A-75907, JUNE 4, 1936, 15 COMP. GEN. 1058

A-75907, JUNE 4, 1936, 15 COMP. GEN. 1058

LEAVES OF ABSENCE - SICK AND ANNUAL - ACTS OF MARCH 14, 1936 UNLESS THE PRESIDENT SHALL, BY THE UNIFORM REGULATIONS TO BE ISSUED UNDER SECTION 7 OF THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND ID. 1162, PROVIDE OTHERWISE, SICK LEAVE REGULARLY AND PROPERLY GRANTED PRIOR TO MARCH 14, 1936, IN ACCORDANCE WITH THE LEAVE LAWS AND REGULATIONS THEN IN EFFECT, WILL REQUIRE NO ADJUSTMENT OF THE EMPLOYEE'S COMPENSATION OR LEAVE RECORD, BUT WILL STAND AS CHARGED TO SICK LEAVE AND BE FOR CONSIDERATION IN DETERMINING WHAT, IF ANY, SICK LEAVE THE EMPLOYEE WILL BE ENTITLED TO THEREAFTER UNDER THE LIMITATIONS PRESCRIBED IN THE ACT OF MARCH 14, 1936, 49 STAT. 1162, IF STILL IN THE SERVICE. ANNUAL OR SICK LEAVE OF ABSENCE GRANTED AT ANY TIME DURING A CALENDAR YEAR IN EXCESS OF THE ACCUMULATED AND EARNED LEAVE, IF THE LEAVE SO GRANTED WAS AUTHORIZED UNDER THE APPLICABLE ACT OF MARCH 14, 1936, NEED NOT BE ADJUSTED, UNLESS OTHERWISE PROVIDED BY REGULATION OF THE PRESIDENT, UPON SEPARATION FROM THE SERVICE OR RETIREMENT, WITH ANNUITY, FOR ANY REASON. SICK LEAVE OF ABSENCE IS NOT GRANTED BY THE ACT OF MARCH 14, 1936, 49 STAT. 1162, ON A YEARLY BASIS, BUT ON A MONTHLY BASIS, THE MONTHLY ACCRUAL OF ONE AND ONE-QUARTER DAYS BECOMING AVAILABLE TO THE EMPLOYEE AT ANY TIME ON OR AFTER THE FIRST DAY OF THE MONTH. PER DIEM EMPLOYEES PAID ONLY WHEN ACTUALLY EMPLOYED, PER DIEM OR PER HOUR EMPLOYEES HIRED FOR AN EMERGENCY, SUCH AS FIRES, FLOODS, ETC., PART-TIME OR INTERMITTENT EMPLOYEES, CONTRACT EMPLOYEES NOT CONTINUOUSLY EMPLOYED, EMPLOYEES PAID AT HOURLY RATES AND ENGAGED ON AN INTERMITTENT BASIS TO MAINTENANCE AND SIMILAR WORK, AND FEE BASIS EMPLOYEES, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND ID. 1162, RESPECTIVELY. PIECE WORKERS TEMPORARILY BUT CONTINUOUSLY EMPLOYED FOR ONE MONTH OR MORE ARE ENTITLED TO ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND CONDITIONS OF THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND ID. 1162, RESPECTIVELY, APPLICABLE TO TEMPORARY EMPLOYEES, BUT IF NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING THE REGULAR TOUR OF DUTY THEY ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. EXISTING LEAVE LAWS APPLICABLE TO FEDERAL EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHICH ALLOW ANNUAL OR SICK LEAVE IN EXCESS OF THAT GRANTED BY THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND ID. 1162, RESPECTIVELY, REMAIN IN EFFECT AND NO PORTION OF SAID ACTS OF MARCH 14, 1936, SO EXCEEDED, IS APPLICABLE TO SUCH EMPLOYEES. PERSONS ON A STATE, MUNICIPAL, OR OTHER PUBLIC, BUT NON-FEDERAL, PROJECT OR PERSONS ON A FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES OUT OF FUNDS ALLOTTED BY THE WORKS PROGRESS ADMINISTRATION ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND ID. 1162, RESPECTIVELY, BUT PERSONS EMPLOYED IN AN ADMINISTRATIVE OR CLERICAL CAPACITY ON WORKS PROGRESS ADMINISTRATION PROJECTS AND PAID FROM SAID ADMINISTRATION FUNDS, INCLUDING THOSE WHO ARE NOT DIRECTLY EMPLOYED IN THE CENTRAL OFFICE IN THE DISTRICT OF COLUMBIA OR AT ONE OF ITS DISTRICT OR LOCAL HEADQUARTERS, ARE ENTITLED TO ANNUAL AND SICK LEAVE UNDER SAID ACTS.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 4, 1936:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 25, 1936, AS FOLLOWS:

