B-115022, MAY 20, 1953, 32 COMP. GEN. 526

B-115022, MAY 20, 1953, 32 COMP. GEN. 526

LEAVES OF ABSENCE - ACCRUAL - EMPLOYEE IN NON-PAY STATUS FOR PART OF PAY PERIOD - RETURN TO DUTY REQUIREMENT AN EMPLOYEE WHO IS IN A NONPAY STATUS FOR A PART OF A BIWEEKLY PAY PERIOD AND WHO DOES NOT RETURN TO DUTY FOR ANY REASON IS NOT ENTITLED, UNDER THE LEAVE CREDITING PROVISION OF SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 OR UNDER THE LEAVE ADJUSTMENT PROVISION OF SECTION 30.204 OF THE ANNUAL AND SICK LEAVE REGULATIONS, TO A CREDIT OR ADJUSTMENT OF LEAVE FOR SUCH PAY PERIOD. 32 COMP. GEN. 396, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, MAY 20, 1953:

REFERENCE IS MADE TO THE DEPUTY ADMINISTRATOR OF VETERANS AFFAIRS' LETTER OF APRIL 29, 1953, REQUESTING CLARIFICATION OF THE DECISION OF MARCH 17, 1953 B-114117, 32 COMP. GEN. 396, TO T. W. CHAPPELL, AUTHORIZED CERTIFYING OFFICER, OF THE OFFICE OF PRICE STABILIZATION, WITH RESPECT TO ITS APPLICATION TO A NONPAY STATUS UNDER A SET OF CIRCUMSTANCES HEREINAFTER RELATED.

IN THE REFERRED-TO DECISION IT WAS HELD:

* * * AS IT APPEARS FROM YOUR LETTER THAT THIS EMPLOYEE HAD ONLY 32 HOURS OR FOUR DAYS ANNUAL LEAVE UNUSED ON FEBRUARY 14, 1953, SHE WOULD NOT HAVE BEEN IN A PAY STATUS FOR A FULL BIWEEKLY PAY PERIOD IN USING THE FOUR DAYS LEAVE AND, THEREFORE, NOT ENTITLED TO BE CREDITED WITH ANY LEAVE AS ACCRUING DURING THE FOUR DAYS IN A PAY STATUS, THE MINIMUM CREDIT BEING FOR A "FULL BIWEEKLY PAY PERIOD.'

WHILE NOT MENTIONED IN YOUR SUBMISSION, IT WOULD APPEAR POSSIBLE THAT YOUR DOUBT MAY HAVE ARISEN BECAUSE OF SECTION 30.204 OF THE ANNUAL AND SICK LEAVE REGULATIONS. HOWEVER, IN THE VIEW OF THIS OFFICE THAT SECTION HAS NO APPLICATION TO THE PRESENT MATTER. * * *

THAT DECISION RELATED TO AN EMPLOYEE WHO HAD BEEN ISSUED A NOTICE OF REDUCTION IN FORCE AND WHO WAS IN A NONPAY STATUS FOR THE LATTER PART OF THE PAY PERIOD FROM WHICH NO RETURN TO DUTY WAS CONTEMPLATED.

SECTION 30.204 OF THE LEAVE REGULATION MENTIONED IN THAT PART OF THE DECISION JUST QUOTED READS 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.

THE CIRCUMSTANCES GIVING RISE TO THE NONPAY STATUS IN RESPECT OF WHICH CLARIFICATION OF THE RULE SET OUT IN THE DECISION, SUPRA, IS REQUESTED, ARE STATED IN THE LETTER AS FOLLOWS:

