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For further details, please ** ** send an e-mail message to: ** ** ** ** ** ** ** ** with the message 'info' in the body. ** ****************************************************************** Cover ================================================================ COVER Office of General Counsel March 1996 CIVILIAN PERSONNEL LAW MANUAL - TITLE II--LEAVE GAO/OGC-96-6 CPLM--Leave Abbreviations =============================================================== ABBREV AID - Agency for International Development ASCS - Agricultural Stabilization and Conservation Service AWOL - absent without leave Canal Zone - former Panama Canal Zone C.F.R. - Code of Federal Regulations ch. - chapter Comp. Gen. - Decisions of the Comptroller General of the United States (published volumes) CPLM - Civilian Personnel Law Manual CSC - former Civil Service Commission DMA - Defense Mapping Agency FAA - Federal Aviation Administration FPM - Federal Personnel Manual GAO - General Accounting Office GAO - (in a citation) General Accounting Office Policy and Procedures Manual for the Guidance of Federal Agencies IRS - Internal Revenue Service LWOP - leave without pay MSPB - Merit Systems Protection Board MSTS - Military Sea Transportation Service OPM - Office of Personnel Management para. - paragraph paras. - paragraphs PCS - permanent change of station PDY - permanent duty PHS - Public Health Service POV - privately owned vehicle Pub. L. No. - Public Law Number RIF - Reduction-in-force SES - Senior Executive Service Stat. - WSatutes at Large Supp. - supplement TDRL - Temporary Disability Retired List TDY - temporary duty U.S.C. - United States Code VA - Veterans Administration WAE - When actually employed µ - section µµ - sections FORWORD ============================================================ Chapter 0 This is Title II of the Fourth Edition of the Civilian Personnel Law Manual. The Manual is prepared by the Office of General Counsel, U.S. General Accounting Office (GAO). The purpose of the Manual is to present the legal entitlements of federal employees, including an overview of the statutes and regulations which give rise to those entitlements, in the following areas: Title I·Compensation, Title II·Leave, Title III·Travel, and Title IV·Relocation. We have included with Title I an "Introduction" in two parts. Part I examines GAO's authority to issue decisions and settle claims and includes a discussion of a variety of issues on jurisdictional limitations and policy considerations. Part II explains the availability of pertinent research materials and facilities of the General Accounting Office. This edition of the Civilian Personnel Law Manual is being published in loose-leaf style with the introduction and four titles separately wrapped. The Manual generally incorporates GAO decisions issued through September 30, 1994. The material in the Manual is, of course, subject to revision by statute or through the decision-making process. Accordingly, this Manual should be considered as a general guide only and should not be considered as an independent source of legal authority. This Manual supersedes the Third Edition of the Civilian Personnel Law Manual. The Federal Personnel Manual (FPM) issued by the Office of Personnel Management is referred to in various places in the Civilian Personnel Law Manual. Effective December 31, 1993, the FPM was abolished. However, an FPM Sunset Document, dated December 31, 1993, identifies FPM material in effect through December 31, 1994. The Sunset Document states that subsequent to December 31, 1994, the retained material will either be issued as process manuals, delegated to agencies, or incorporated in regulations. As always, we would welcome any comments that you may have regarding any aspect of the Manual. Robert P. Murphy General Counsel TITLE II--LEAVE ============================================================ Chapter 1 GENERAL PROVISIONS ---------------------------------------------------------- Chapter 1:1 A. COVERAGE -------------------------------------------------------- Chapter 1:1.1 The Annual and Sick Leave Act of 1951, as amended, 5 U.S.C. µµ 6301-6387, applies to the following individuals: (1) an employee of the federal government as defined by 5 U.S.C. µ 2105, and; (2) an individual employed by the government of the District of Columbia before October 1, 1987. However, there are certain employees excluded from coverage by 5 U.S.C. µ 6301(2). A list of the employees excluded from the act also may be found in FPM Supp. 990-2, Book 630, S2-1. An appointee who has not actually entered on duty is not an "employee" as defined in 5 U.S.C. µ 2105 and, therefore, is not entitled to military leave under 5 U.S.C. µ 6323. B-205972, May 25, 1982. B. EMPLOYEES COVERED -------------------------------------------------------- Chapter 1:1.2 1. Type of appointment a. Temporary employees Service of temporary and indefinite employees of the Federal Deposit Insurance Corporation is considered comparable to service creditable under 5 U.S.C. µ 8332 and may be credited for annual leave purposes. 35 Comp. Gen. 1 (1955). An employee of the Department of the Army, who served three consecutive appointments of less than 90 days each without a break in service, is entitled to annual leave under 5 U.S.C. µ 6303(b) for each full biweekly pay period she was employed. B-190005, October 6, 1977. b. Intermittent employees When a regular tour of duty is established for intermittent employees by preparation of a monthly work schedule 3 weeks in advance, such employees are covered by 5 U.S.C. µµ 6301-6312. However, the regular tour of duty requirement is not met when employees are not scheduled to perform duties during each week of a pay period and the benefits of the leave act are not available to such employees. 32 Comp. Gen. 206 (1952). An employee whose position was designated "intermittent" is nonetheless entitled to annual leave benefits since he had an established regular tour of duty for each of the 2 workweeks in a biweekly pay period even though he may not have been scheduled to work at the same time and on corresponding days of the 2 workweeks of that pay period. 57 Comp. Gen. 82 (1977). The fact that an employee's appointment was designated "intermittent" does not determine his entitlement to annual leave benefits if, in fact, he works regularly scheduled tours of duty. 57 Comp. Gen. 82 (1977); and B-183813, June 20, 1975. An employee seeks reconsideration of a prior decision on his claim that held that the employee, hired as an intermittent United States deputy marshal, was not entitled to leave benefits because the findings contained in his agency's report supported the determination that he was not assigned regularly scheduled tours of duty. Evidence that he frequently reported to work at 8:30 a.m. sometimes at the request of his supervisor, that he performed a variety of duties, and that he often worked 78 hours in a pay period is not sufficient to refute those findings. The prior decision, B-236228, December 22, 1989, is affirmed. Maynard W. Thompson, B-236228.2, April 16, 1991. c. WAE employees Employees, appointed on a when-actually-employed basis, worked regularly scheduled tours of duty of 80 hours each pay period during their period of employment. Therefore, they are entitled to annual and sick leave accrual and pay for holidays that occurred during their tours of duty. B-183813, June 20, 1975. d. Part-time employees A part-time employee is entitled to benefits under the Annual and Sick Leave Act only if he serves under an established tour of duty for each of the 2 administrative workweeks in each biweekly pay period. 32 Comp. Gen. 490 (1953); and 31 Comp. Gen. 581 (1952). e. Consultant An individual consultant whose services were procured under a contract which established an employer-employee relationship with the government rather than an independent contractor relationship, is entitled to accrual of annual and sick leave, where it appears he had a regularly scheduled tour of duty. In addition, the consultant is entitled to compensation for holidays on which he did not perform any work since his contract contained an express provision to that effect. Lynn Francis Jones, 63 Comp. Gen. 507 (1984). 2. Specific categories of employees a. Agricultural marketing agents Employees of the Department of Agriculture at various milk markets, whose salaries are paid from funds established by assessments upon milk handlers, are entitled to accrual of leave. B-109025, June 23,1952. b. Employees of cooperating agency Personnel employed and paid pursuant to cooperative agreements between the United States and a cooperating agency, such as a state or other political subdivision, are employees of the United States and are subject to federal laws controlling the rights and benefits of federal personnel including leave entitlement so long as their duties and time of work are supervised and controlled by federal officers. B-139050, June 2, 1959. c. Public Health Service commissioned personnel Commissioned personnel of the Public Health Service are considered civilian officers and employees under 5 U.S.C. µ 6308 so that members transferring between the commissioned corps and other civilian positions are not entitled to lump-sum leave payment but may have annual and sick leave transferred on adjusted basis. 34 Comp. Gen. 287 (1954). d. Law clerks to federal judges Claims for payment for annual leave from law clerks or secretaries may be paid if a certificate is furnished from the judge showing that a regular tour of duty was worked weekly by the employees, that all absences were charged to leave, and the amount of leave on the date of separation. Similar criteria should be used to determine whether employees could be granted leave where no separation is involved. B-86699, June 14, 1949, and July 20, 1949. e. Maritime employees Although civilian personnel serving on ships of the MSTS have their wages fixed in accordance with prevailing rates and practices of the maritime industry, such employees are not exempted from the provisions of 5 U.S.C. µµ 6301-6312. 43 Comp. Gen. 661 (1964). C. EMPLOYEES EXCLUDED -------------------------------------------------------- Chapter 1:1.3 1. Type of appointment a. Contract employees Leave is governed by statute and not by the terms of a contract. B-61290, November 15, 1946. b. Contractors Contractors are not regarded as employees of the United States if engaged on other than a personal service basis and are, thus, excluded from leave laws. 23 Comp. Gen. 425 (1943). c. Experts and consultants Experts and consultants without a regular tour of duty are excluded from leave benefits under 5 U.S.C. µµ 6301-6312. 35 Comp. Gen. 638 (1956). An expert appointed on an intermittent basis is not entitled to leave even though he actually worked full time since he did not have an established regular tour of duty. 58 Comp. Gen. 167 (1978). d. Temporary employees Construction tradesmen, recruited from a local work force under temporary appointments at hourly rates to perform alterations at the Grand Coulee Power Plant, worked side by side with regular maintenance employees, and the total crew performed a mixture of construction and maintenance work. The regular workers received maintenance wages and the temporary construction workers received construction wages. However, the construction workers are not entitled to leave benefits under 5 U.S.C. µµ 6301-6312, since they are specifically excepted from coverage as "temporary employees engaged on construction work at hourly rates" by 5 U.S.C. µ 6301(2)(iii). B-160391, December 21, 1966. e. Intermittent employees The National Gallery of Art employed four nurses who worked every third weekend, and an occasional day each administrative workweek. One nurse also worked as relief nurse and another worked part-time summer evenings. Since they had no regularly scheduled tour of duty in each administrative workweek they were not entitled to accrue annual and sick leave by virtue of 5 U.S.C. µ 6301(2)(ii), which excludes part-time employees who do not have regularly scheduled tours of duty. B-111206, November 24, 1971. Commissary cashiers who were employed on an intermittent basis received tentative work schedules each week which were subject to change. Such schedule does not constitute an administratively prescribed regular tour of duty so as to entitle these employees to leave benefits. B-191915, September 29, 1978. f. Fee compensated persons Persons compensated on a fee basis are not to be considered officers and employees of the United States and, therefore, are not covered by 5 U.S.C. µµ 6301-6312. 30 Comp. Gen. 406 (1951). g. "Officers" The term "officers" as used in 5 U.S.C. µ 6301(2)(xi) applies only to persons who are required to be appointed by the President with or without confirmation by the Senate, and, therefore, CSC, acting under delegation of the President's authority, contained in Executive Order No. 10540, June 29, 1954, may designate for exemption from the leave act only those persons who are Presidential appointees. B-123698, June 22, 1955, affirmed, B-123698, May 10, 1978. h. De facto employees Generally, a de facto employee does not accrue leave. 31 Comp. Gen. 262 (1952). See also 57 Comp. Gen. 406 (1978); and B-191397, September 6, 1978. i. Erroneous appointment exception However, in Valdez we held that where a person has been appointed to a position by an agency and the appointment is subsequently found to have been improper or erroneous, the employee is entitled to accrual of annual leave and lump-sum payment for unused leave upon separation, unless (1) the appointment was made in violation of an absolute statutory prohibition or (2) the employee was guilty of fraud in regard to the appointment or deliberately misrepresented or falsified a material matter. Prior inconsistent decisions will no longer be followed. This new rule does not apply to persons who have never been appointed or who serve after their appointments have expired since those persons do not satisfy the definition of "employee" in 5 U.S.C. µ 2105. Victor M. Valdez, Jr., 58 Comp. Gen. 734 (1979). See also Sidney P. Arnett and Mary Ann Barron, B-220791, September 8, 1986; Thomas C. Collins, 61 Comp. Gen. 127 (1981). 2. Specific categories of employees a. Certain United States attorneys Four United States attorneys who are compensated at rates in the Executive Schedule are excluded from coverage under the annual and sick leave provisions of 5 U.S.C. µµ 6301-6312. Although United States attorneys generally are not excluded from leave benefits (section 6301(2)(xi)), certain United States attorneys whose pay is set at Level IV of the Executive Schedule are excluded from leave benefits under section 6301(2)(x) which excludes officers whose basic rates of pay exceed the highest General Schedule level. 53 Comp. Gen. 577 (1974). b. Court reporters Court reporters paid an annual salary to be on call as needed by the court, but who are otherwise free to augment income with earnings from transcript fees do not have regular tours of duty consisting of a definite time, day, and/or hour which they are required to work during the workweek. Thus, they are part-time employees excluded from annual leave entitlement by 5 U.S.C. µ 6301(2)(ii). While a court reporter-secretary may be entitled to annual leave for the secretarial portion of duties performed during a regular tour of duty, the record contains no certification of leave earnings and use upon which to base a lump-sum leave payment. 