THE PRESIDENT, IN LETTER OF MARCH 19, 1936, DIRECTED THAT THE COMMISSION CALL TOGETHER REPRESENTATIVES OF THE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND GOVERNMENT CORPORATIONS TO PREPARE FOR SUBMISSION TO HIM DRAFTS OF UNIFORM REGULATIONS TO GOVERN ANNUAL LEAVE AND SICK LEAVE, RESPECTIVELY, AS PRESCRIBED IN PUBLIC, NO. 471 AND PUBLIC, NO. 472, 74TH CONGRESS, APPROVED MARCH 14, 1936. ACTING ON BEHALF OF THE COMMITTEES APPOINTED THROUGH AUTHORIZATION OF THESE REPRESENTATIVES AT A MEETING HELD MARCH 26, 1936, THE COMMISSION RESPECTFULLY REQUESTS YOUR DECISION ON THE FOLLOWING QUESTIONS.

QUESTION 1. MAY SICK LEAVE GRANTED IN EXCESS OF THE RATE OF 1 1/4 DAYS A MONTH UNDER THE LAW AND REGULATIONS IN EFFECT DURING THE PERIOD JANUARY 1 TO MARCH 14, 1936, BE ALLOWED TO STAND AS GRANTED, WITHOUT ADJUSTMENT?

SECTIONS 2 AND 3 OF PUBLIC, NO. 472 READ:

"SEC. 2. ON AND AFTER JANUARY 1, 1936, CUMULATIVE SICK LEAVE WITH PAY, AT THE RATE OF ONE AND ONE-QUARTER DAYS PER MONTH, SHALL BE GRANTED TO ALL CIVILIAN OFFICERS AND EMPLOYEES, THE TOTAL ACCUMULATION NOT TO EXCEED NINETY DAYS. TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO ONE AND ONE- QUARTER DAYS SICK LEAVE FOR EACH MONTH OF SERVICE: PROVIDED, THAT ALL SUCH EMPLOYEES SHALL FURNISH CERTIFICATES SATISFACTORY TO THE HEAD OF THE APPROPRIATE DEPARTMENT OR INDEPENDENT ESTABLISHMENT.

"SEC. 3. ADMINISTRATIVE OFFICERS MAY ADVANCE THIRTY DAYS SICK LEAVE WITH PAY BEYOND ACCRUED SICK LEAVE IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.'

IN A LARGE NUMBER OF CASES THROUGHOUT THE SERVICE SICK LEAVE HAS BEEN GRANTED TO EMPLOYEES BETWEEN JANUARY 1, 1936, AND MARCH 14, 1936, IN EXCESS OF ACCRUED SICK LEAVE OF 1 1/4 DAYS PER MONTH, AND IN MANY CASES IN EXCESS OF 15 DAYS, THE TOTAL THAT COULD ACCRUE DURING A CALENDAR YEAR. DECISION OF MARCH 27, 1936 (A-72714), IN THE CASE OF GOVERNMENT PRINTING OFFICE EMPLOYEES FOR WHOM NO BASIS FOR SICK LEAVE EXISTED PRIOR TO MARCH 14, 1936, THE COMPTROLLER GENERAL SAID: "SICK LEAVE OF ABSENCE--- OTHERWISE ALLOWABLE UNDER THE ACT--- MAY BE SUBSTITUTED FOR LEAVE WITHOUT PAY OR ANNUAL LEAVE TAKEN BY EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE BETWEEN JANUARY 1 AND MARCH 14, 1936, ONLY TO THE EXTENT OF THE SICK LEAVE WHICH HAD ACCUMULATED FOR THE PERIOD FROM JANUARY 1, 1936, * * * AT THE RATE OF 1 1/4 DAYS PER MONTH.' THE DECISION ALSO STATED THAT THERE IS NO INTIMATION IN THE STATUTE THAT SECTION 3, AUTHORIZING THE ADVANCE OF SICK LEAVE BEYOND ACCRUALS NOT TO EXCEED 30 DAYS, WAS INTENDED TO OPERATE RETROACTIVELY.

