B-113100, DECEMBER 23, 1952, 32 COMP. GEN. 298

B-113100, DECEMBER 23, 1952, 32 COMP. GEN. 298

LEAVES OF ABSENCE - POSTAL SERVICE EMPLOYEES - OVERDRAWN LEAVE - REFUNDS - ANNUAL AND SICK LEAVE ACT OF 1951 THERE IS NO PROVISION IN THE ANNUAL AND SICK LEAVE ACT OF 1951 TO FORGIVE EMPLOYEES (INCLUDING POSTAL EMPLOYEES) WHO ARE CREDITED WITH AND REQUIRED TO TAKE ANNUAL LEAVE IN ADVANCE OF ITS ACCRUAL AND WHO ARE PREVENTED FROM EARNING THE EQUIVALENT OF THE LEAVE TAKEN FROM MAKING REFUNDS FOR ANNUAL LEAVE TAKEN IN EXCESS OF THAT EARNED AND, IN THE ABSENCE OF A LEAVE REGULATION BY THE CIVIL SERVICE COMMISSION PROVIDING THAT SUCH EMPLOYEES MAY DEDUCT OVERDRAWN LEAVE FROM ACCRUALS IN THE FOLLOWING YEAR, COLLECTION IS REQUIRED TO BE MADE AT THE END OF THE LEAVE YEAR FOR LEAVE USED BUT UNEARNED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, DECEMBER 23, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1952, REQUESTING A DECISION AS TO WHETHER UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, EFFECTIVE JANUARY 6, 1952, 65 STAT. 679, 681, THE POST OFFICE DEPARTMENT MAY FOREGO REQUIRING EMPLOYEES TO MAKE REFUND FOR ANNUAL LEAVE GRANTED TO THEM DURING THE LEAVE YEAR IN ACCORDANCE WITH SECTION 203 (H) OF THE ACT WHEN, BECAUSE OF CERTAIN CIRCUMSTANCES, THE EMPLOYEES ARE PREVENTED FROM EARNING THE EQUIVALENT OF THE ANNUAL LEAVE TAKEN.

YOU REFER TO THE FACT THAT, PRIOR TO THE ENACTMENT OF PUBLIC LAW 233 -- WHICH BROUGHT THE POSTAL SERVICE UNDER THE SAME LEAVE SYSTEM AS VARIOUS OTHER DEPARTMENTS AND AGENCIES--- IT HAD BEEN THE ADMINISTRATIVE PRACTICE TO CREDIT AND GRANT LEAVE TO EMPLOYEES AT THE BEGINNING OF THE FISCAL YEAR FOR THE LEAVE THAT WOULD ACCRUE FOR THAT PERIOD (LEAVE THEN BEING UPON A FISCAL YEAR BASIS) WHERE IT WAS ANTICIPATED THAT THE EMPLOYEES WOULD REMAIN IN THE SERVICE DURING SUCH PERIOD. IN THE EVENT EMPLOYEES SUBSEQUENTLY WERE ABSENT WITHOUT PAY, OR WERE SEPARATED FROM THE SERVICE PRIOR TO THE END OF THE FISCAL YEAR, NO REFUND FOR OVERDRAWN LEAVE WAS REQUIRED.

IT IS STATED THAT, BECAUSE OF CONSTANT WORK LOAD, EMPLOYEES IN THE POSTAL SERVICE ARE SCHEDULED IN ADVANCE TO TAKE ANNUAL LEAVE, EXCEPT IN THE MONTH OF DECEMBER WHEN THEY ARE EXCUSED ONLY FOR EMERGENCIES. FURTHER, IT IS STATED THAT IT IS CONSIDERED A MANIFEST INJUSTICE TO REQUIRE AN EMPLOYEE TO USE HIS ANNUAL LEAVE FOR THE ENTIRE CALENDAR YEAR AND THEN REQUIRE HIM TO MAKE REFUND AT THE END OF THE YEAR FOR A PORTION OF THE LEAVE WHICH HE DID NOT EARN BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL. IN THAT CONNECTION, THE FOLLOWING EXAMPLE IS PRESENTED:

A POST OFFICE CLERK WHO EARNS LEAVE ON THE BASIS OF 26 DAYS A YEAR WAS REQUIRED IN MARCH AND APRIL OF 1952 TO TAKE ALL ANNUAL LEAVE WHICH HE WOULD NORMALLY EARN DURING THE LEAVE YEAR ENDING DECEMBER 31, 1952. WAS SCHEDULED TO TAKE THE LEAVE IN ADVANCE BECAUSE, OWING TO CIRCUMSTANCES PECULIAR TO THE POSTAL SERVICE, ONLY A SMALL PERCENTAGE OF EMPLOYEES MAY BE EXCUSED AT ONE TIME.