54 Comp. Gen. 251 (1974). c. Governors, commissioners, and appointees Governors and high commissioners of United States Territories are exempted from leave benefits of 5 U.S.C. µµ 6301-6312. B-127205, May 9, 1956. d. Joint United States--foreign government employees Joint United States-foreign government employees, who devote no particular period of their employment to the work of either government, are not officers and employees of the United States so as to be entitled to leave benefits under 5 U.S.C. µµ 6301-6312. 24 Comp. Gen. 384 (1944). e. Maritime Service enrollees on active administrative duty Although enrollees (administrative) of U.S. Maritime Service are not expressly exempted from 5 U.S.C. µµ 6301-6312, they are not subject to its provisions, and a leave system may be properly established by regulations prescribed by the Administrator of the Maritime Administration. B-117518, November 20, 1953. f. Nonappropriated fund employees Nonappropriated fund employees of the Army and Air Force Motion Picture Service are not covered by 5 U.S.C. µµ 6301-6312, and, thus, they are not entitled to service credit for annual leave accrual on subsequent employment in a department or agency of the executive branch. 37 Comp. Gen. 671 (1958). g. Federal Reserve Bank employees Employees of Federal Reserve Bank are not employees of the United States and are not entitled to benefits under 5 U.S.C. µµ 6301-6312. B-53989, December 10, 1945. h. Employees of Radio Free Europe Although section 2313 of the Foreign Service Act of 1980 amended 5 U.S.C. µ 8332 to allow civil service retirement credit for employment with Radio Free Europe (thus affecting leave accrual categories), this law does not entitle an employee of Radio Free Europe to leave benefits under 5 U.S.C. µµ 6301-6312. 61 Comp. Gen. 279 (1982). i. Executive Officer of the D.C. Courts The Executive Officer of the District of Columbia (D.C.) Courts is entitled to the leave benefits of the D.C. judges as well as the compensation and retirement benefits which are specifically provided by statute. Since the Executive Officer of the D.C. Courts is no longer subject to the Annual and Sick Leave Act, 5 U.S.C. µµ 6301-6312, the leave entitlement of the Executive Officer is subject to administrative determination by the District of Columbia Courts. Due to legislative changes, 52 Comp. Gen. 111 (1972) will no longer be followed. Larry P. Polansky, B-217270, October 28, 1985. ANNUAL LEAVE ============================================================ Chapter 2 A. LAWS AND REGULATIONS -------------------------------------------------------- Chapter 2:0.1 The laws and regulations governing annual leave are contained in 5 U.S.C. µµ 6301-6312 and 5 C.F.R. Part 630. 1. Definitions a. Accrued leave The leave earned by an employee during the current leave year that is unused at any given time in that year. 5 C.F.R. µ 630.201(b)(1). See also 27 Comp. Gen. 373, 376 (1948). b. Accumulated leave The unused leave remaining to the credit of an employee at the beginning of a leave year. 5 C.F.R. µ 630.201(b)(2). c. Leave year The period beginning with the first day of the first complete pay period in a calendar year and ending with the day immediately before the first day of the first complete pay period in the following calendar year. 5 C.F.R. µ 630.201(b)(6). d. Days of leave The days on which the employee would otherwise work and receive pay and do not include holidays and nonworkdays established by federal statute, executive order, or administrative order. 5 U.S.C. µ 6302(a). e. Full biweekly pay period For the purposes of the statutes governing leave, an employee is deemed employed for a full biweekly pay period if he is employed during the days within that period, exclusive of holidays and nonworkdays established by federal statute, executive order, or administrative order, which fall within his basic administrative workweek. 5 U.S.C. µ 6302(b). 2. Rate of compensation Compensation during annual leave is payable at the regular rate paid for the position occupied by the employee when the leave is taken; there is no authority to fix a rate of compensation during annual leave differing from the rate regularly fixed for active service during a regular tour in the position. 27 Comp. Gen. 92 (1947). B. ACCRUAL -------------------------------------------------------- Chapter 2:0.2 1. Rate of accrual a. Full-time employees Under 5 U.S.C. µ 6303(a) annual leave accrues at the following rates: -- employees with less than 3 years of service--1/2 day (4 hours) for each full biweekly pay period, or 13 days per year; -- employees with between 3 and 15 years of service--3/4 day (6 hours) for each full biweekly pay period, except for the last full biweekly pay period in the year which shall be 1- 1/4 days (10 hours), or 20 days per year; -- employees with 15 or more years of service--1 day (8 hours) for each full biweekly pay period, or 26 days per year. b. Part-time employees Under 5 C.F.R. µ 630.303, a part-time employee for whom there has been established in advance a regular tour of duty on 1 or more days during each administrative workweek, and a part-time employee on a flexible work-schedule with an established biweekly work requirement, accrue annual leave at the following rates: -- employees with less than 3 years of service--1 hour for each 20 hours in a pay status; -- employees with between 3 and 15 years of service--1 hour for each 13 hours in a pay status; -- employees with 15 or more years of service--1 hour for each 10 hours in a pay status. 2. Pay period requirement a. Biweekly pay period To earn leave, an employee must be employed during a full biweekly pay period and, if he enters on duty in the middle of the pay period, he is not entitled to any credit for annual leave for that pay period. 31 Comp. Gen. 581, 586 (1952); and B-112731, December 4, 1952. 5 C.F.R. µ 630.202. b. Pay period other than biweekly An employee paid on other than a biweekly pay period basis earns leave on a pro rata basis for a full pay period. 5 C.F.R. µ 630.203. c. Nonpay status during pay period When an employee's service is interrupted by a non-leave-earning period (nonpay status), he earns leave on a pro rata basis for that portion of the pay period in which he was in a paid status. 5 C.F.R. µ 630.204. See also 32 Comp. Gen. 310, 313 (1953). An employee who suffered a work-related injury was in a leave without-pay status while receiving compensation under the Federal Employees' Compensation Act, 5 U.S.C. µµ 8101-8151. While the employee's intermittent service is interrupted by a non-leave-earning period, he earns leave only on a pro rata basis for that portion of a pay period in which he was in a pay status. B-180010.12, March 8, 1979. d. Effective date of change in accrual rate Any change in the rate of annual leave accrual shall take effect at the beginning of the next pay period (or corresponding period for employees not paid on a biweekly basis) after the pay period in which the employee completed the prescribed period of service. 5 U.S.C. µ 6303(c). 3. During suspension or separation a. Suspension for security reasons An employee who is suspended for security reasons under 5 U.S.C. µ 7532, but who is later reinstated, is entitled to accrue annual leave for the period of suspension, subject to the maximum accrual limitation. 39 Comp. Gen. 52 (1959); and 35 Comp. Gen. 121 (1955). b. Veterans reemployment right A veteran who is erroneously prevented from restoration to his civilian job is entitled to accrual of leave for the intervening period. B-127901, August 1, 1956. c. While receiving disability compensation An employee who is receiving disability compensation for a work-related illness or injury does not accrue annual leave for the period covered by such compensation. 29 Comp. Gen. 73 (1949); B-180010.12, March 8, 1979; and B-164617, April 13, 1972. d. Park Police during injury-related absence When a Park Police officer is absent from duty due to injury or illness resulting from the performance of duty and he is not charged leave pursuant to 5 U.S.C. µ 6324, he remains in a pay status during such absence, and continues to accrue sick and annual leave. B-182608, February 19, 1976. e. Violation of Equal Employment Opportunity Act of 1972 A U.S. district court found that an employee had been removed from his position with the Defense Mapping Agency (DMA) in violation of the Equal Employment Opportunity Act of 1972 and ordered the DMA to reinstate the employee with backpay. As a part of that award the employee is entitled to restoration of the annual leave and the sick leave he would have earned during the period of his discriminatory separation as an element of backpay. Francis J. Pinkney III, B-213604, May 15, 1984. f. Forfeiture of leave Federal employees are generally eligible to carry over no more than 240 hours of unused annual leave from 1 year to the next. An employee who has been suspended from duty without pay, and who cannot use annual leave, is subject to this maximum leave carryover limitation. Thus, an employee who was suspended and was not restored to duty until the next succeeding year forfeited the number of hours of annual leave in excess of 240 hours which were credited to his leave account at the time the suspension began. B-219974, October 21, 1985. 4. Maximum accumulation a. Generally Under 5 U.S.C. µ 6304(a), an employee may accumulate a maximum of 30 days, or 240 hours. The limitation is imposed at the beginning of the first full biweekly pay period (or corresponding period for an employee not paid biweekly) occurring in a year. Any excess accrued annual leave will be forfeited at that time. See 31 Comp. Gen. 581 (1952). See also this chapter, "G. Restoration of Leave." b. Employees stationed outside of the United States Employees stationed outside of the United States who meet the conditions for eligibility established by 5 U.S.C. µ 6304(b) and 5 C.F.R. µ 630.302 may accumulate 45 days (360 hours) of annual leave. c. Employed and hired locally An employee, who entered service in the Canal Zone and was given a transportation agreement on the basis of his travel to the Zone as a dependent of an employee with a transportation agreement, is not entitled to accumulate 45 days annual leave and home leave since he did not meet the requirement of 5 U.S.C. µ 6304(b) that he be recruited from the United States or a territory or possession of the United States outside the Zone. However, he is entitled to such benefits upon transfer to Mexico since the Zone is considered within the phrase "territories and possessions" of the United States as used in 5 U.S.C. µ 6304(b)(1). 53 Comp. Gen. 1966 (1974). But see 59 Comp. Gen. 671 (1980) regarding the changed status of the Canal Zone. d. Significance of employee's permanent residence A postal inspector recruited in Puerto Rico and trained and employed in the United States for 2 years, and then transferred to Puerto Rico, was not under the 45-day ceiling since there was no indication that he changed his permanent residence to the United States where he would be expected to take his home leave. 48 Comp. Gen. 437 (1968). e. Reemployment following separation An employee, who had a 45-day leave ceiling through service overseas, separated from federal service in 1966. Upon reemployment in 1969 the employee was limited to 30-day leave ceiling since he "used" his annual leave when he received lump-sum payment for annual leave upon separation. 59 Comp. Gen. 352 (1980). f. Adjustment following return from overseas post An employee's annual leave ceiling was not adjusted on his Statement of Earnings and Leave when it was reduced after he returned to the United States from an overseas duty post. Absent an agency regulation requiring annual leave ceilings to be included on earnings statements or requiring annual leave ceilings to be adjusted immediately upon departure from an overseas post, the failure to show the correct annual leave ceiling does not constitute administrative error providing a basis for restoration of leave under 5 U.S.C. µ 6304(d)(1)(A). B-200855, March 26, 1981. g. Senior Executive Service Under the provisions of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1224, annual leave accrued by an individual while serving in a position in the Senior Executive Service shall not be subject to the limitation on maximum accumulation contained in 5 U.S.C. µ 6304(a). See 5 U.S.C. µ 6304(f), for this and other exceptions. h. Part-time employees Part-time employees operate under the same 30-day or 45-day ceilings as apply to full-time employees. 5 C.F.R. µ 630.304. C. CREDITABLE SERVICES -------------------------------------------------------- Chapter 2:0.3 1. Generally In determining years of service, all service of a type that would be creditable under section 8332, regardless of whether an employee is covered by subchapter III, chapter 83, is creditable for setting leave earning rates. An employee who is a retired member of a uniformed service is entitled to credit for the active military service only under certain conditions. 5 U.S.C. µ 6303(a). Office of Personnel Management's interpretation in former Federal Personnel Manual Supplement 296-33 of the language in 5 U.S.C. µµ 6303(a)(3)(B) (1988) which gives credit for prior military service in computing an employee's entitlement to annual leave is not unreasonable in distinguishing between service "during" a war and service "in" a campaign or expedition. Although OPM's definition is different than that in 38 U.S.C. µ 101 (1988), which concerns veteran's benefits, OPM has the statutory authority to administer the leave system and its determination will not be disturbed by GAO. Kenneth J. Emanuel, Esq., B-251775, April 29, 1993. 2. Potentially creditable service Service which is potentially creditable for retirement purposes such as (1) service for which retirement deductions were withdrawn and not repaid, (2) service not under the retirement act, (3) service where the employee is receiving an annuity under another retirement system, (4) military service on the basis of which an employee is receiving retired pay, and (5) military service which was not an interruption of civilian service and where the employee does not have 5 years of civilian service, is creditable for setting leave earning rates. 31 Comp. Gen. 215 (1951). 3. Military retiree Military retiree who claims credit for all of his active military service during the Vietnam conflict for the purpose of annual leave accrual as a civilian employee is only entitled to service credit in accord with the Office of Personnel Management's interpretation of the leave statute. That interpretation allows credit for annual leave accrual purposes only for that active military service performed during a war or in the area of a campaign or expedition for which a campaign badge has been authorized. Since the Vietnam conflict is not a war for this purpose, only the retiree's active service spent in the area of the Vietnam campaign or expedition is creditable service. David T. Simrak, B-213727.2, June 2, 1987. D. NONCREDITABLE SERVICES -------------------------------------------------------- Chapter 2:0.4 1. Leave-without-pay status An employee in leave-without-pay status, performing active duty for training, may not be credited with annual leave that would have accrued from that period of military duty. Ronald E. Ferguson, B-215542, August 1, 1985. 2. Radio Free Europe employees Under the provisions of section 2313 of the Foreign Service Act of 1980, 5 U.S.C. µ 8332 was amended effective February 15, 1981, to allow civil service retirement credit for employment with Radio Free Europe. Thus, an employee's leave accrual category would be adjusted on the effective date of the act to credit service with Radio Free Europe. 61 Comp. Gen. 279 (1982). 