IN 1932, IN A CASE INVOLVING A SHIFT IN THE BASIS FOR GRANTING ANNUAL LEAVE NOT DISSIMILAR TO THE PRESENT SHIFT IN THE BASIS FOR GRANTING SICK LEAVE, THE COMPTROLLER GENERAL IN DECISION A-43338 OF JULY 16, 1932 (VOL. 12, PAGE 63), RESPECTING EXCESS ANNUAL LEAVE ALREADY TAKEN AND THE EFFECT OF THAT SECTION ON THE NEW BASIS ESTABLISHED FOR FURLOUGH BY THE ECONOMY ACT, SAID:

"THE FACT THAT AN EMPLOYEE PRIOR TO JULY 1, 1932, HAD TAKEN ANNUAL LEAVE IN EXCESS OF THE AMOUNT THAT HAD ACCRUED AT THE RATE OF 2 1/2 DAYS A MONTH, BUT NOT IN EXCESS OF THE AMOUNT TO WHICH HE WOULD HAVE BEEN ENTITLED DURING THE CALENDAR YEAR ENDING DECEMBER 31, 1932, BUT FOR THE PASSAGE OF THE ACT OF JUNE 30, 1932, DOES NOT REQUIRE THAT THE EXCESS LEAVE BE REGARDED AS LEAVE WITHOUT PAY OR BE CHARGED AGAINST THE FURLOUGH TIME TO WHICH THE EMPLOYEE IS ENTITLED AS THE RESULT OF THE OPERATION OF SECTION 101 OF THE SAID (ECONOMY) ACT.'

THERE IS ALSO CITED FOR CONSIDERATION IN THIS CONNECTION THE DECISION OF THE COMPTROLLER OF THE TREASURY OF DECEMBER 27, 1920 (VOL. XXVII, PAGE 583). THE SYLLABUS OF THIS DECISION READS:

"AN EMPLOYEE WHO HAS BEEN GRANTED THE FULL AMOUNT OF LEAVE WITH PAY ALLOWED IN ANY ONE YEAR, AND HAS BEEN PAID THEREFOR, IS NOT OBLIGATED TO CONTINUE IN HIS POSITION FOR THE REMAINDER OF THE FISCAL YEAR, AND SHOULD NOT BE REQUIRED TO REFUND ANY PORTION OF THE COMPENSATION SO RECEIVED WHEN RESIGNING BEFORE THE EXPIRATION OF THE FISCAL YEAR.' AND THE CONCLUDING PARAGRAPH THEREOF READS:

"WHEN AN EMPLOYEE HAS BEEN LAWFULLY GRANTED LEAVE WITH PAY AND HAS BEEN PAID THE AMOUNT DUE FOR THE PERIOD OF LEAVE, HIS RIGHT TO THE MONEY BECOMES ABSOLUTE, AND IS NOT SUBJECT TO ANY CONDITION THAT HE SHALL PERFORM SERVICE AFTER THE PERIOD OF LEAVE HAS EXPIRED. NOR DOES THE STATUTE NOW UNDER CONSIDERATION JUSTIFY STATING AN ACCOUNT WITH A FORMER EMPLOYEE AND RAISING A CHARGE AGAINST HIM.'

QUESTION 2. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, HOW IS THE ADJUSTMENT TO BE MADE?

(A) IN THE CASE OF AN EMPLOYEE WHO HAS, SUBSEQUENT TO MARCH 14, 1936, BEEN SEPARATED FROM THE SERVICE;

(B) IN THE CASE OF AN EMPLOYEE WHO, SUBSEQUENT TO MARCH 14, 1936, HAS BEEN RETIRED WITH ANNUITY FOR ANY REASON;

(C) IN THE CASE OF AN EMPLOYEE WHO HAS REMAINED AND IS NOW IN THE SERVICE.

QUESTION 3. MAY ANNUAL OR SICK LEAVE GRANTED AT ANY TIME DURING A CALENDAR YEAR IN EXCESS OF THE ACCUMULATED LEAVE AND OF THE LEAVE EARNED BE ALLOWED TO STAND WITHOUT ADJUSTMENT IN THE FOLLOWING CASES:

(A) WHERE THE EMPLOYEE HAS BEEN SEPARATED FROM THE SERVICE;

(B) WHERE THE EMPLOYEE HAS BEEN RETIRED WITH ANNUITY FOR ANY REASON?

