTINUOUS SERVICE MONTH ON A W.A.E. BASIS, BUT WHO NEVER APPLIED FOR THE USE OF THE LEAVE CREDITED FROM HIS FULL-TIME BASIS IMMEDIATELY AFTER THE COMPLETION OF HIS SERVICE MONTH, BE GRANTED SUCH LEAVE DURING A SUBSEQUENT PERIOD EVEN THOUGH THE EMPLOYEE BROKE THE CONTINUITY OF HIS SERVICE DURING THE INTERIM AND HAS NOT BENEFITED UNDER THE LEAVE REGULATIONS FOR A PERIOD OF SEVERAL MONTHS?

4. IF THE ANSWER TO QUESTION NO. 1 IS IN THE AFFIRMATIVE MAY THE GRANT OF SUCH LEAVE BE CONSIDERED AS A PART OF HIS FIRST SERVICE MONTH THEREBY ENTITLING HIM TO CREDITS AS PRESCRIBED IN SECTIONS 30.201 (C) AND 30.301 (B) OF THE CURRENT REGULATIONS?

5. IF AN EMPLOYEE ORIGINALLY APPOINTED ON A WHEN-ACTUALLY-EMPLOYED PERMANENT BASIS COMPLETED SEVERAL CONTINUOUS SERVICE MONTHS AND ACCRUED LEAVE IN ACCORDANCE WITH SECTIONS 30.201 (C) AND 30.301 (B) BUT NEVER APPLIED FOR THE USE OF SUCH LEAVE UNTIL SEVERAL MONTHS AFTER HE BECAME DISQUALIFIED UNDER THE BENEFITS OF THE ABOVE SECTIONS, COULD SUCH LEAVE BE GRANTED DURING ANY SUBSEQUENT PERIOD OF DISQUALIFICATION?

SECTION 30.201 (C) AND (D) AND SECTION 30.301 (B) AND (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS, PUBLISHED IN THE FEDERAL PERSONNEL MANUAL Z1- 354, PROVIDE THAT PERMANENT AND TEMPORARY "WHEN ACTUALLY EMPLOYED" EMPLOYEES "SHALL EARN AND BE CREDITED" WITH ANNUAL AND SICK LEAVE FOR EACH FULL CONTINUOUS MONTH OF SERVICE. IN 18 COMP. GEN. 400, IT WAS HELD THAT THE REQUIREMENT FOR A MONTH OF CONTINUOUS SERVICE AS A CONDITION PRECEDENT TO EARNING LEAVE CREDIT MEANS "AN ACTUAL PAY OR DUTY STATUS DURING THE ENTIRE DAILY TOUR OF DUTY ON EVERY WORK DAY OF THE MONTH.' IT WAS FURTHER HELD IN THAT DECISION, QUOTING FROM THE SYLLABUS:

AN INDEFINITE PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEE CONTINUOUSLY EMPLOYED ON ALL WORK DAYS FROM FEBRUARY 1, 1938 TO MARCH 15, 1938, INCLUSIVE, WHO WAS IN A NON-DUTY OR NON-PAY STATUS ON MARCH 16, 1938, AND, THEREAFTER CONTINUOUSLY EMPLOYED TO THE CLOSE OF BUSINESS ON MARCH 31, 1938, MAY BE GRANTED ANNUAL LEAVE, EITHER BEFORE OR AFTER MARCH 16, 1938, TO COVER THE PERIOD OF ABSENCE ON THAT DATE IF THE EMPLOYEE HAD REMAINING TO HIS CREDIT ON MARCH 15 EARNED ANNUAL LEAVE TO THE AMOUNT OF ONE DAY OR MORE, BUT AS THE ONE DAY'S LEAVE GRANTED FOR MARCH 16 WOULD BE CHARGED AGAINST THE 4 1/3 DAYS' LEAVE WHICH ACCRUED FOR THE TWO MONTHS, THERE WOULD REMAIN, ASSUMING THAT NO OTHER LEAVE WAS TAKEN DURING THE PERIOD INVOLVED, A NET LEAVE CREDIT FOR THE TWO MONTHS OF ONLY 3 1/3 DAYS--- NOT 4 1/3 DAYS AS ADMINISTRATIVELY STATED. ALSO, IN 26 COMP. GEN. 762, IT WAS HELD THAT WHEN A "WHEN ACTUALLY EMPLOYED" EMPLOYEE HAS ESTABLISHED HIS RIGHT TO LEAVE, HE MAY BE CARRIED IN A LEAVE WITH PAY STATUS ON DAYS HE DOES NOT WORK TO THE EXTENT OF HIS ACCUMULATED LEAVE. THUS IT WILL BE SEEN THAT A "WHEN ACTUALLY EMPLOYED" EMPLOYEE IS ENTITLED TO USE, DURING ANY MONTH OF SERVICE, THE LEAVE WHICH PREVIOUSLY HAD ACCRUED TO HIS CREDIT AND WHICH OTHERWISE IS AVAILABLE TO HIM. HENCE, THE LEAVE ACCRUED IN THE PERMANENT FULL TIME POSITION BEING TRANSFERABLE TO HIS PERMANENT "WHEN ACTUALLY EMPLOYED" POSITION, SUCH LEAVE IS AVAILABLE FOR USE BY HIM AT ANY TIME AFTER THE EFFECTIVE DATE OF THE "WHEN ACTUALLY EMPLOYED" APPOINTMENT.

ACCORDINGLY, IN LINE WITH THE CONCLUSIONS STATED IN THE DECISIONS REFERRED TO ABOVE, QUESTIONS 1, 3, 4, AND 5 ARE ANSWERED IN THE AFFIRMATIVE, RENDERING UNNECESSARY ANY ANSWER TO QUESTION 2.