3. Service governed by other than 5 U.S.C. µ 8332 All service creditable under 5 U.S.C. µ 8332 for annuity purposes under the act, even though not regarded as military or government service, may be used in determining years of service for leave accrual purposes unless excluded under other provisions of law. Therefore, the service specified in 5 U.S.C. µ 8332(b)(1) through (8) is creditable, but employment not otherwise creditable for leave accrual purposes is not made creditable solely because it may be creditable for retirement purposes. 51 Comp. Gen. 301 (1971). In the same manner, service with Howard University, which is not creditable service under 5 U.S.C. µ 8332, is not federal civilian service for leave accrual purposes. 50 Comp. Gen. 820 (1971). 4. Employee on temporary disability retired list A service member who received an appointment as a civilian employee during the time his name was on the Temporary Disability Retired List (TDRL) is considered a "retired member of a uniformed service" under 5 U.S.C. µ 6303(a) and is, therefore, not entitled to credit for annual leave purposes for his active military service since his disability does not meet the criteria of 5 U.S.C. µ 6303(a)(A)(i) or (ii) nor does his service time qualify under 5 U.S.C. µ 6303(a)(B) or (C). Such service may be credited only if his name is removed from the TDRL by virtue of his separation with severance pay. In that event his service may be credited as of the date his name is removed from the TDRL. Daniel F. Cejka, 63 Comp. Gen. 210 (1984). 5. Upon reemployment--military service credit Service in the Philippine Commonwealth Army is not active military service that is creditable for the purpose of determining an employee's annual leave accrual rate. Lucio R. Gallardo, B-226020, October 23, 1987. E. TRANSFERS AND REEMPLOYMENT -------------------------------------------------------- Chapter 2:0.5 1. Transfers a. Between positions under 5 U.S.C. µµ 6301-6312 An employee who transfers between positions covered by 5 U.S.C. µµ 6301-6312, without a break in service, shall have his leave certified to the employing agency for credit or charge. 5 C.F.R. µ 630.501(a). b. Between permanent and temporary positions An employee who was voluntarily furloughed from a permanent position so as to accept a temporary appointment with a temporary commission and who resumed duties in the permanent position without a break in service, may have the annual leave he accrued in the temporary position transferred to his credit in the permanent position. 33 Comp. Gen. 528 (1954). c. Reemployed annuitant An employee retired on December 31 and accepted a temporary appointment beginning January 1 of the following year. His accumulated and accrued leave should be transferred to his new position. 55 Comp. Gen. 784 (1976); and B-106065, October 24, 1951. d. Between different leave systems Under 5 U.S.C. µ 6308 an employee who transfers between positions under different leave systems without a break in service shall have his leave credited to his new position on an adjusted basis as set forth under CSC regulations. See 5 C.F.R. µ 630.501(b). An employee may transfer all accumulated and currently accrued annual leave to his credit as of the date of transfer, and the aggregate amount of such leave, but not in excess of the maximum limitation allowable under the former leave system, shall constitute his new leave ceiling until reduced under 5 U.S.C. µ 6304(c). 48 Comp. Gen. 212 (1968). See also 49 Comp. Gen. 189 (1969). e. To position not under 5 U.S.C. µµ 6301-6312 Employees who resigned from federal employment and accepted employment with federally-funded Legal Services Corporation may be paid lump-sum payments for annual leave and may have sick leave balances certified for retirement purposes or for possible recredit since by statute employees of Legal Services Corporation are not federal employees for leave purposes. B-186449, January 24, 1977. See also Chapter 3, "Lump-Sum Leave Payments." 2. Reemployment a. Generally For employees who have received a lump-sum payment upon separation and are reemployed before the end of the period covered by the lump-sum payment in the federal service, see 5 U.S.C. µ 6306. See also, Chapter 3, "Lump-Sum Leave Payments." b. After military service An employee who leaves his civilian position to enter the military service and elects under 5 U.S.C. µ 5552 to have his leave remain to his credit shall have his leave restored in accordance with his right of restoration to his civilian position or upon reemployment in a position covered under 5 U.S.C. µµ 6301-6312, not more than 3 years after separation from active military duty. 5 C.F.R. µ 630.504. An employee who retired after 20 years of military service and was employed in a federal civilian agency in 1976 is not entitled to a recredit of the leave he alleges was available at the time he left his former civilian employment and entered military service in 1955. In the absence of official records or corroborating evidence, the employee's estimate alone is insufficient to certify a prior leave balance upon reemployment in a civilian position. John H. Adams, B-209769, March 28, 1983. F. ADMINISTRATION OF ANNUAL LEAVE -------------------------------------------------------- Chapter 2:0.6 1. Generally Annual leave is provided and used for two general purposes: (1) to allow every employee an annual vacation period of extended leave for rest and recreation; and (2) to provide periods of time off for personal and emergency purposes such as a death in the family, religious observances, attending to personal business, etc. As provided in 5 U.S.C. µ 6302(d) annual leave may be granted at any time during the year as the head of the agency concerned may prescribe. Thus, while the taking of annual leave is an absolute right of the employee, it is subject to the right of the head of the agency concerned to fix the time at which leave may be taken. 39 Comp. Gen. 611 (1960); and 16 Comp. Gen. 481 (1936). An employee's annual leave account was overcredited due to agency error as to his service computation date. Where the overcredit of annual leave has occurred in the year in which the error was discovered, since an employee may be advanced annual leave for his use during the year so long as the erroneous leave already credited him has not caused his leave accrual to exceed his maximum entitlement for the year, the overcredit may remain to his credit and be adjusted from proper leave earnings during the balance of the year. Stephen C. Small, B-250228, February 22, 1993. 2. Charges to annual leave a. Minimum charge The minimum charge for leave is 1 hour, and additional charges are in multiples thereof, unless an agency establishes or negotiates a different minimum. However, if an employee is unavoidably or necessarily absent or tardy for less than 1 hour the agency, for adequate reason, may excuse him without charge to leave. An employee who is charged for leave for an unauthorized absence or tardiness may not be required to perform work for any part of the leave period charged. 5 C.F.R. µ 630.206. b. Charges to current, not subsequent, years Annual leave taken during a calendar year must be charged to leave which accrues during that year or to prior accumulations. 31 Comp. Gen. 581 (1952); and 27 Comp. Gen. 336 (1947). See also this chapter, "F. 3. Advanced leave." c. Military duty Where employees performed military service for 5-day periods and not on weekends, they need not be charged military leave or annual leave for the weekend periods. B-171947, September 7, 1972; and B-149951, November 23, 1962. d. Holidays and standby duty X-ray technicians employed by a VA hospital who receive premium pay for standby duty under 5 U.S.C. µ 5545(c)(1) and who are absent on holidays which occur within their regular tours of duty should be charged leave for those absences since their duty on holidays was included in determining their premium pay rates. 56 Comp. Gen. 551 (1977), overruling 54 Comp. Gen. 662 (1975). See also B-192815, December 7, 1978. However, such employees may be excused from duty on such holidays without a charge to leave where it has been administratively determined that their services are not required on a particular holiday. 56 Comp. Gen. 551 (1977). This 1977 decision is limited to prospective application, and leave which was credited or paid lump-sum under the authority of 54 Comp. Gen. 662 prior to April 19, 1977 (effective date of 56 Comp. Gen. 551), need not be collected. However, if such leave was not recredited or paid prior to April 19, 1977, there is no authority to do so after that date. 58 Comp. Gen. 345 (1979). VA employee receiving standby premium pay under 5 U.S.C. µ 5545(c)(1) was excused from performing regular duties at office on holiday but was required to remain at residence at standby status. Since he was not relieved from duty, he should not be charged annual leave in standby status. B-193709, November 28, 1979, citing 58 Comp. Gen. 345 (1979). e. Holiday "in lieu of" The Department of the Army closed the commissary on Saturday before a Monday holiday to avoid the payment of holiday pay to full-time employees on a Tuesday-through-Saturday shift who were entitled to a day "in lieu of" a holiday, under 5 U.S.C. µ 6103(b)(2). Since part-time or intermittent employees were not entitled to a day "in lieu of" a holiday, they may be charged annual leave or leave without pay on the Saturday the commissary was closed. B-192104, September 1, 1978. f. Snow emergency Although administrative employees of FAA's Indianapolis facility were excused from reporting to duty during snowstorm emergency of January 26, 1978, operational component remained open, staffed by air traffic control personnel who stayed on duty. Since the facility was not closed, the 26th was not a nonworkday for purposes of leave administration, and an air traffic controller absent on approved leave for that day was properly charged annual leave even though some air traffic controllers scheduled for duty during the day shift were excused without charge to leave. B-194432, October 16, 1980. g. Foreign holiday Air Force employees on temporary duty in Saudi Arabia were denied access to work areas for 15-day period because of local Ramadan holiday. Although the employees traveled elsewhere during this period, they are entitled to administrative leave with no charge to annual leave in the same manner as employees who remained in Saudi Arabia. B-199961, July 7, 1982. h. Nonworkdays An employee who had exhausted his military leave sought to use annual leave when he was prevented from working overtime on a nonworkday due to a weekend military drill. Annual leave may be used for military training, but there is no authority to grant annual leave for a nonworkday since, under 5 U.S.C. µ 6302(a), days of leave for which an employee may receive compensation are exclusive of holidays and nonworkdays. B-188145, November 15, 1977. i. Effect of time change Employees, who are working a night shift on the last Sunday in April when daylight savings time begins, may be charged 1 hour of annual leave since they work only 7 hours that shift. Administrative leave may not be granted. B-195779, April 25, 1978. See also Chapter 5 of this title, "A. Administrative Leave." j. Agency-required physical exam Where it is an agency policy to grant compensatory time to employees who are required to take a physical examination on a nonworkday, the agency may not otherwise charge the employee annual leave when they report for such an examination. B-159420, July 19, 1966. k. Charge for excess compensatory time Where an employee was erroneously granted excess compensatory time off, the excess compensatory time may be considered for waiver under 5 U.S.C. µ 5584. If waiver is not allowed, the employee's annual leave balance may be charged for compensatory time erroneously granted, but only with the employee's consent. 58 Comp. Gen. 571 (1979); and B-192839, May 3, 1979. See 59 Comp. Gen. 253 (1980) modifying 58 Comp. Gen. 571 (1979). l. Erroneous charge to annual leave An audit of time and leave records of an employee upon retirement revealed an alleged overstatement of 40 hours of annual leave. Where a review of evidence, particularly the time and attendance reports for the period in question, discloses a lack of adequate documentation to clearly show the claimant used 40 hours of annual leave, such leave should be credited to the employee's account. B-186355, November 9, 1977. m. Injury in performance of duty U.S. Park Policeman injured in the performance of duty and assigned to light duty for 4 hours a day continues in a pay status for and accrues leave based on a full 8-hour workday under 5 U.S.C. µ 6324. When that officer requests a week of annual leave, he should be charged 40 hours rather than 20 hours of annual leave. Section 6324 does not preclude the charging of annual or sick leave for absences unrelated to the injury which occurred in the performance of duty. U.S. Park Police, 66 Comp. Gen. 353 (1987). n. Relocation of housing after transfer A transferred employee who was offered government housing for 1 year as an accommodation in a high-cost resort area may not be paid the expenses incurred in later moving his household goods locally to a private residence. Such moving expenses may be paid by the agency only where the employee is required to occupy government quarters. Furthermore, the employee may not have restored the 16 hours of annual leave used during the move. Gordon E. Warrington, 68 Comp. Gen. 324 (1989). 3. Advanced leave a. Return to duty requirement Where it is known at the time advanced leave is requested that the employee will not be returning to duty, advanced annual leave or sick leave may not be granted. 25 Comp. Gen. 874 (1946); and 23 Comp. Gen. 837 (1944). Where an employee was reported lost at sea and there was only a remote possibility that he would return to duty, advanced annual leave may not be granted. 48 Comp. Gen. 676 (1969). Where an agency has a policy not to grant leave until it is earned, an employee on leave need not return for 1 workday prior to retirement in order to use annual leave. The agency may advance him the 8 hours of leave. B-120074, November 29, 1966. b. Refund for unearned leave An employee who is indebted for unearned leave must, upon separation, either refund the amount paid him representing the amount of indebtedness or have deducted that amount from any pay due him. An employee who enters active military service with a right of restoration is deemed not separated for the purposes of this provision. Refund is not required when an employee dies, retires for disability, or resigns or is separated because of disability under specified conditions. 5 C.F.R. µ 630.209. See also 33 Comp. Gen. 145 (1953); 29 Comp. Gen. 234 (1949); and B-131792, June 14, 1957. The leave "forgiven" by this provision is not chargeable against subsequently earned leave if the employee is later reemployed. 29 Comp. Gen. 234, supra. 4. Substitution of annual leave a. For sick leave (1) Generally--An absence which is otherwise chargeable to sick leave may be charged to annual leave if the employee so requests and the agency agrees. 37 Comp. Gen. 439 (1957); and B-142571, April 20, 1960. (2) Hospitalization during period of removal--Where an employee was reinstated into federal service after an improper removal, the period the employee was in the hospital during his separation may be charged to annual leave at the discretion of the agency. B-183566, April 16, 1976. (3) Retroactive substitution--The retroactive substitution of annual leave for sick leave is not authorized absent a law or regulation permitting a change in a statutory right once it has been vested. 