IN THIS CONNECTION PLEASE SEE DECISIONS CITED UNDER QUESTION 1 ABOVE.

QUESTION 4. MAY THE PREVAILING AND LONG-ESTABLISHED PRACTICE OF GRANTING SICK LEAVE IN ANY LEAVE YEAR IN ADVANCE OF ITS ACCRUAL BUT NOT IN EXCESS OF THE YEARLY ALLOWANCE BE CONTINUED?

THIS QUESTION REFERS TO CURRENT-YEAR SICK LEAVE AS DISTINGUISHED FROM THE 30-DAY ADVANCE SICK LEAVE, WHICH LATTER, ACCORDING TO THE WORDING OF THE LAW, IS AVAILABLE ONLY FOR "CASES OF SERIOUS DISABILITY OR AILMENTS, AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.' SICK LEAVE IN GENERAL, UNDER THE ACT OF MARCH 15, 1898 (30 STAT. 316), HAS HERETOFORE BEEN GRANTED ON THE PRINCIPLE THAT IN THE CASE OF ILLNESS ALL THE SICK LEAVE FOR THE YEAR IS AVAILABLE.

ALTHOUGH IT IS TRUE THAT PUBLIC, NO. 472--- 74TH CONGRESS, DOES NOT CONTAIN THE WORDS "CALENDAR YEAR" AS THEY APPEAR IN PUBLIC, NO. 471--- 74TH CONGRESS (ANNUAL LEAVE STATUTE), THE FACT IS THAT THE ACT ALTHOUGH APPROVED MARCH 14, 1936, WAS MADE RETROACTIVE TO JANUARY 1, 1936, THE BEGINNING OF A CALENDAR YEAR. IT IS NOT BELIEVED THAT THE NEW SICK LEAVE STATUTE IS LESS LIBERAL IN ITS TERMS THAN THE PREVIOUS PRACTICE EXCEPT WITH RESPECT TO THE ONE ITEM OF AMOUNT OF SICK LEAVE (15 DAYS INSTEAD OF 30 DAYS) WHICH MAY BE GRANTED DURING A YEAR FOR ORDINARY ABSENCE DUE TO SICKNESS WITHOUT RESORT TO THE SPECIAL PRIVILEGE OF ADVANCING SICK LEAVE AUTHORIZED BY SECTION 3 OF THE NEW ACT.

QUESTION 5. UNDER THE PROVISIONS OF LAW SPECIFYING "ALL CIVILIAN OFFICERS AND EMPLOYEES" AND ,REGARDLESS OF TENURE" ARE EMPLOYEES WHOSE WORK IS NOT CONTINUOUS, SUCH AS VARIOUS TYPES OF INTERMITTENT AND OTHER NONREGULAR EMPLOYEES, ENTITLED TO SICK LEAVE OR TO ANNUAL LEAVE?

BOTH THE ANNUAL LEAVE AND THE SICK LEAVE ACTS CONTAIN CERTAIN SPECIAL EXCEPTIONS, BUT ARE THE SAME IN AUTHORIZING THE GRANTING OF ANNUAL LEAVE AND SICK LEAVE TO ALL CIVILIAN OFFICERS AND EMPLOYEES "REGARDLESS OF THEIR TENURE.'

THERE ARE IN VARIOUS BRANCHES OF THE GOVERNMENT SERVICE GROUPS OF EMPLOYEES WHO ARE EMPLOYED ON AN INTERMITTENT, SEASONAL, EMERGENCY, INDEFINITE, AND OTHER NONREGULAR BASIS, WHO ARE FREQUENTLY PAID ON A PER DIEM BASIS, BUT ARE ALSO PAID OTHERWISE. THE LANGUAGE OF BOTH ACTS, "ALL CIVILIAN OFFICERS AND EMPLOYEES" AND "REGARDLESS OF THEIR TENURE, MAKES NO SPECIFIC EXCEPTION OF THESE GROUPS OF EMPLOYEES.

HOWEVER, SINCE THE TERMS OF THE EMPLOYMENT OF THESE PERSONS PROVIDE FOR PAYMENT ONLY WHEN ACTUALLY EMPLOYED, THERE WOULD APPEAR TO BE A QUESTION AS TO WHETHER THEY SHOULD BE PAID WHEN NOT ON A DUTY STATUS, WHETHER THE ABSENCE IS BECAUSE OF ILLNESS OR OTHER CAUSES. AMONG THE GROUPS OF EMPLOYEES AFFECTED AND CONCERNING WHOM DECISION IS REQUESTED ARE:

(A) PER DIEM EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED.