HE BECAME ILL AND WAS IN A NONPAY STATUS FOR THE PERIOD OCTOBER 1 TO NOVEMBER 15, 1952, INCLUSIVE, OR THREE FULL PAY PERIODS.

THE QUESTION IS PRESENTED SPECIFICALLY IN YOUR LETTER AS FOLLOWS:

IN VIEW OF THE ADMINISTRATIVE POLICY IN THE POSTAL FIELD SERVICE PRIOR TO THE ENACTMENT OF PUBLIC LAW 233, THE FACT THAT PUBLIC LAW 233 DOES NOT SPECIFICALLY REQUIRE A REFUND IN SUCH CASES, AND THE OBVIOUS INEQUITY WHICH RESULTS FROM THE NECESSITY OF SCHEDULING EMPLOYEES TO TAKE ANNUAL LEAVE BEFORE IT IS EARNED, MAY THE DEPARTMENT FOREGO MAKING AN ADJUSTMENT FOR COLLECTION OF LEAVE TAKEN BUT UNEARNED AT THE END OF THE LEAVE YEAR ON DECEMBER 31, 1952?

SECTION 30.204 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDES AS FOLLOWS:

NONPAY STATUS. WHENEVER A FULL-TIME EMPLOYEE'S ABSENCE IN A NONPAY STATUS TOTALS THE EQUIVALENT OF THE BASE PAY HOURS IN ONE PAY PERIOD, THE CREDITS FOR LEAVE SHALL BE REDUCED IN THE AMOUNT AS EARNED IN A PAY PERIOD.

SINCE THE EMPLOYEE IN THE EXAMPLE PRESENTED WAS ABSENT IN A NONPAY STATUS FOR THREE FULL PAY PERIODS HE WOULD NOT, IN ACCORDANCE WITH THE ABOVE REGULATION, BE REGARDED AS HAVING EARNED LEAVE FOR SUCH PERIODS; CONSEQUENTLY, HE WOULD NOT BE ENTITLED TO THE FULL 26 DAYS' ANNUAL LEAVE FOR THE LEAVE YEAR PERTAINING TO THE POSTAL SERVICE ENDING DECEMBER 31, 1952, WHICH PREVIOUSLY HAD BEEN GRANTED TO HIM IN MARCH AND APRIL OF 1952.

IT IS NOTED THAT THE POSTAL MANUAL FOR 1952, CHAPTER II, ARTICLE 99, ORIGINALLY PROVIDED FOR THE DEDUCTION OF OVERDRAWN ANNUAL LEAVE FROM ANNUAL LEAVE ACCRUALS FOR THE FOLLOWING YEAR. HOWEVER, BY CHANGE NO. 68, APPEARING IN THE POSTAL BULLETIN OF OCTOBER 21, 1952, THAT PROVISION WAS CHANGED TO PROVIDE FOR COLLECTION FROM EMPLOYEES OF ANY ANNUAL LEAVE TAKEN IN EXCESS OF THAT EARNED FOR THE YEAR.

WHATEVER MAY HAVE BEEN THE ADMINISTRATIVE PRACTICE IN THE POSTAL FIELD SERVICE PRIOR TO THE ENACTMENT OF PUBLIC LAW 233, THE AUTHORITY FOR ANY PRESENT PRACTICE MUST, OF COURSE, BE FOUND IN THAT LAW OR IN THE RULES AND REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION THEREUNDER.