38 Comp. Gen. 354 (1958). An exception to this policy exists for the liquidation of advanced sick leave. See 37 Comp. Gen. 439 (1957). (4) To avoid forfeiture of annual leave--Generally, a substitution of annual leave for sick leave may not be made retroactively solely for the purpose of avoiding a forfeiture of annual leave at the end of the leave year. 38 Comp. Gen. 354 (1958); 31 Comp. Gen. 524 (1952); and B-183566, April 16, 1976. An employee who was on sick leave from September 1971 until March 1972 requested the substitution of 18 hours of annual leave forfeited at the end of the 1971 leave year for an equal amount of sick leave. The retroactive substitution of annual for sick leave was permitted since the employee, through no fault of his own, was unaware of his leave balance, and had he been informed and able to, he would have chosen to apply the forfeited annual leave to a period of the illness in a timely manner. Also, the length of the illness foreclosed any possibility of using annual leave for vacations, etc. B-176093, July 10, 1972. See also B-178583, June 14, 1973. See also this chapter, "G. Restoration of Leave." An employee, who became ill in May and did not return to work until September, requested that 64 hours of annual leave be substituted for an equivalent amount of sick leave for the period in August when he scheduled and took his vacation. Since the annual leave had been scheduled for use in August prior to the employee's illness and since the employee made a timely request for correction of leave records upon return to duty, the annual leave may be substituted for an equivalent amount of sick leave. B-192039, January 31, 1979. (5) Administrative error--An employee who utilized advanced sick leave while filing for a disability retirement and who later substituted annual leave for the advanced sick leave may have the charge to annual leave recredited since she was erroneously advised that she would have to repay her advanced sick leave. There is no requirement to repay such leave if a disability retirement is granted. B-175144, March 16, 1972. b. For leave without pay (1) Mistake of law or fact--Where an employee was separated due to a reduction in force on August 31 and the employee's eligibility for within-grade increase had been delayed until September 2 due to excess of use of leave without pay, the employee may not substitute annual leave for leave without pay. Generally, annual leave may be substituted for leave without pay only when there is a mistake of law or fact. B-180870, August 27, 1974. (2) Administrative discretion--It is within the limits of proper administrative discretion to change the status of an employee from leave without pay to annual leave for the purpose of placing the employee in pay status 1 day prior to entry on military training duty. 37 Comp. Gen. 608 (1958). (3) Disability compensation--Employee was injured on the job and subsequently received disability compensation. He may not substitute accrued leave for LWOP unless he refunds that portion of his disability compensation payments covered by that leave. B-117594, January 15, 1954. (4) To avoid forfeiture of annual leave--Where an employee is granted leave without pay (LWOP) but then forfeits excess annual leave at the end of the year, the excess annual leave should be substituted for the LWOP. B-194176, January 3, 1980. See also 23 Comp. Gen. 677 (1944); and 22 Comp. Gen. 178 (1942). (5) To avoid break in service--An employee who resigned one position to accept a position with another agency may be charged annual leave or leave without pay to avoid a break in service which was not intended by the parties involved and which resulted from a delay in receipt of the letter of appointment by the second agency. B-112802, February 2, 1953. See also B-197771, August 11, 1981. (6) Following separation--An employee, who submitted a memorandum requesting emergency leave or resignation, committed suicide approximately 2 months after voluntary resignation. Since subsequent documentation shows the employee intended resignation, the separation date may not be changed for purposes of granting sick leave, annual leave, or leave without pay until death. The separation date may not be changed in the absence of violation of regulation or administrative error failing to effect intent of the parties. B-189895, November 2, 1977. (7) Temporary employee--An employee who received advance credit of annual leave as a temporary employee used all that leave and was placed in a leave-without-pay (LWOP) status to cover the remainder of his absence. When he was later appointed to a permanent position during the same leave year and received advance crediting of additional annual leave, he requested it be retroactively substituted for part of the LWOP period previously charged. The request is denied. The prior period of LWOP was properly charged because the employee did not have sufficient leave to cover his absence. Since the entitlement to additional advance annual leave arose only because of his new employment status, it may not be retroactively substituted for any period prior to the first date it became available for his use. Monideep K. De, 67 Comp. Gen. 594 (1988). (8) Donated annual leave--death of employee--Under the Temporary Leave Transfer Program for fiscal year 1988, the retroactive substitution of donated annual leave for leave without pay after the death of a leave recipient was improper. Any unused donated leave remaining to the credit of a leave recipient after his death should have been restored to the leave donors. Harold A. Gibson, 68 Comp. Gen. 694 (1989). c. Terminal leave (1) Administrative discretion--The administrative authority to grant terminal, annual, or vacation leave immediately prior to separation from federal service, when the separation is known in advance, is limited to cases where the exigencies of the service require such action since the agency's discretion is not unlimited. 34 Comp. Gen. 61 (1954); 24 Comp. Gen. 511 (1945). Furthermore, the failure of an agency to grant leave under such circumstances is not construed as administrative error under 5 U.S.C. µ 6304(d)(1). B-182608, February 27, 1975. However, if the employee's separation was not in conformance with established agency policy or regulations or with the intent of the parties especially regarding counseling of the employee and permitting the use of leave, the employee may be restored to the rolls for the purpose of using the unpaid leave. B-182608, supra; B-182027, December 23, 1974; and B-174975, March 31, 1972. See also B-121712, October 28, 1954; and B-124148, June 9, 1955. An employee, who is on sick leave at the time his disability retirement application was approved, should be allowed to continue on sick leave and to select the separation date most advantageous to him. 61 Comp. Gen. 363 (1982). Where an employee took total accrued annual leave (6 hours) during the final 6 hours of his last day of employment before separation, the rule regarding terminal leave does not apply, since the employee substantially worked the entire final pay period and worked part of the last day of that period. The employee could properly accrue and use the leave during the last day of employment. B-190374, January 20, 1978. See also Emmitt Sheridan, B-223876, June 12, 1987. d. Traveltime (1) To and from overseas posts (a) Generally--Under 5 U.S.C. µ 6303(d) an employee, (1) who is authorized to accumulate up to 45 days of annual leave (see 5 U.S.C. µ 6304(b)), (2) whose post of duty is outside the United States, and (3) who is returning on leave to the United States or to his place of residence, outside the area of employment, in the Commonwealth of Puerto Rico or the territories or possessions of the United States, may be granted leave-free traveltime for all time actually and necessarily occupied in going to or from a post of duty and time necessarily occupied awaiting transportation. This authority is limited to one period of leave in a prescribed tour of duty ata post outside the United States. See also 5 C.F.R. µ 630.207 which requires employees to designate their place of residence in their request for home leave. (b) Travel from Alaska or Hawaii--Leave-free traveltime under 5 U.S.C. µ 6303(d) is not available for travel between Hawaii or Alaska and the continental United States since they are not outside the "United States" as defined by 5 U.S.C. µ 6301(1). B-171947.62, November 27, 1974; and 55 Comp. Gen. 1035 (1976). (c) Employee hired overseas--Overseas employees recruited locally while temporarily outside the United States may be eligible for leave-free traveltime if it is determined that their stay abroad was not of such duration or under such circumstances as to constitute a residence abroad rather than in the United States. 35 Comp. Gen. 244 (1955). e. Other traveltime (1) Administrative discretion--It is a matter of administrative discretion whether to charge an employee annual leave for traveltime involving personal convenience travel in excess of that required for official travel alone. Thus, where an employee returning from temporary duty interrupts his trip for personal reasons over a weekend, it is within the discretion of the agency to charge the employee annual leave for the completion of his return travel on Monday. 46 Comp. Gen. 425 (1966). See also 40 Comp. Gen. 53 (1960); B-175627, July 5, 1972; B-163654, June 22, 1971; and B-171420, March 3, 1971. See also Francis A. Brennan, B-210686, October 19, 1983. (a) Examples--Use of POV instead of common carrier: 56 Comp. Gen. 865 (1977); and B-187315, May 5, 1977. See also Chapter 5 of this title, "A. Administrative Leave." -- Indirect route to new duty station: B-192199, January 31, 1979; and B-189808, April 28, 1978. -- Delay or interruption for personal reasons: B-185652, December 28, 1976; and B-188012, May 10, 1977. -- Abandons duty assignment for personal reasons: B-188702, May 19, 1978. -- Uses annual leave prior to temporary duty assignment which is canceled: must charge hours representing vacation--B-191588, January 2, 1979; discretionary on charging annual leave for return travel to headquarters--B-191588, January 2, 1979; and B-122739, February 10, 1977. -- Reviews work at home with agency approval prior to departure: B-193820, January 19, 1980. -- Discretion to charge annual leave for excess traveltime permits agency to require employee to submit accurate time and attendance reports for each day traveled: 56 Comp. Gen. 104 (1976). (b) Limitations on discretion--Although matters of charging leave to an employee for traveltime are primarily matters for the administrative office, our Office will in an appropriate situation disapprove the granting of excess time off without a charge to leave, as well as an unwarranted charge of annual leave. Thus, an employee who was authorized travel by privately owned vehicle but whose traveltime was determined on the basis of travel by commercial carrier was erroneously charged annual leave. 39 Comp. Gen. 250 (1959). However, a charge to annual leave is required for excess traveltime based on reasonable driving time. An employee left the West Coast by plane at 7:30 p.m. on Thursday and arrived at his home on the East Coast at 11:45 a.m. the following day. It was not proper for the agency to charge him 4 hours annual leave for not reporting to the office Friday afternoon since, being entitled to a normal period of rest, he could have remained overnight in California and returned to his official duty station during normal working hours on Friday. B-181363, August 23, 1974. GAO did not object to an agency's action in excusing an employee without charge to leave for excess traveltime caused by an airline strike. B-160278, December 23, 1966. Employees who were scheduled to attend a meeting to begin on Tuesday were authorized to travel to the meeting on Monday. Where the employees departed for the meeting on Sunday for reasons of personal convenience, they should not be charged annual leave for Monday since on a constructive travel basis they would have traveled on Monday. B-180021, September 5, 1978. An employee on temporary duty was delayed when his automobile suffered a mechanical breakdown. Since use of his automobile was advantageous to the government and since the employee's actions were reasonable and in accordance with the agency instructions, the employee should not be charged annual leave in connection with the excess traveltime. B-186829, January 27, 1977. (c) Involuntary leave--Where an employee is voluntarily absent from his official duty station, it is proper for the agency to charge him annual leave. B-166469, September 25, 1969; and 61 Comp. Gen. 558 (1982). An agency that bused employees during normal working hours to its new offices prior to relocation may charge an employee annual leave where she refused to be bused and, thus, refused to report for duty. B-186095, April 26, 1976. See also Chapter 5 of this title "F. Leave Without Pay." Annual leave should be charged for time spent by new appointees on erroneously authorized house-hunting trips. 58 Comp. Gen. 744 (1979). See also "G. Restoration of Leave" in this chapter. (d) Repayment of excess leave--Where an employee was granted excess annual leave, he may elect to have the excess leave charged against later accruing annual leave under the provisions of 5 U.S.C. µ 6302(f). B-189975, October 19, 1977. The employees may elect the method of repayment under 5 U.S.C. µ 6302(f) even if the employee may have been aware of the overcharge at the time it occurred. The employee's actual or constructive knowledge of the error is relevant only when waiver of overpayment is considered under 5 U.S.C. µ 5584. B-187692, October 13, 1977. An employee may elect to refund excess annual leave by use of compensatory time available for use at the time the excess annual leave was taken. 59 Comp. Gen. 253 (1980), distinguishing 45 Comp. Gen. 243 (1965). (e) Flexible work schedule--An employee working a flexible schedule in accordance with 5 U.S.C. µ 6122(a) elected the first day of the pay period as a "flex day." When the agency was closed for that entire day because of weather conditions, she claimed entitlement to an additional day off in lieu of that day. Employees taking a day off or a "flex day" under a flexible schedule are in a nonpay status on those days, in contrast to employees on approved leave. Since the employee was not in a pay status on the day the agency closed because of weather conditions, she has no entitlement to an additional day off. The situation is not analogous to a holiday where employees are in a pay status. Ann Knodle, B-217080, June 3, 1985. G. RESTORATION OF LEAVE -------------------------------------------------------- Chapter 2:0.7 1. Generally Leave forfeited by operation of 5 U.S.C. µ 6304(a) or (b) (30-day or 45-day or personal ceiling limitation on accumulated leave), may be restored under 5 U.S.C. µ 6304(d), if the forfeited leave resulted from (1) an administrative error, (2) the exigencies of public business when the annual leave was scheduled in advance, or (3) sickness of the employee when the annual leave was scheduled in advance. Employee requested annual leave from his agency during June that, if granted, would have avoided forfeiture of annual leave. Agency denied request because of employee's pending assignment to training at Industrial College of the Armed Forces for remainder of the year. Since the Industrial College has a restrictive leave policy for its students, it could grant him only 40 hours leave during school year and before academic recess period from December 18, 1992, to January 1, 1993, leaving employee with 80 hours of leave subject to forfeiture. Employee elected not to take annual leave during the academic recess period. Employee's claim for restoration of annual leave may be granted only to the extent the employee's "use or lose" leave balance of 80 hours exceeds the leave the employee could have taken during academic recess period. Dennis J. Hubscher, B-252088.2, September 29, 1993. 