(B) PER DIEM OR PER HOUR EMPLOYEES ENGAGED IN AN EMERGENCY WHO MAY BE EMPLOYED FOR MORE THAN ONE 7- OR 8-HOUR SHIFT IN 24 HOURS DURING SAID EMERGENCY, FIRE, FLOOD, ETC.

(C) PART-TIME EMPLOYEES, SUCH AS THOSE CONSIDERED IN YOUR DECISION A- 36473, MAY 9, 1931, TO THE SECRETARY OF COMMERCE, AND DECISION A 69423, MARCH 16, 1936, TO THE SECRETARY OF AGRICULTURE.

(D) PERSONS ENGAGED UNDER CONTRACT TO FURNISH USUALLY A SPECIFIED NUMBER OF REPORTS IN A YEAR, BUT NOT CONTINUOUSLY EMPLOYED.

(E) EMPLOYEES ENGAGED TEMPORARILY FOR A MONTH OR MORE ON A PIECE PRICE BASIS.

(F) EMPLOYEES WHO ARE PAID AT HOURLY RATES, BUT WHO ARE NOT ENGAGED ON CONSTRUCTION WORK, AS, FOR EXAMPLE, MECHANICS, SKILLED LABORERS, AND OTHERS ENGAGED IN MANY SERVICES ON MAINTENANCE, REPAIR, CLEAN-UP WORK, AND THE LIKE, WHERE EMPLOYMENT IS MORE OR LESS INTERMITTENT AND NOT ON A REGULAR OR CONTINUOUS BASIS.

(G) EMPLOYEES PAID ON A FEE BASIS, SUCH AS PHYSICIANS AND SURGEONS AND OTHER CONSULTANTS.

QUESTION 6. AT WHAT TIME DURING ANY MONTH OF SERVICE MAY THE SICK LEAVE ACCRUING FOR THAT MONTH BE CONSIDERED AVAILABLE TO THE EMPLOYEE? THIS QUESTION RAISES ON A MONTHLY SCALE THE SAME PRINCIPLE REFERRED TO IN QUESTION 3 AS TO AVAILABILITY DURING THE YEAR OF SICK LEAVE. THE VIEW HAS BEEN EXPRESSED THAT IT WOULD BE IN THE INTEREST OF EFFICIENT ADMINISTRATION TO MAKE SICK LEAVE ACCRUING DURING ANY MONTH AVAILABLE TO THE EMPLOYEE AT ANY TIME AFTER THE BEGINNING OF THE MONTH.

QUESTION 7. SECTION 5 OF PUBLIC, NO. 471, AND SECTION 5 OF PUBLIC, NO. 472, READ:

"NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.'

THERE IS GREAT VARIATION IN THE GRANTS OF ANNUAL LEAVE AND SICK LEAVE TO FEDERAL EMPLOYEES STATIONED IN ALASKA, HAWAII, PUERTO RICO, CANAL ZONE, ETC., AND IN FOREIGN COUNTRIES. SOME STATUTES PERMIT THIRTY DAYS' ANNUAL LEAVE WITHOUT ACCUMULATION, AND SOME HAVE BEEN CONSTRUED AS NOT PERMITTING SICK LEAVE.

DECISION IS DESIRED WHETHER THE LANGUAGE OF SECTION 5 OF THE TWO ACTS IS SUCH AS TO PERMIT A CHOICE BETWEEN THE LEAVE GRANTED BY PUBLIC, NO. 471, AND PUBLIC, NO. 472, RESPECTIVELY, AS A WHOLE, AND THE LEAVE GRANTED BY OTHER EXISTING AND APPLICABLE LAWS AS A WHOLE; OR WHETHER IT IS PERMISSIBLE TO SELECT THE MOST DESIRABLE FEATURES OF THE LAWS AND MERGE THEM INTO REGULATIONS FOR EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. AS A SPECIFIC ILLUSTRATION, MAY AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE STATIONED IN ALASKA FOR WHOM EXISTING LAW (SEC. 583, TITLE 5, U.S. CODE) GRANTS THIRTY DAYS' ANNUAL LEAVE WITHOUT ACCUMULATION, BE PERMITTED TO HAVE THE THIRTY DAYS' LEAVE PLUS THE ACCUMULATION PERMITTED BY PUBLIC, NO. 471? OR MAY HE BE PERMITTED TO COME WITHIN THE TERMS OF PUBLIC, NO. 471, AS A WHOLE?