WITH RESPECT TO THE REFERENCE IN YOUR LETTER TO THE FACT THAT THERE IS NO SPECIFIC REQUIREMENT UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 FOR REFUND FOR ANNUAL LEAVE GRANTED IN EXCESS OF THAT SUBSEQUENTLY EARNED, ATTENTION IS INVITED TO THE FOLLOWING STATEMENT ON PAGE 7 OF S. REP. NO. 546, 82D CONGRESS, TO ACCOMPANY S. 832, A BILL SUBSTANTIALLY SIMILAR TO THAT FINALLY ENACTED AS THE ANNUAL AND SICK LEAVE ACT OF 1951:

PARAGRAPH (H) PROVIDES THAT AN EMPLOYEE MAY USE AT ANY TIME DURING THE CALENDAR YEAR THE FULL AMOUNT OF LEAVE THAT WILL ACCRUE TO HIM DURING THE YEAR. HOWEVER, IN THE EVENT HE LEAVES THE SERVICE BEFORE SUCH LEAVE HAS BEEN ACTUALLY EARNED, A REFUND WILL BE REQUIRED FOR THE UNLIQUIDATED AMOUNT.

IN THE CONSIDERATION OF THAT PARTICULAR BILL ON THE FLOOR OF THE SENATE A POINT WAS RAISED ABOUT THAT STATEMENT IN VIEW OF THE ABSENCE OF ANY PROVISION IN THE BILL TO THAT EFFECT. IN EXPLANATION THEREOF, SENATOR JOHNSTON, CHAIRMAN OF THE SENATE POST OFFICE AND CIVIL SERVICE COMMITTEE WHICH PREPARED THE REPORT MADE THE FOLLOWING COMMENT:

MR. PRESIDENT, I AM VERY GLAD THE SENATOR FROM SOUTH DAKOTA HAS BROUGHT UP THAT POINT. IT WAS THE INTENTION OF THE COMMITTEE IN DRAFTING THE BILL THAT IN CASE ANYONE SHOULD DRAW MORE LEAVE PAY THAN HE WAS ENTITLED TO UP TO THE TIME OF HIS DISCHARGE OR RETIREMENT, HE SHOULD PAY BACK TO THE GOVERNMENT ANY AMOUNT OF LEAVE PAY HE HAD OVERDRAWN. * * *

SEE PAGE 8461 OF THE CONGRESSIONAL RECORD OF JULY 14, 1951. TO THE SAME GENERAL EFFECT SEE SECTION 20.206 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION.

WHILE THE FOREGOING APPEARS TO BE CONCERNED WITH SEPARATIONS FROM THE SERVICE, IT SUPPORTS THE CONCLUSION THERE IS NO AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 ITSELF TO FORGIVE EMPLOYEES, UNDER THE CIRCUMSTANCES RELATED IN YOUR LETTER, FROM MAKING REFUNDS FOR ANNUAL LEAVE IN EXCESS OF THAT EARNED. ALSO, IN OFFICE DECISION OF MAY 8, 1952, 31 COMP. GEN. 581, THE QUESTION WAS PRESENTED (1 (C) ( AS TO WHETHER UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, OVERDRAWN ANNUAL LEAVE AT THE END OF THE LAST PAY PERIOD IN THE CALENDAR YEAR SHOULD BE LIQUIDATED AS THERETOFORE OR LIQUIDATED AGAINST FUTURE ANNUAL LEAVE EARNINGS. IN ANSWER TO THE QUESTION IT WAS STATED THAT SUCH OVERDRAWN LEAVE SHOULD BE LIQUIDATED AT THE END OF THE LEAVE YEAR RATHER THAN THE END OF THE CALENDAR YEAR.

ACCORDINGLY, YOU ARE ADVISED THAT, IN THE ABSENCE OF A LEAVE REGULATION BY THE CIVIL SERVICE COMMISSION PROVIDING THAT, IN THE CASE OF EMPLOYEES WHO ARE REQUIRED TO TAKE ANNUAL LEAVE IN ADVANCE OF ITS ACCRUAL, DEDUCTION OF OVERDRAWN ANNUAL LEAVE MAY BE MADE FROM ACCRUALS IN THE FOLLOWING YEAR, COLLECTION MUST BE MADE AT THE END OF THE LEAVE YEAR ON ACCOUNT OF LEAVE TAKEN BUT UNEARNED.