2. Leave scheduled in advance a. General rule Leave which is forfeited due to exigencies of public business or sickness of the employee must have been scheduled in writing in advance to be considered for restoration. See 5 U.S.C. µ 6304(d)(1)(B) and (C), and 5 C.F.R. µ 630.308. This requirement (that leave be scheduled in advance) is statutory and may not be waived or modified even where extenuating circumstances may exist. 56 Comp. Gen. 470 (1977); and B-193567, May 24, 1979. This requirement may not be waived even for extenuating circumstances such as those that existed in Vietnam at the end of leave year 1974. B-194545, June 15, 1979; and B-191379, September 28, 1978. This rule also applies to employees who are performing undercover assignments. B-191540, December 8, 1978. See also William K. Knotts, B-248232, September 22, 1992. b. Failure to give actual notice The leave must be scheduled in writing. B-187104, September 28, 1978. Furthermore, the leave must be scheduled before the third pay period prior to the end of the leave year, and scheduling the leave on the first day of the third pay period is not sufficient. B-194459, August 22, 1979. Some employees of the Norfolk Naval Shipyard, on approved leave for the remainder of the 1987 leave year ending January 2, 1988, forfeited up to 4 hours of annual leave as a result of the President declaring the last half (4 hours) of the scheduled workday on December 24, 1987, as a half-day closing. As a result, the employees' annual leave accounts exceeded the maximum carryover of 240 hours. There is no authority to restore the forfeited annual leave in excess of statutory limit of 240 hours for carryover into the next leave year. Norfolk Naval Shipyard, 68 Comp. Gen. 630 (1989). c. Failure to counsel An exception to the general rule on scheduling requirements exists where the agency has implemented a written regulation which requires that the employees be counseled concerning a possible forfeiture of annual leave. If the agency violated such a regulation, the forfeited leave may be restored under 5 U.S.C. µ 6304(d)(1)(A). 55 Comp. Gen. 784 (1976). A general statement of supervisory responsibility will not be sufficient. B-192510, April 6, 1979. Where a request for leave is submitted but not approved, see "Administrative error," below. d. Early retirement An agency erroneously advised two employees who had qualified for early retirement benefits that they were subject to mandatory age retirement. In anticipation of their separation, the employees applied for voluntary retirement at the end of the 1985 leave year and did not schedule or use annual leave exceeding their personal leave ceilings. By the time the agency discovered its error and the employees withdrew their retirement applications, they had insufficient time to schedule and use much of their excess annual leave and they forfeited that leave. The forfeited annual leave may be restored to the employees under 5 U.S.C. µ 6304(d)(1)(A), because the record shows that the forfeiture resulted from an administrative error. Paul A. Carr and Jerald P. Seach, B-222221, September 8, 1986. e. Employee cancels restoration request Even though an employee may have submitted a schedule for use of annual leave prior to expiration of the 1986 leave year, his annual leave may not be restored where he canceled the leave requested for reasons other than exigency or sickness. George H. Mikos, B-245117, January 21, 1992. Affirmed B-245117.2, June 19, 1992. 3. Administrative error a. Generally Under 5 U.S.C. µ 6304(d)(1)(A), annual leave lost through forfeiture under section 6304 shall be restored to the employee if lost because of "administrative error when the error causes a loss of annual leave otherwise accruable after June 30, 1960." If the employee is separated before the error is discovered, the restored leave is subject to credit and liquidation by lump-sum payment if a claim is filed within 3 years immediately following the date of discovery of the error. 5 U.S.C. µ 6304(e). The failure to give actual notice of this scheduling requirement to the employees is not an administrative error since the employees are charged with actual or constructive notice of the requirement. 56 Comp. Gen. 470 (1977); B-193567, May 24, 1979; and B-187104, March 8, 1978. b. What constitutes an administrative error (1) Failure to counsel employee to avoid forfeiture--An employee who retired on December 31, 1974, with 560 hours of annual leave (and a personal ceiling of 480 hours) and then accepted a temporary appointment effective January 1, 1975, did not receive a lump-sum payment for his accrued and accumulated leave but rather had his leave transferred to his new position resulting in a forfeiture of 80 hours. The determination as to what constitutes administrative error is primarily for the employing agency. Therefore, if the agency concerned determines that it violated a mandatory policy or regulation requiring counseling employees to avoid forfeiture, then the leave may be restored under 5 U.S.C. µ 6304(d)(1)(A). 55 Comp. Gen. 784 (1976). In the absence of a mandatory policy, an employee's claim for restoration of forfeited annual leave is denied since the agency's failure to counsel him about possible forfeiture of annual leave does not constitute administrative error under 5 U.S.C. µ 6304(d)(1)(A) (1982). Amos Knight, B-234528, October 6, 1989. (2) Failure to act upon request--Where an employee submits a bona fide, formal, and timely request for leave, there can be no discretion on the part of the agency whether to schedule the leave or not. The agency must approve and schedule the leave at the time requested by the employee or, if that is not possible because of the agency's workload, at some other time. Where the employee demonstrates that, but for an administrative error in failing to schedule the requested leave or presenting the case to the proper official for a determination of a public exigency, the leave was lost because of a public exigency or sickness and was not lost due to the fault of the employee, then the employee is entitled to restoration of the leave under 5 U.S.C. µ 6304(d)(1)(A). 58 Comp. Gen. 684 (1979); 57 Comp. Gen. 325 (1978); B- July 5, 1978; and B-189085, April 13, 1978. See also Jack V. Morkal, B-232269.2, August 22, 1989. If an agency is unable for the balance of the leave year to approve and schedule an employee's request for leave, the agency will not be required to perform the needless task of approving and immediately canceling the leave. However, if the agency is unable, due to an exigency of public business, to reschedule the requested leave during the current leave year, the failure to submit the matter to the designated official for his determination of the exigency constitutes an administrative error which would support restoration of the annual leave under 5 U.S.C. µ 6304(d)(1)(A). B-187104, September 28, 1978; and B-187104, March 8, 1978. See also George A. Raub, B-212548, January 24, 1984. Where the former Office Administrator for an Independent Counsel failed to accept requests for the scheduling of annual leave and inconsistently handled excess annual leave in the employees' leave accounts, we conclude that leave in excess of the 240-hour ceiling may be restored on the basis of administrative error under the provisions of 5 U.S.C. µ 6304(d)(1)(A). Office of Independent Counsel, B-252501, June 24, 1993. (3) SES member--transfer to Presidential appointment--An agency failed to advise a career Senior Executive Service (SES) member prior to receiving a Presidential appointment to an Executive Level IV position that he could elect to continue receiving annual and sick leave or other SES benefits during his Presidential appointment, as provided in 5 U.S.C. µ 3392(c) (1982). As a result, the employee placed his annual leave and sick leave balance in abeyance and did not elect to retain leave benefits for a period of 4 years. The agency's failure to properly advise the employee constituted an unwarranted personnel action and that the annual and sick leave the employee would have earned during this period may be retroactively restored. Anthony J. Calio, 66 Comp. Gen. 674 (1987). (4) Failure to determine exigency of public business--The general rule concerning the restoration of annual leave is that leave lost through forfeiture under 5 U.S.C. µ 6304 may be restored to the employee if it is lost because of exigencies of the public business when the annual leave was scheduled in advance. See 5 U.S.C. µ 6304(d)(1)(B) (1976). The determination that the exigency is of such importance as to preclude the use of scheduled annual leave is to be made by a designated agency official as described in 5 C.F.R. µ 630.305 (1980). However, we have held that it is immaterial if an appropriate agency official has not made a determination as to an exigency since a failure to present the case to a proper official for an exigency determination constitutes an administrative error which would allow restoration of annual leave. B-200027, August 24, 1981. (5) Failure to follow mandatory regulation--Where an agency has promulgated written regulations requiring counseling to avoid forfeiture of annual leave, the failure to counsel constitutes an administrative error under 5 U.S.C. µ 6304(d)(1)(A). 55 Comp. Gen. 784 (1976). Where an employee elects to be carried on a continuation-of-pay status for a 45-day period after a job-related injury under the authority of 5 U.S.C. µ 8118 and the agency, contrary to a mandatory regulation, refuses to continue his pay but requires him to take leave to cover periods of his absence attributable to the injury, the annual leave subject to forfeiture may be restored as leave lost because of administrative error. 58 Comp. Gen. 507 (1979). An employee who was required to use compensatory time before using annual leave did not schedule use of annual leave and forfeited 208 hours of excess annual leave. Although agency regulations required supervisors to schedule annual leave to avoid forfeiture, the unusual circumstances which resulted in the forfeiture of leave in this case do not provide a basis for restoration of the forfeited leave due to administrative error. B-186484, June 7, 1977. An employee failed to use 140 hours of restored annual leave within the 2-year period permitted by the Office of Personnel Management regulation at 5 C.F.R. µ 630.306 (1993), thus resulting in its forfeiture a second time. The agency's failure to plan and schedule the employee's leave to avoid forfeiture, as required by the agency's nondiscretionary policy, constituted administrative error. The error may be corrected by substituting the restored leave for annual leave the employee took during the period. The resulting forfeited annual leave may be restored under 5 U.S.C. µ 6304(d)(1)(A) (1988). 73 Comp. Gen. 51 (1993). (6) Employee on extended illness--Where an employee suffers a prolonged illness before the end of a leave year it is presumed that, if the employee had been properly advised of his annual leave balance, he would have requested scheduling of annual leave in order to avoid forfeiture. B-193431, August 8, 1979; and B-182608, February 19, 1976. Thus, where such an employee was not given notification that he would forfeit annual leave if he did not apply for it, an administrative error occurred and the forfeited leave may be restored to the employee. B-187777, February 27, 1979, modifying B-187777, January 3, 1978. However, when the employee applied for disability retirement and the agency placed him on leave without pay on December 31, in order to preserve his entitlement to cost-of-living increases in his annuity pursuant to CSC regulations, any leave forfeited after December 31, but before the end of the leave year, is not forfeited because of administrative error and may not be restored. B-187777, February 27, 1979. An employee of the Department of the Army who was absent from work from June 21, 1982, through January 23, 1983, due to a work injury, and received workers' compensation under the Federal Employees' Compensation Act (5 U.S.C. Chapter 81) during the period, forfeited 47 hours of annual leave in the 1982 leave year. Employees only received annual notices warning them in general. The employee was not specifically notified that in his case he would forfeit the leave if it were not scheduled leave. We presume he would have taken action to avoid forfeiture if he had been properly notified. The 47 hours of leave may be restored. Leonard J. Milewski, 63 Comp. Gen. 180 (1984). An employee who went on sick leave on October 23, 1981, through the end of leave year 1981 and forfeited 104 hours of annual leave is not entitled to restoration of the forfeited leave and additional lump-sum leave since the leave was not scheduled. This case does not fall within our decisions which presume scheduling of the leave during an extended period of absence due to illness. This employee's illness was of shorter duration, he was aware of his leave balance and knew that he was responsible for scheduling the leave to avoid forfeiture, and, in any event, it was not clear that he would have scheduled the leave. John E. Brady, B-214337, August 6, 1984. An employee scheduled annual leave for use in November because he was told that no leave requests would be granted in December and January but became ill so that he was unable to take the annual leave as scheduled. He returned to work from sick leave 10 workdays before the end of the leave year but did not request rescheduling of annual leave for that period, and, thus, forfeited 80 hours of leave. He is entitled to restoration of his leave under 5 U.S.C. µ 6304 and Office of Personnel Management guidelines since he scheduled the leave in advance and his illness occurred late in the year and was for such duration that by the time he returned to work his leave would not have been approved, even if he had formally requested it, because of the exigencies of the public business. Walter Schmidt, B-223238, February 27, 1987. (7) Erroneous lump-sum leave payment--An employee resigned from position with USIA and was appointed the following day to position with Air Force. Lump-sum payment for annual leave was erroneous, and Air Force should have recredited leave at time of appointment rather than date employee completed repayment of lump-sum amount. Leave forfeited as a result of the Air Force's failure to recredit leave account until lump-sum amount had been repaid shall be restored under 5 U.S.C. µ 6304(d)(1)(A). 