QUESTION 8. MAY ANNUAL LEAVE OR SICK LEAVE BE GRANTED TO PERSONS WHO ARE COMPENSATED OUT OF FUNDS APPROPRIATED FOR OR ALLOTTED TO THE WORKS PROGRESS ADMINISTRATION AND WHO COME WITHIN THE FOLLOWING GROUPS:

(A) PERSONS ON A STATE, MUNICIPAL, OR OTHER PUBLIC BUT NON-FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES, OUT OF FUNDS ALLOTTED BY W.P.A.;

(B) PERSONS ON A FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES OUT OF FUNDS ALLOTTED BY W.P.A.;

(C) PERSONS EMPLOYED IN ADMINISTRATIVE OR CLERICAL CAPACITY IN CONNECTION WITH W.P.A. PROJECTS WHO ARE PAID FROM FUNDS ALLOTTED BY W.P.A. BUT WHO ARE NOT DIRECTLY EMPLOYED IN THE CENTRAL OFFICE OF W.P.A. IN THE DISTRICT OF COLUMBIA OR AT ONE OF ITS DISTRICT OR LOCAL HEADQUARTERS. IT IS UNDERSTOOD, OF COURSE, THAT EMPLOYEES OF THE CENTRAL OFFICE AND THE DISTRICT OFFICES OF W.P.A. COME WITHIN THE TERMS OF PUBLIC, NO. 471, AND PUBLIC, NO. 472?

FOR YOUR INFORMATION IT IS STATED THAT THE TWO COMMITTEES REFERRED TO ON PAGE 1 OF THIS LETTER HAVE DEFERRED FINAL ACTION ON THE DRAFTS OF PROPOSED REGULATIONS TO GOVERN ANNUAL LEAVE AND SICK LEAVE, TO BE SUBMITTED TO THE PRESIDENT, UNTIL AFTER YOU HAVE RENDERED DECISION IN RESPONSE TO THE QUESTIONS HEREIN PRESENTED. YOU WILL APPRECIATE, THEREFORE, THE NATURAL EXPRESSION OF HOPE THAT DECISION ISSUE SHORTLY.

REFERRING TO QUESTION 1, THE ACT OF MARCH 14, 1936, DOES NOT SPECIFICALLY REQUIRE THAT SICK LEAVE OF ABSENCE LEGALLY AND PROPERLY GRANTED IN EXCESS OF THE RATE OF 1 1/4 DAYS PER MONTH DURING THE PERIOD JANUARY 1 TO MARCH 14, 1936, BUT GRANTED WITHIN THE LIMITATIONS AND SUBJECT TO THE TERMS AND CONDITIONS OF THE LEAVE LAWS AND REGULATIONS THEN IN EFFECT, SHALL BE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY AS TO EMPLOYEES REMAINING IN THE SERVICE; NOR DOES IT REQUIRE ANY WITHHOLDING OF COMPENSATION ON ACCOUNT OF SUCH EXCESS SICK LEAVE AS TO EMPLOYEES SEPARATED FROM THE SERVICE. NEITHER DOES IT PROVIDE THAT SUCH EXCESS LEAVE SHALL NOT BE SO CHARGED OR COMPENSATION THEREFOR WITHHELD. CONSEQUENTLY, UNLESS THE PRESIDENT SHALL, BY THE UNIFORM REGULATIONS TO BE ISSUED UNDER SECTION 7 OF THE STATUTE, PROVIDE OTHERWISE, SICK LEAVE REGULARLY AND PROPERLY GRANTED PRIOR TO MARCH 14, 1936, IN ACCORDANCE WITH THE LEAVE LAWS AND REGULATIONS THEN IN EFFECT, WILL REQUIRE NO ADJUSTMENT OF THE EMPLOYEE'S COMPENSATION OR LEAVE RECORD BUT WILL STAND AS CHARGED TO SICK LEAVE AND BE FOR CONSIDERATION IN DETERMINING WHAT, IF ANY, SICK LEAVE THE EMPLOYEE WILL BE ENTITLED TO THEREAFTER UNDER THE LIMITATIONS PRESCRIBED IN THE ACT OF MARCH 14, 1936, IF STILL IN THE SERVICE. THAT IS TO SAY, IT WOULD BE WITHIN THE POWER OF THE PRESIDENT, UNDER THE LAW, TO MAKE PROVISION IN THE REGULATIONS FOR ADJUSTMENTS IN SUCH CASES, BUT HE IS NOT REQUIRED TO DO SO; AND IF THE REGULATIONS DO NOT SO PROVIDE, THE ADJUSTMENTS WILL NOT BE AUTHORIZED.

