B-112786, JAN 28, 1953

B-112786, JAN 28, 1953

PRECIS-UNAVAILABLE

HONORABLE C. L. EDWARDS, UNITED STATES CIVIL SERVICE COMMISSION:

REFERENCE IS MADE TO LETTER OF NOVEMBER 12, 1952, FROM THE THEN CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, WHEREIN IT IS STATED THAT THE COMMISSION HAS RECEIVED A SUGGESTION THAT LEGISLATION BE CONSIDERED INVOLVING CERTAIN CASES OF SICK AND ANNUAL LEAVE IN CONNECTION WITH COMPENSATION ALLOWANCES UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT, BUT BEFORE CONSIDERING SUCH SUGGESTION, YOU DESIRE AN EXPRESSION OF THE VIEWS OF THIS OFFICE WHETHER SUCH LEGISLATION WOULD BE NECESSARY.

THE ABOVE LETTER REFERS TO THE FACT THAT EMPLOYEES WHO QUALIFY FOR EMPLOYEES' COMPENSATION MAY ELECT TO USE THEIR SICK AND ANNUAL LEAVE INSTEAD OF ACCEPTING COMPENSATION AND THAT WHERE SUCH A VOLUNTARY ELECTION HAS BEEN MADE NO QUESTION ARISES, BUT THAT IN CERTAIN CASES SUCH AS THOSE INVOLVING TUBERCULOSIS OR OTHER OCCUPATIONAL DISEASE ALLEGED TO HAVE BEEN CONTRACTED IN THE PERFORMANCE OF DUTY, CONSIDERABLE TIME MAY ELAPSE BECAUSE OF THE DOUBT INVOLVED BEFORE A CLAIM IS FINALLY ADJUDICATED. THE MEANTIME, AN EMPLOYEE MAY BE CARRIED ON SICK AND ANNUAL LEAVE IN ORDER TO HAVE AN INCOME EVEN THOUGH HE WOULD NOT HAVE CHOSEN TO USE HIS LEAVE IF THE COMPENSATION CLAIM HAD BEEN PROMPTLY APPROVED. UPON THE APPROVAL OF HIS CLAIM, IT MAY BE THAT AN EMPLOYEE WOULD PREFER TO RECEIVE EMPLOYEES' COMPENSATION FOR THE PERIOD HE WAS ABSENT ON SICK AND ANNUAL LEAVE BUT IS UNABLE TO BE PAID SUCH COMPENSATION UNLESS IT IS POSSIBLE TO REFUND THE SALARY RECEIVED FOR THE LEAVE WITH PAY AND TO SUBSTITUTE LEAVE WITHOUT PAY THEREFOR. IN ORDER TO ACCOMPLISH THAT OBJECTIVE, IT HAS BEEN SUGGESTED TO THE CIVIL SERVICE COMMISSION THAT LEGISLATION WOULD BE NECESSARY, APPARENTLY IN THE FORM OF AN AMENDMENT TO THE FEDERAL EMPLOYEES COMPENSATION ACT.

SECTION 8 OF THE FEDERAL EMPLOYEES COMPENSATION ACT OF 1916, AS AMENDED BY THE ACT OF OCTOBER 14, 1949, 63 STAT. 854 (5 U.S.C. 758), PROVIDES AS FOLLOWS:

"IF AT THE TIME THE DISABILITY BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY USE SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS COMPENSATION FOR DISABILITY SHALL NOT BEGIN AND THE TIME PERIODS SPECIFIED IN SECTION 2 SHALL NOT BEGIN TO RUN UNTIL THE ANNUAL OR SICK LEAVE HAS CEASED."

AS FAR BACK AS 1930 THIS OFFICE RECOGNIZED THAT A SUBSTITUTION OF LEAVE WITHOUT PAY COULD BE MADE FOR A PERIOD OF SICK LEAVE WITH PAY IN ORDER FOR AN EMPLOYEE TO BE PAID DISABILITY COMPENSATION UNDER THE EMPLOYEES COMPENSATION ACT 39 261.743 OF SEPTEMBER 7, 1916. DECISION OF AUGUST 29, 1930, A-33134, TO THE SECRETARY OF THE INTERIOR.

THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 265.679, EFFECTIVE JANUARY 6, 1952, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT THERETO CONTAIN NO PROVISIONS PRECLUDING THE SUBSTITUTION OF LEAVE WITHOUT PAY FOR LEAVE WITH PAY FOR THE PURPOSE OF PERMITTING EMPLOYEES TO RECEIVE DISABILITY COMPENSATION OVER THE SAME PERIOD OF TIME. MOREOVER, IT APPEARS THAT AN EMPLOYEE WOULD NOT, UNDER THE STATED FACTS AND CIRCUMSTANCES, BE IN A POSITION TO MAKE AN ELECTION IN THE TRUE SENSE OF THAT WORD BETWEEN THE GRANTING OF LEAVE WITH PAY AND THE RECEIPT OF DISABILITY COMPENSATION UNTIL HIS CLAIM FOR SUCH COMPENSATION IS FINALLY ADJUDICATED BY THE EMPLOYEES COMPENSATION COMMISSION. SEE 24 COMP. GEN. 798, AND COURT CASES CITED THEREIN; ALSO, 24 COMP. GEN. 768.

ACCORDINGLY, IT IS THE VIEW OF THIS OFFICE THAT ADDITIONAL LEGISLATION WOULD NOT BE NECESSARY TO ACCOMPLISH THE SUBSTITUTION OF LEAVE WITHOUT PAY FOR LEAVE WITH PAY IN ORDER TO GIVE EFFECT TO AN EMPLOYEE'S ELECTION TO ACCEPT DISABILITY COMPENSATION IN LIEU OF THE GRANTING OF ANNUAL AND SICK LEAVE IN THE MANNER, AND UNDER THE FACTS AND CIRCUMSTANCES, INDICATED IN YOUR LETTER.

WITH RESPECT TO THE FURTHER QUESTION AS TO WHETHER THE RECORDS MAY BE CHANGED TO SHOW AN EMPLOYEE AS BEING ON LEAVE WITHOUT PAY FOR THE PERIOD HE PREVIOUSLY WAS PAID WHILE ON ANNUAL AND SICK LEAVE WITHOUT REQUIRING IMMEDIATE REFUND OF THE SALARY REPRESENTED THEREBY BUT WITH THE UNDERSTANDING THAT THE EMPLOYEE IS DEFINITELY INDEBTED FOR SUCH AMOUNT AND THAT IT WILL BE REPAID FROM THE DISABILITY COMPENSATION PAYMENTS DUE HIM, YOU MAY BE ADVISED THAT THIS OFFICE PERCEIVES NO LEGAL OBJECTION TO AN ARRANGEMENT OF THAT NATURE. HOWEVER, IT IS SUGGESTED THAT THE MATTER BE TAKEN UP WITH THE EMPLOYEES COMPENSATION COMMISSION TO ASCERTAIN WHETHER THAT AGENCY WILL APPROVE COMPENSATION PAYMENTS UNDER SUCH AN ARRANGEMENT.