59 Comp. Gen. 335 (1980). (8) Failure to collect lump-sum leave payment--In our decision B-200327, November 13, 1980, we determined that a lump-sum payment for unused annual leave which is correctly and legally made to a federal employee upon his separation from government service may not later be considered an "erroneous" payment within the meaning of the statute authorizing waiver of erroneous overpayments of compensation, even though the employee concerned accepts another federal appointment without any awareness that he will then become legally obligated to refund part of that lump-sum leave payment by accepting reemployment. Hence, collection of the employee's resulting debt may not be waived under 5 U.S.C. µ 5584. Accordingly, if the hiring agency erroneously fails to collect the refund and recredit the leave to him on the date of reemployment, leave which cannot later be recredited because it is subject to forfeiture limitations may be restored to a separate leave account under the leave restoration provisions of 5 U.S.C. µ 6304(d). Compare 55 Comp. Gen. 784 (1976). (9) Erroneous leave ceiling--Due to administrative error, an employee was led to believe he was entitled to carry over 45 days of annual leave as opposed to 30 days. Employee carried over more than 30 days' leave in several years prior to his retirement. Pursuant to 5 U.S.C. µ 6304(d)(1)(A) annual leave in excess of the 30 days may be restored and the employee may be paid for all annual leave accrued as of the date of retirement. B-201358, August 24, 1981. (10) Failure to credit excess leave in restored leave account--An employee who was reinstated after an unwarranted separation must have his excess annual leave credited to a separate leave account as provided under the Back Pay Act, 5 U.S.C. µ 5596(b)(1)(B)(i), and the failure to do so constitutes administrative error under 5 U.S.C. µ 6304(d)(1)(A). B-204628, July 7, 1982. (11) Forfeiture under other provisions--An employee who resigned August 13, 1973, forfeited 93 hours which could not be liquidated by lump-sum payment under 5 U.S.C. µ 5551(a). He may not have such leave restored under 5 U.S.C. µ 6304 as leave lost by administrative error since restoration applies only to leave forfeited by operation of µ 6304 which limits annual leave carryover to new leave year. B-182608, February 27, 1975. However, an employee, who resigned November 10, 1973, and forfeited annual leave prior to the amendment to 5 U.S.C. µ 5551(a), by Public Law No. 93-181, December 14, 1973, may be restored to the rolls for the period of the unused annual leave where the record indicates that the parties did not intend a forfeiture to occur and it was the agency's policy to avoid forfeiture in such circumstances. B-191210, July 21, 1978. See also "Terminal leave" in this chapter and Chapter 3 of this title "Lump-Sum Leave Payments." (12) Forfeiture because of additional holidays--Where an employee takes annual leave for the remainder of the leave year (13 days) but is charged for only 11 days because two additional holidays were declared by executive order during that period, there is no authority under 5 U.S.C. µ 6304 to restore the 6 hours of forfeited annual leave in excess of the statutory limit of 240 hours for carry over into the next leave year. B-182549, August 22, 1975; and B-207139, September 29, 1982. See also Norfolk Naval Shipyard, 68 Comp. Gen. 630 (1989). An employee on approved leave for the remainder of the 1981 leave year forfeited 4 hours of annual leave as a result of the President granting 4 hours of administrative leave on December 24, 1981. The failure of the employee's agency to counsel him of GAO's holding in Joseph A. Seymour, B-182549, August 22, 1975, that there is no authority to restore leave forfeited in this type of situation, does not constitute administrative error since the agency did not have a regulation requiring that its employees be counseled concerning possible forfeiture. William M. Gaultieri, B-207139, September 29, 1982. (13) Failure to credit certain judges and law clerks--Magistrate and bankruptcy judges and law clerks who are entitled to credit for annual and sick leave, which was initially not credited to them due to an erroneous agency position that they were not subject to the Annual and Sick Leave Act, cannot obtain credit for annual leave in excess of the statutory maximum carryover ceiling of 240 hours. Granting their claim for annual leave credit beyond the statutory maximum would result in a windfall to them and run counter to a judicial decision addressing comparable circumstances. Leave Restoration for Judicial Branch Employees, B-230807.2, September 13, 1991. c. What does not constitute administrative error (1) Scheduling problems--The failure of an agency to advise an employee of the scheduling requirements of 5 U.S.C. µ 6304(d)(1)(B) and (C), does not constitute an administrative error since employees are charged with constructive knowledge of those requirements. 56 Comp. Gen. 470 (1977); B-193567, May 24, 1979; B-192510, April 6, 1979; and B-187104, March 8, 1978. In the absence of a written regulation requiring counseling to avoid forfeiture, a general statement regarding a supervisor's responsibility to insure that leave is scheduled is not sufficient. B-192510, April 6, 1979. Furthermore, the fact that the supervisor does not require leave requests to be in writing does not constitute administrative error since the burden is on the employee to submit a written request for annual leave. B-192510, April 6, 1979; and B-187104, September 28, 1978. (2) Erroneous advice or delays--Where an employee obtained an unofficial estimate of projected retirement annuity but later postponed such retirement due to an error in the estimate, he may not have forfeited excess annual leave restored since the calculation of error did not involve consideration of leave matters and, thus, leave was not forfeited due to administrative error. B-191041, June 2, 1978. An employee, who did not use excess annual leave because of alleged delays in processing his disability retirement application, may not have forfeited leave restored in the absence of an agency regulation requiring counseling on impending forfeiture of annual leave. B-187055, March 4, 1977. Prior to end of leave year an employee was erroneously advised to use 15 hours of annual leave to avoid forfeiture, and error resulted in employee's leave ceiling being reduced from 360 to 345 hours. The statute does not provide for restoration of leave that is used rather than forfeited. B-196834, July 15, 1980. See also B-171716, March 26, 1971. (3) Incorrect leave and earnings statements--Although employee's leave and earnings statement erroneously reflected lower leave balance, employee was on notice of error and leave forfeited at end of leave year may not be restored under 5 U.S.C. µ 6304(d)(1)(A). B-195562, June 6, 1980. See also Priscilla Cooke, B-231759, January 4, 1989. (4) Failure to promptly credit annual leave--An employee who transferred from the Social Security Administration (SSA) to the Department of Labor was erroneously given a lump-sum leave payment. He returned the payment, but his leave balance from SSA was not credited to his account until 2 years later. Even though it was an error not to have promptly credited the annual leave upon his transfer, since the employee had sufficient time to schedule and use the excess leave after it was credited, he may not be recredited with the leave which he forfeited at the end of the leave year. Wallie Breig, B-213849, May 14, 1984. (5) Leave substituted for LWOP--Reemployed annuitant forfeited 60 hours of annual leave although he had requested and was granted 200 hours of leave without pay (LWOP) that year. Leave subject to forfeiture should be substituted for LWOP taken during that leave year. 23 Comp. Gen. 677, 688 (1944); and 22 Comp. Gen. 178 (1942). Leave was thus not forfeited and subject to restoration under 5 U.S.C. µ 6304(d)(1)(A). B-194176, January 3, 1980. 4. Exigencies of public business a. Generally Under 5 U.S.C. µ 6304(d)(1)(B) annual leave lost through forfeiture under section 6304 shall be restored to the employee if lost because of "exigencies of public business when the annual leave was scheduled in advance." The determination that the exigency is of such importance as to preclude the use of scheduled annual leave is to be made by an agency official as described in 5 C.F.R. µ 630.305. b. Leave scheduled in advance A second requirement for restoration under this condition is that the annual leave was scheduled in advance in writing prior to the third biweekly pay period prior to the end of the leave year. See 5 C.F.R. µ 630.308. Before leave forfeited due to exigencies of public business may be restored, it must have been scheduled in advance. 58 Comp. Gen. 684 (1979); B-193567, May 24, 1979; B-191379, September 28, 1978; and B-187104, March 8, 1978. However, when an employee submits a timely request in writing for leave, there can be no discretion whether to schedule the leave or not. The agency must approve and schedule the leave either at the time requested by the employee, or, if not possible because of the agency's workload, at some other time. In the case of an exigency of public business, the matter must be submitted to the designated official for his official determination. The agency's failure to present the case to the proper official for determination of an exigency of public business constitutes administrative error. 58 Comp. Gen. 684 (1979); B-187104, September 28, 1978; and "3. Administrative error," above. c. What constitutes an exigency of public business An employee scheduled 40 hours annual leave in writing for December 1979, but he forfeited 16 hours of such leave at the end of the 1979 leave year because he performed jury duty. He is entitled to have such annual leave restored. Since 5 U.S.C. µ 6322, prohibits loss of or reduction in annual leave where employee is summoned to perform jury service, it constitutes an exigency of the public business under 5 U.S.C. µ 6304(d)(1)(B). 60 Comp. Gen. 598 (1981). d. What does not constitute an exigency of public business Two IRS employees who were suspended in December 1978, due to bribery indictments, forfeited annual leave which could not be used during nonduty, nonpay status. Although leave was scheduled in advance and employees were later returned to duty, they did not forfeit leave because they were performing work. Leave may not be restored under exigencies of public business provision. B-197957, July 24, 1980. See also B-209958, March 2, 1983. An AID employee who separated and forfeited 104 hours of annual leave allegedly due to an exigency of the public business is not entitled to lump-sum payment for the forfeited hours since the appropriate agency official did not make the requisite exigency determinations. B-198177, March 31, 1981. Moreover, although agency failure to make proper exigency determination may not in and of itself bar restoration of forfeited annual leave under 5 U.S.C. µ 6304(d)(1), such leave may not be restored in the absence of evidence that it was timely requested and scheduled in writing and that its use was officially denied. B-197704, October 7, 1980. 5. Sickness a. Generally Under 5 U.S.C. µ 6304(d)(1)(C) annual leave lost through forfeiture under section 6304 shall be restored to the employee if lost because of "sickness of the employee when the annual leave was scheduled in advance." b. Leave scheduled in advance Under 5 C.F.R. µ 630.308 (1995) the annual leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year. c. Employee on extended illness A Park Police officer who was injured in the performance of duty and was thereafter absent from duty for nearly 1 year without charge to leave pursuant to 5 U.S.C. µ 6324, forfeited 204 hours of annual leave. The forfeited leave may be restored to his account under 5 U.S.C. µ 6304(d)(1)(C) since, in cases of prolonged illness preceding the end of a leave year, the employee may be presumed to have requested proper scheduling of annual leave otherwise subject to forfeiture. B-182608, February 19, 1976. See also Leonard J. Milewski, 63 Comp. Gen. 180 (1984), and John C. Brady, B-214337, August 6, 1984, at "3. Administrative error, (6) Employee on extended illness." An employee sustained a compensable on-the-job injury resulting in a prolonged recuperation period which extended beyond the end of the leave year. The fact that he scheduled annual leave after the injury, with the knowledge that he probably would be unable to use it, does not preclude restoration of the leave. The employee, who was covered by workers' compensation during the period, was not obligated to use the scheduled annual leave to avoid forfeiture. Bruce F. Scott, B-218728, December 10, 1981. A prolonged illness preceding the end of the leave year raises a presumption that the employee would have requested proper scheduling of annual leave otherwise subject to forfeiture. B-193431, August 8, 1979; and B-187777, February 27, 1979, modifying B-187777, January 3, 1978. An employee, whose disability retirement application was approved on October 27, 1976, scheduled use of his annual leave which was subject to forfeiture but did not use the scheduled annual leave since he was on extended sick leave pending his disability retirement. The forfeited leave may be restored under 5 U.S.C. µ 6304(d)(1)(C) since neither the statutory language nor the legislative history of Pub. L. No. 93-181 indicates that annual leave which is not used as a result of extended sick leave pending disability retirement may not be restored under this provision. 58 Comp. Gen. 435 (1979). 6. Use of restored leave a. Forfeiture An employee failed to use restored forfeited leave within the required 2-year period and the leave again was forfeited. Although the employee alleges that the agency erred in advising him regarding the rules for using restored leave, the leave may not be restored again. The 2-year requirement, which is contained in a regulation issued by OPM, has the force and effect of law and may not be waived or modified by this Office. 5 C.F.R. µ 630.306 (1991). Dr. James A. Majeski, B-247196, April 13, 1992. See also B-188993, December 12, 1977. In 1973 an agency discovered an error in the rate of accrual of leave of an employee which resulted in crediting his leave account with 24 additional hours in 1972 and 26 additional hours in 1973. The leave which was credited in 1972 but forfeited without an opportunity to be used, may be restored. However, leave which was earned in a leave year but forfeited that same year may not be restored. B-186820, December 16, 1977. An employee has no rights to further restoration and lump-sum payment of unused forfeited and restored 1977 leave, which was forfeited again at the end of the 1980 leave year. Although agency personnel gave him erroneous advice concerning his restored leave and failed to fix the date, as required by the regulations, for the running of the 2 years in which to use-or-lose his restored leave, no legal authority exists for further restoration of leave once it is forfeited a second time. William Corcoran, B-213380, August 20, 1984. b. Failure to charge restored leave account Where an agency fails to charge the restored leave account at the employee's request, restored annual leave which is subsequently forfeited may be restored to an employee's leave account. 56 Comp. Gen. 1014 (1977). 7. Under Back Pay Act of 1966 a. Generally An employee who loses leave as a result of an unwarranted or unjustified personnel action under the Back Pay Act of 1966, 5 U.S.C. µ 5596, shall be recredited with all annual and sick leave which accrued during the period. Further, through the enactment of Pub. L. No. 94-172, December 23, 1975, 89 Stat. 1025, there is no limitation on the amount of annual leave which may be restored, and any leave in excess of the maximum allowable shall be credited to a separate leave account. 5 U.S.C. µ 5596(b)(1)(B) (1994) and 5 C.F.R. µµ 630.505 and 550.805(g) (1995). An employee who was erroneously separated and later reinstated is entitled to credit for annual leave earned during the erroneous separation under the authority of 5 U.S.C. µ 5596. Annual leave which is in excess of the employee's annual leave ceiling shall be credited to a separate leave account which, under regulations, gives the employee 2 years from the date the leave is credited to the separate account in which to schedule and use such annual leave. 