AS QUESTION NO. 1 IS NOT ANSWERED IN THE NEGATIVE, CONSIDERATION OF QUESTION NO. 2 IS NOT NECESSARY.

WITH REFERENCE TO QUESTION 3, AND ON THE ASSUMPTION THAT THE LEAVE SO GRANTED WAS AUTHORIZED UNDER THE LAW, BOTH (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE, UNLESS THE REGULATIONS TO BE PRESCRIBED PURSUANT TO THE ACTS OF MARCH 14, 1936, SHALL PROVIDE OTHERWISE. SEE ANSWER TO QUESTION 1.

QUESTION 4 IS ANSWERED IN THE NEGATIVE. SECTION 3 OF THE ACT PROVIDES FOR THE GRANTING OF SICK LEAVE "AT THE RATE OF 1 1/4 DAYS PER MONTH.' HENCE, THE YEAR IS NO LONGER THE UNIT ON THE BASIS OF WHICH SICK LEAVE MAY BE GRANTED.

REFERRING TO QUESTION 5, THE CLASSES OF EMPLOYEES MENTIONED IN PARAGRAPHS (A), (B), (C), (D), (F), AND (G) ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY. AN APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDING FOR PAYMENT OF COMPENSATION ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" OR ON A FEE BASIS FOR THE PARTICULAR SERVICE RENDERED, IS INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY. REFERRING TO PARAGRAPH (E) UNDER QUESTION 5, PIECE WORKERS TEMPORARILY BUT CONTINUOUSLY EMPLOYED FOR 1 MONTH OR MORE ARE ENTITLED TO SICK AND ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND SUBJECT TO THE CONDITIONS OF THE LEAVE ACTS OF MARCH 14, 1936, APPLICABLE TO TEMPORARY EMPLOYEES. THOSE NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING THE REGULAR TOUR OF DUTY ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY.

THE SUGGESTED ANSWER TO QUESTION 6 IS CORRECT; THAT IS, SICK LEAVE ACCRUING DURING ANY MONTH IS AVAILABLE TO THE EMPLOYE AT ANY TIME ON OR AFTER THE 1ST DAY OF THE MONTH.

REFERRING TO QUESTION 7, IT MAY BE STATED THAT THE LEGISLATIVE INTENT OF SECTION 5 OF THE LEAVE ACTS OF MARCH 14, 1936, IS NOT ENTIRELY CLEAR. WOULD SEEM, HOWEVER, THAT AS THERE COULD BE NO ,CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL" WITHOUT CONTINUING ALSO THE TERMS AND CONDITIONS ON WHICH SUCH DIFFERENTIAL NOW OBTAINS, IT IS CONCLUDED THAT ALL EXISTING LEAVE LAWS APPLICABLE TO "EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES," WHICH ALLOW AN AMOUNT OF ANNUAL OR SICK LEAVE IN EXCESS OF THAT GRANTED BY THE LEAVE ACTS OF MARCH 14, 1936, REMAIN IN FULL FORCE AND EFFECT AND THAT NO PORTION OF THE RESPECTIVE ANNUAL OR SICK-LEAVE ACTS OF MARCH 14, 1936, SO EXCEEDED, WILL BE APPLICABLE TO SUCH EMPLOYEES.

THE CLASSES OF EMPLOYEES OR WORKERS MENTIONED IN PARAGRAPHS (A) AND (B) UNDER QUESTION 8 ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY, BUT AS BOTH OF THE LEAVE STATUTES OF MARCH 14, 1936, GRANT LEAVE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED," WITH CERTAIN EXCEPTIONS, THE EMPLOYEES MENTIONED IN PARAGRAPH (C) OF QUESTION 8 ARE ENTITLED TO BOTH SICK AND ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND SUBJECT TO THE CONDITIONS OF SAID STATUTES.