57 Comp. Gen. 464 (1978). See 5 C.F.R. µ 550.805(g) (1995). b. Erroneous holiday The agency erroneously applied Executive Order No. 11582, February 11, 1971, and designated Tuesday, instead of the prior Saturday, as a holiday "in lieu of" Washington's Birthday for employees with a Tuesday-through-Saturday workweek. To correct the error, the agency paid holiday pay for Saturday and charged employees annual leave for Tuesday. However, under these circumstances this charge to leave constitutes an unjustified or unwarranted personnel action and the leave should be restored. B-127474, February 9, 1979. c. Involuntary leave (1) Disability retirement--An employee, was placed on involuntary leave pursuant to CSC regulations pending action on an agency-filed application for disability retirement. She is not entitled to restoration of leave under the Back Pay Act, 5 U.S.C. µ 5596, when the agency-filed application was initially denied since the determination to place her on leave was based on competent medical findings. B-184522, April 21, 1977, affirming B-184522, March 16, 1976. However, when the agency-filed application was initially denied by the CSC and the agency appealed determination, agency must either restore the employee to duty, or take steps to remove her on disability grounds. Agency's failure to do so constituted an unwarranted or unjustified personnel action under the Back Pay Act. B-184522, March 16, 1976. See also B-206237, August 16, 1982. An employee was on sick leave, annual leave, and then on approved leave without pay pending a determination on his application for disability retirement, including his unsuccessful appeal of the denial of his application. He may not have leave recredited under 5 U.S.C. µ 5596 since the record does not establish that the leave was involuntary or that the employee was ready, willing, and able to work during that period. B-128314, January 8, 1979. For same principle, but involving regular retirement rather than disability retirement, see Ralph C. Harbin, B-201633, April 15, 1983. Based upon medical evidence from an employee's personal physician and an examination by agency physician showing that the employee could not perform the duties of her position, the agency placed the employee on involuntary leave and submitted an agency initiated disability retirement application. After initial rejection of the application, the agency appealed to OPM, which approved the retirement application. The employee then appealed to the Merit Systems Protection Board (MSPB), which ruled that the employee was not totally disabled. The employee claimed backpay for the entire period she was on involuntary leave. The claimant is entitled to backpay for the period between the initial denial of the application and the OPM granting of retirement. Once the application was granted it was appropriate for the employee to be retired. MSPB's finding that the employee was not totally disabled did not make improper the agency action in placing the employee in a nonpay status pending the appeal to MSPB. 63 Comp. Gen. 156 (1984). Agency placed employee on involuntary leave following fitness-for-duty examination and filed for her disability retirement. After disability retirement was denied by Office of Personnel Management (OPM), employee claimed backpay for period of involuntary leave and leave without pay. Claim is denied since OPM did not overturn medical evidence submitted by agency and agency action was based on competent medical evidence. Memphis Defense Depot, B-214631, August 24, 1984. The Office of Personnel Management (OPM) determined that an employee, placed on involuntary leave on the basis of medical evidence provided by his own physician and the results of a fitness-for-duty examination, was not eligible for disability retirement. The agency failed to return the employee to duty until 4 months later. The employee is entitled to backpay and restoration of leave for the period of involuntary leave subsequent to OPM's determination since the agency was required at that point to either return the employee to duty or initiate his separation on the grounds of disability. The employee's claim for the period prior to OPM's determination may not be allowed since the agency reasonably interpreted the medical evidence presented as indicating the employee's incapacity to perform his duties and OPM did not overturn that evidence. Albert R. Brister, B-217171, May 28, 1985. (2) Employee illness--Based on a preliminary diagnosis of tuberculosis made by the employee's personal physician, the agency placed the employee on involuntary leave while confirmatory tests were being made. The agency's decision was based upon competent medical evidence, and leave may not be restored under the Back Pay Act even though the required tests were not conducted by the employee's treating physician and the state-operated laboratories within a normal time period. B-181313, May 6, 1977, affirming B-181313, February 7, 1975. See also B-192956, April 9, 1979. (3) Employee suspension--An employee who was suspended from employment after her arrest on criminal charges is not entitled to leave restoration after some of the criminal charges were dismissed since there was no finding that the suspension was an unjustified or unwarranted personnel action under the Back Pay Act. B-192643, July 6, 1979. (4) Under Federal Employees' Compensation Act--buy back--An employee who uses annual or sick leave to recuperate from a work-related injury may "buy back" such leave pursuant to 20 C.F.R. µ 10.310, be placed on leave without pay, and accept compensation for the injury under the Federal Employees' Compensation Act, 5 U.S.C. µµ 8101-8151. However, annual leave which is reinstated as a result of a "buy back" is subject to forfeiture under 5 U.S.C. µ 6304(a) and may not later be restored. B-180010.12, March 8, 1979; B-187104, March 8, 1978; B-182608, August 9, 1977; B-184008, March 7, 1977; and B-204522, March 23, 1982. To avoid forfeiture, an employee may choose to be placed on annual leave during this period, and the employee would be required to refund a portion of the employee's compensation to the Department of Labor. B-180010.12, March 8, 1979; and B-182608, August 9, 1977. An employee who wishes to "buy back" leave where there are no official records from which to determine the amount of leave taken may "buy back" leave on the basis of secondary evidence determined to be acceptable by the agency such as leave requests, leave and earnings statements, time and attendance reports, personal leave records, and certificates from supervisors and timekeepers. 58 Comp. Gen. 741 (1979). Where an employee "buys back" annual leave used during work-related injury in order to receive workers' compensation payments, repurchased leave may be forfeited in reconstructing leave account of prior years and such forfeited leave may not be restored due to administrative error. B-204522, March 23, 1982; B-182608, August 9, 1977; and B-184008, March 7, 1977. An employee who used restored 1977 annual leave and regular annual leave in 1978 to recuperate from a work-related illness accepted workers' compensation and bought back leave used. Upon reconstruction of the employee's leave records to show recredit of the leave as of the time it was used, 66 hours of repurchased restored and regular annual leave were found to be subject to forfeiture. Regular annual leave reinstated as the result of buy back and subject to forfeiture under 5 U.S.C. µ 6304(a) (Supp. III 1979), may not be restored under 5 U.S.C. µ 6304(d) nor may restored leave recredited to a prior leave year and subject to forfeiture under 5 C.F.R. µ 630.306 (1982) be restored further. However, since the employing agency failed to apprise the employee of the consequences of buy back, the employee at his election may choose to be placed on annual leave for 1978 to avoid any or all forfeiture. The employee would then be entitled to be paid for the 66 hours of leave at the pay rates then in effect and he would have to refund the portion of workers' compensation covered by that leave. 62 Comp. Gen. 253 (1983). Under the provisions of the Federal Employees' Compensation Act, an employee who uses annual or sick leave during absences from work in connection with work-related injuries or illnesses may "buy back" or repurchase such leave and accept workers' compensation for the period of such absences under the act. An employee may not use accumulated annual or sick leave in order to liquidate an indebtedness owed the agency since annual and sick leave may not be converted into a monetary equivalent in these circumstances. See Donald R. Manning v. United States, 7 Cl. Ct. 128, 133 (1984). H. WAIVER OF OVERCREDIT OF ANNUAL LEAVE -------------------------------------------------------- Chapter 2:0.8 An employee's annual leave account was erroneously overcredited due to the agency's error in calculating her service computation date and, thus, the number of hours of leave she was to accrue each pay period. Since there was a positive balance remaining in the employee's leave account after the agency adjusted her account to correct the administrative error, there was no overpayment of pay or allowances which may be considered for waiver under 5 U.S.C. µ 5584. Donna J. Williams, B-230366, June 27, 1988. Where an employee's annual leave account was overcredited, the employee may be granted waiver only to the extent reconstruction of his leave account results in a negative leave balance. The hours deducted in reconstructing his annual leave account may not be waived or otherwise recredited. When an employee has sufficient leave to his credit to cover the adjustment there is no overpayment of pay which may be considered for waiver. Carl H. L. Barksdale, B-219505, November 29, 1985. An employee's annual leave account was overcredited due to agency error as to his service computation date. Where the overcredit of annual leave is has occurred during years prior to the year in which the error was discovered, the employee's leave account is to be reconstructed for each separate year involved to arrive at the proper current leave balance, and to determine whether an erroneous payment of salary occurred in any year where excessive use of leave resulted in a negative leave balance, the value of which becomes a debt due the United States subject to waiver. Stephen C. Small, B-250228, February 22, 1993. I. VOLUNTARY LEAVE TRANSFER PROGRAM -------------------------------------------------------- Chapter 2:0.9 Under the Voluntary Leave Transfer Program, donated leave may not be transferred to the recipient or used after the medical emergency terminates and any unused transferred leave must be restored to the leave donors. Therefore, the retroactive substitution of a recipient's unused donated leave for the recipient's leave without pay after the death of the recipient was improper, and the payment of compensation resulting from the retroactive substitution was erroneous. The erroneous payment, however, may be subject to waiver. Mary Dawson, 70 Comp. Gen. 432 (1991). See also Harold A. Gibson, 68 Comp. Gen. 694 (1989). J. INTERNATIONAL DATELINE ------------------------------------------------------- Chapter 2:0.10 An employee performing temporary duty in Guam celebrated the Fourth of July holiday there. He commenced return travel on the following day and, after crossing the international dateline, he arrived at his official duty station in Hawaii on the Fourth of July. Since the office was closed, he was unable to work. In accordance with 5 U.S.C. µ 6103 (1982) and Executive Order No. 11,582, the employee's holiday observance was in Guam. However, he should not be required to use annual leave in Hawaii on the Fourth of July since it is appropriate for his agency to exercise its discretion and grant him an excused absence without loss of pay for the day. Crossing the International Dateline, B-229355, November 22, 1988. LUMP-SUM LEAVE PAYMENTS ============================================================ Chapter 3 A. STATUTORY AND REGULATORY AUTHORITIES -------------------------------------------------------- Chapter 3:0.1 An employee (as defined by 5 U.S.C. µ 2105) or an individual employed by the District of Columbia who is separated from the service is entitled to receive a lump-sum payment for accumulated and current accrued annual leave to which he is entitled by statute. The payment shall equal the pay the employee would have received had he remained in the service until the end of the period of annual leave, and the payment is considered pay for taxation purposes only. 5 U.S.C. µ 5551(a). An employee who enters active duty in the armed forces may elect to have his leave remain to his credit until his return from active duty. 5 U.S.C. µ 5552. Governing OPM regulations on lump-sum leave payments are contained in FPM Chapter 550, Subchapter 2 and FPM Supp. 990-2, Book 550, Subchapter 2. B. ENTITLEMENT -------------------------------------------------------- Chapter 3:0.2 1. Payable upon separation Employees who are separated from the service are entitled to a lump-sum payment for all unused annual leave through the last full pay period before separation. The right to a lump-sum payment vests on the date of separation. 33 Comp. Gen. 85 (1953). 2. Payable upon transfer or change of positions a. Transfer to position not under leave system Where an employee transfers to a position not covered by 5 U.S.C. µµ 6301-6312 and his accumulated leave cannot be transferred, such transfer may be regarded as a separation for the purposes of a lump-sum leave payment. 49 Comp. Gen. 189 (1969); 33 Comp. Gen. 622 (1954); and 33 Comp. Gen. 85, 88 (1953). An executive branch employee who went on leave without pay in order to accept a position with a Congressional committee and who later resigned from his agency is entitled to lump-sum payment for annual leave upon date of separation and not the date he was placed on LWOP. B-191713, May 22, 1978. Employees who resigned from a federal agency and accepted employment with federally-funded Legal Services Corporation may be paid lump-sum payments for annual leave pursuant to 5 U.S.C. µ 5551 even though the Legal Services Corporation paid "cash bonuses" for certain amounts of leave. Community Services Administration, B-186449, January 24, 1977. b. Change to intermittent employment with no regular tour of duty Where an employee converts to a position as an intermittent employee with no regular tour of duty during an administrative workweek and where he will earn no leave and cannot transfer his leave, he shall receive a lump-sum payment for all annual leave accumulated under his prior position. 47 Comp. Gen. 706 (1968); and 33 Comp. Gen. 85, 88 (1953). c. Transfers to other positions (1) Judges and court employees--Where an employee of the Department of Justice takes a position with a federal judge or with the U.S. Courts which is not covered by 5 U.S.C. µµ 6301-6312 and to which his accumulated leave is not transferrable, the employee shall receive a lump-sum leave payment to avoid forfeiture of the leave. 33 Comp. Gen. 622 (1954) and B-166640, May 21, 1969. See also B-128026, July 20, 1956. However, the judges of the Tax Court, which was removed from the executive branch and established as a constitutional court, were not regarded as being "separated from the service" as contemplated by 5 U.S.C. µ 5551. Instead, their entitlement to payments for annual leave remained undisturbed and their accumulated leave would be paid upon separation or recredited upon return to a position covered by 5 U.S.C. µµ 6301-6312. 49 Comp. Gen. 545 (1970). (2) Restoration in VA after 90-day temporary appointment with Army--In August 1987, immediately before beginning a 90-day temporary appointment with the Army, the claimant was notified that she had prevailed in an equal employment opportunity complaint against the Veterans Administration (VA). As a result, she was reinstated as a VA employee with backpay and restoration of leave from February 1984 until she started working for the Army. In view of her reinstatement by VA, she is treated as an employee who is transferred from one agency to another. Consequently, she first became entitled to a lump-sum leave payment at the end of her 90-day temporary appointment, and the Army must pay her for her full annual leave balance, including restored leave. Priscilla M. Worrell, 68 Comp. Gen. 548 (1989). 3. Payment optional a. Duty in armed forces An employee who entered active duty in the armed forces requested that his leave remain to his credit until his return, but never returned to federal service. The action should be recorded as a separation and the individual is entitled to receive a lump-sum payment. B-162148, October 5, 1967. An employee who enters on active duty with the armed forces and elects to receive a lump-sum payment under 5 U.S.C. µ 5552 relinquishes any right to a recredit of the leave upon return to federal service. Joseph P. Reap, B-180926, March 28, 1975. A retired Regular officer serving in a civilian position who reports for 2 weeks active duty is entitled to receive a lump-sum payment or to have his leave remain to his credit until his return from active duty. 49 Comp. Gen. 444 (1970). b. Position in public international organization Under 5 U.S.C. µ 3582(a)(4), an employee who transfers to an international organization (as defined in 5 U.S.C. µ 3581) is entitled to elect to retain his annual leave to his credit or to receive a lump-sum payment. If he elects the lump-sum payment but is reemployed within 6 months after transfer, he must refund the lump-sum payment to the agency. See also FPM Supp. 990-2, Book 550, S2-2a(2) regarding leave restored by operation of 5 U.S.C. µ 6304(d)(1). 4. Lump-sum payment not payable a. Transfer to position where annual leave is transferable A lump-sum payment may not be made to an employee upon transfer to a position to which his annual leave is transferable, but instead his leave is transferred to his new position. 5 U.S.C. µ 6308. Where an employee resigns from one agency and is reemployed in another agency the following day, a lump-sum leave payment may not be made. If a lump-sum payment is erroneously made, the leave should be recredited at the time of reemployment, not after the lump sum amount has been repaid. 59 Comp. Gen. 335 (1980). See also Chapter 2, "G. Restoration of Leave." b. Personal ceiling limitation An employee may transfer all accumulated and currently accrued annual leave to his credit as of the date of transfer not in excess of the maximum limitation allowable under the leave system from which transferred, and that amount shall constitute the employee's annual leave ceiling until reduced under 5 U.S.C. µ 6304(c). 48 Comp. Gen. 212 (1968). c. Student trainee employed intermittently between full-time tours of duty Normally, an employee who moves to a position as an intermittent employee with no regular tour of duty is entitled to a lump-sum payment for accrued annual leave. However, if the employee is a student trainee, the period of intermittent employment between full-time tours of duty shall not be regarded as a transfer or separation for purposes of lump-sum leave payment, and any leave earned under regular employment shall remain to his credit. 37 Comp. Gen. 523 (1958). d. Exempted officers When an employee subject to the annual and sick leave provisions of 5 U.S.C. µ 6301 accepts a Presidential appointment, which is exempted from those provisions, he may not receive a lump-sum payment for annual leave. 40 Comp. Gen. 164 (1960); 38 Comp. Gen. 386 (1958); 33 Comp. Gen. 177 (1953); and B-165516, November 22, 1968. The accumulated and accrued annual leave is to be credited for payment upon separation or death under 5 U.S.C. µ 5551 or for recredit upon reemployment without a break in service in a position subject to the leave provisions. See 49 Comp. Gen. 545 (1970) and Judge Eugene Black, B-116694, January 28, 1976. The Copyright Royalty Tribunal is obligated to make the lump-sum annual leave due a retiring Commissioner. Although none of the leave was earned at the Tribunal because the Commissioner is a Presidential appointee serving in a position in the legislative branch not subject to the Annual and Sick Leave Act, he has leave to his credit carried over from service in a prior position in another agency. An employee's right to a lump-sum payment for accrued annual leave vests upon the employee's separation from the federal service, and it is the employing agency at the time of separation that must pay the employee for accrued annual leave to the employee's credit at the time of separation notwithstanding that the leave was earned in another agency. Presidential Appointees, 71 Comp. Gen. 411 (1992). An Air Force employee with annual leave to his credit received a Presidential appointment as a judge of the United States Court of Military Appeals, incident to which the judge claimed payment for his annual leave. A judge of this court is an "officer" as that term is defined in 5 U.S.C. µ 2104(a) (1988), and therefore he is exempt from the leave act. Accordingly, his claim may not be paid because an employee with annual leave to his credit who receives an appointment to a position exempt from the leave act is not considered separated from the federal service for the purpose of receiving a lump-sum leave payment under 5 U.S.C. µ 5551 (1988). The leave remains credited to him until he either separates from the federal service or returns to a position covered by the leave act. Judge Eugene R. Sullivan, 71 Comp. Gen. 522 (1992). A Foreign Service Officer, who was appointed Ambassador (an excepted position in which no leave is earned) in 1972, retired as a Foreign Service Officer in 1975 but remained Ambassador until 1976. He may not be paid lump-sum payments for accrued annual leave upon retirement as a Foreign Service Officer because the statute and Department of State regulations preclude such payment until an exempt officer is separated from the federal service or is transferred to a specified position. B-186043, October 4, 1976. If a lump-sum payment is made, the rate shall be the salary received prior to Presidential appointment but the time period shall be projected from the date of retirement. 40 Comp. Gen. 579 (1961). If the employee has any leave in a separate account restored under 5 U.S.C. µ 6304(d)(1), it shall be liquidated by lump-sum payment immediately upon transfer to the excepted position. FPM Supp. 990-2, Book 550, S2-2b(2). e. Transfer from temporary position An employee was voluntarily furloughed from a permanent position in order to accept a temporary position for 2 months, and then returned without a break in service to the permanent position. The annual leave which accrued in the temporary position shall be transferred and not paid in a lump sum. 33 Comp. Gen. 528 (1954). f. Payable upon garnishment Where the wife of a former employee seeks to garnish money due the employee for accrued annual leave for child support, and the former employee's whereabouts and/or continued existence is unknown, payment may be made without determination of the status of the employee since in this case, under 5 U.S.C. µ 5582, the wife would also receive any money due the employee if he is deceased. However, payment must be in accordance with the limitations contained in section 303(b) of the Consumer Protection Act, 15 U.S.C. µ 1673(b), since under Office of Personnel Management regulations, those limitations also apply to garnishment of payments in consideration of accrued leave. Wesley E. Pitts, B-207015, December 14, 1982. g. Absence without leave Former employee claims backpay equal to amount the agency deducted from her lump-sum leave payment to cover overpayments of pay for periods of alleged absence without leave. It is within the agency's administrative discretion to place employees who refuse to comply with order to report to work on leave without pay. In view of the administrative discretion which exists with respect to determinations concerning absence from duty, and in the absence of any finding by an appropriate authority of an unjustified or unwarranted personnel action, her claim is denied. Verda L. Campbell, B-221067, June 1, 1987. C. RATE PAYABLE -------------------------------------------------------- Chapter 3:0.3 1. Generally Under 5 U.S.C. µ 5551(a), the lump-sum payment is computed on the basis of the employee's rights at separation under all applicable laws and regulations existing at the time which would have affected his pay had he remained in the service for the period covered by the leave. 38 Comp. Gen. 161, 163 (1958). See also FPM Chapter 550, S2-3 and FPM Supp. 990-2, Book 550, S2-3. 2. Statutory pay increases a. General Schedule If the employee is separated prior to a statutory pay increase but the period of projected leave extends beyond the effective date of the increase, the lump-sum payment shall be adjusted to reflect the increased rate for any leave from the effective date of the pay increase. 47 Comp. Gen. 773 (1968); B-165201, October 2, 1968. b. Wage Board employees For prevailing rate (Wage Board) employees who retire or separate prior to the effective date of a wage increase under 5 U.S.C. µµ 5341-5349, and who receive a lump-sum payment for leave, there may be no retroactive adjustment to the lump-sum payment even if the leave would have extended beyond the effective date of the new wage rate. However, if the employee is on "terminal leave" up to or beyond the date the new wage rate is ordered into effect, his pay may be adjusted to reflect the new wage rates. 54 Comp. Gen. 655 (1975). The above-cited decision does not apply to those employees whose wages are negotiated under section 9(b) of Pub. L. No. 92-392 (5 U.S.C. µ 5343 note). Retroactive wage increases under the authority of section 9(b) are not limited to employees who were in the service of the government on the day the wage increase is ordered into effect. 57 Comp. Gen. 589 (1978), distinguishing 54 Comp. Gen. 655 (1975). Where a Wage Board employee retires or separates after issuance of an order granting a prospective wage increase but before the effective date of the increase, he is entitled to receive his lump-sum leave payment paid at the higher rate for the period extending beyond the effective date of the wage increase. 59 Comp. Gen. 494 (1980), distinguishing 54 Comp. Gen. 655 (1975). Where a Wage Board employee retires or separates prior to issuance of an order granting a prospective wage increase but his accrued leave extends beyond the effective date of the increase, he is entitled to receive his lump-sum leave payment paid at the higher rate for the period beyond the effective date of the increase, provided that the order granting the increase is issued prior to the effective date mandated in 5 U.S.C. µ 5344(a). 59 Comp. Gen. 494 (1980), distinguishing 54 Comp. Gen. 655 (1975). The rule in 54 Comp. Gen. 655 (1975) is limited to situations involving retroactive wage increases where the employee retires or separates before the effective date of a wage increase and the order granting the new wage rate is issued after the effective date of the increase. In those situations, the lump-sum leave payment may not be adjusted upward due to the provisions of 5 U.S.C. µ 5344(b). Lump-sum annual leave payments made to prevailing rate employees may be adjusted to reflect the increase in rates of pay commencing after the effective date of Pub. L. No. 96-369, October 1, 1980, only if the employee performed service after the effective date of the act (October 1, 1980) as required by subsection 114(c) of the act. 61 Comp. Gen. 94 (1981). 3. Step increases a. Generally Where prior to date of separation, a General Schedule employee has completed the requisite period of actual service, and has met all other conditions for a within-grade advancement under 5 U.S.C. µ 5335, the fact that, because such advancements are not effective until the beginning of the next pay period following completion of the required period of service, the advancement was not actually received prior to separation, would not preclude including it in the computation of the lump-sum payment under 5 U.S.C. µ 5551 for leave extending beyond the beginning of the next pay period. 26 Comp. Gen. 102 (1946). An employee who was separated from federal service by a reduction in force received a lump-sum payment for accrued annual leave. Since the period covered by the lump-sum leave payment is not counted as federal service, the employee may not, upon later reemployment, use the period for determining entitlement to a periodic step increase. 59 Comp. Gen. 15 (1979). b. Eligibility completed while on leave without pay Where the employee completed the requisite service for a step increase while on leave without pay in connection with a reduction in force, the step increase would be included in his lump-sum payment even though the employee did not return to a pay status. 27 Comp. Gen. 330 (1947). c. Eligibility completed while on military furlough An employee was credited with step increases while on military furlough and resigned without returning to his civilian position. Such step increases should be included in the computation of his lump-sum payment. B-115871, August 24, 1953. 4. Premium pay An employee's lump-sum payment shall include the premium percentage pay for irregular or unscheduled overtime to which he would have been entitled had he remained in the service for the period covered by his leave. 36 Comp. Gen. 18 (1956); and 38 Comp. Gen. 161 (1958). An employee who was receiving premium pay for standby duty under the provisions of 5 U.S.C. µ 5545(c)(1) is not entitled to such premium pay while on extended sick leave pending disability retirement, and thus is not entitled to include the premium pay rate in his lump-sum payment for leave upon separation. 59 Comp. Gen. 683 (1980). 5. Cost-of-living allowances and foreign differentials a. Separated at post of duty If an employee is receiving a cost-of-living allowance or post differential and he is separated at his post of duty, such differential or allowance shall be included in the computation of his lump-sum payment. 52 Comp. Gen. 993 (1973); 32 Comp. Gen. 323 (1953); 29 Comp. Gen. 10 (1949); and 28 Comp. Gen. 465 (1949). b. Separated away from post of duty An employee who was separated after leaving his overseas post may not have the post differential or cost-of-living allowance he was receiving included in his lump-sum leave payment since he was not receiving the differential or allowance at the time of separation. 38 Comp. Gen. 594 (1959); 33 Comp. Gen. 287 (1954); and 28 Comp. Gen. 465 (1949). Where an employee was evacuated from Vietnam to the United States and was no longer receiving post differential, he is not entitled to inclusion of post differential in the computation of the lump-sum payment for accumulated annual leave upon separation from service in the United States. William E. Pope, Jr., B-186046, November 9, 1976. c. Separated while on temporary duty An employee who was receiving a cost-of-living allowance returned to the United States for temporary duty and was then separated from federal service after being in an annual leave status for a few days. His lump-sum payment should include the cost-of-living allowance even though he was separated away from his overseas post if it was in the public interest not to return him to his overseas post for separation. B-155356, November 20, 1964. 6. Reemployed annuitants While a reemployed annuitant's pay will be reduced by the amount of his annuity, hi