A FULL-TIME EMPLOYEE IS GRANTED ANNUAL LEAVE WHICH EXTENDS THROUGH THE FIRST DUTY DAY OF THE FOLLOWING BIWEEKLY PAY PERIOD: THE EMPLOYEE REQUESTS AND IS GRANTED LEAVE WITHOUT PAY FOR THE BALANCE OF THE PAY PERIOD; ON THE FIRST DUTY DAY OF THE PAY PERIOD FOLLOWING THE LEAVE WITHOUT PAY THE EMPLOYEE RESIGNS OR IS SEPARATED WITHOUT A RETURN TO DUTY; DURING THE LAST FULL BIWEEKLY PAY PERIOD THE EMPLOYEE IS IN A PAY STATUS FOR 8 HOURS OR ONE DAY AND LEAVE WITHOUT PAY FOR 72 HOURS OR 9 DAYS. * * *

THE VIEW IS EXPRESSED IN THE LETTER THAT THE ONLY FACTOR WHICH DISTINGUISHES AN EMPLOYEE COVERED BY THE FACTS RELATED IN THE ABOVE QUOTED SET OF CIRCUMSTANCES AND THE EMPLOYEE COVERED BY THE REFERRED-TO DECISION FROM ANY OTHER FULL-TIME EMPLOYEE ACCUMULATING HOURS OF ABSENCES IN A NONPAY STATUS, AT ONE TIME OR VARIOUS TIMES, TOTALING 72 HOURS, IS THE FACT OF NO RETURN TO A PAY STATUS, AND THE QUESTION SPECIFICALLY RAISED HERE IS STATED AS FOLLOWS:

IS IT THE INTENT OF THE RULE DECLARED IN DECISION B-114117 DATED MARCH 17, 1953, TO PRECLUDE THE CREDITING OF LEAVE FOR A BIWEEKLY PAY PERIOD WHICH INCLUDES A NONPAY STATUS FROM WHICH THERE IS NO RETURN TO DUTY ONLY WHEN THE EMPLOYEE IS IN A NONPAY STATUS PENDING SEPARATION BECAUSE OF REDUCTION IN FORCE?

SECTION 30.203 OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDES:

"LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A PAY STATUS.'

WITH RESPECT TO THE BASIS FOR ACCRUAL OF ANNUAL LEAVE, SECTION 203 (A) OF THE ANNUAL LEAVE ACT OF 1951, 65 STAT. 679, PROVIDES AS FOLLOWS:

OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIED SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY WHICH SHALL ACCRUE AS FOLLOWS---

(1) ONE-HALF DAY FOR EACH FULL BIWEEKLY PAY PERIOD IN THE CASE OF OFFICERS AND EMPLOYEES WITH LESS THAN THREE YEARS OF SERVICE,

(2) THREE-FOURTHS DAY FOR EACH FULL BIWEEKLY PAY PERIOD (EXCEPT THAT THE ACCRUAL FOR THE LAST FULL BIWEEKLY PAY PERIOD IN THE YEAR SHALL BE ONE AND ONE-FOURTH DAYS) IN THE CASE OF OFFICERS AND EMPLOYEES WITH THREE BUT LESS THAN FIFTEEN YEARS OF SERVICE, AND (3) ONE DAY FOR EACH FULL BIWEEKLY PAY PERIOD IN THE CASE OF OFFICERS AND EMPLOYEES WITH FIFTEEN YEARS OR MORE OF SERVICE. * * *

REDUCTION IN FORCE NOTICES DO NOT ALWAYS CONTEMPLATE SEPARATION AT THE END OF THE PAY PERIOD FOLLOWING EXPIRATION OF ACCRUED LEAVE, BUT UNDER CERTAIN CIRCUMSTANCES ARE EXTENDED FOR 90 DAYS, OR EVEN ONE YEAR, THE EMPLOYEE BEING GRANTED LEAVE WITHOUT PAY FOR SUCH EXTENDED PERIODS. IT IS VERY EVIDENT THAT SECTION 30.204 DID NOT CONTEMPLATE SUCH EXTENDED PERIODS OF LEAVE WITHOUT PAY AND AS SUCH EXTENDED PERIODS CANNOT BE DISTINGUISHED IN PRINCIPLE FROM SHORTER PERIODS OF LEAVE WITHOUT PAY NECESSARY TO COMPLETE A BIWEEKLY PAY PERIOD, THIS OFFICE IS OF THE OPINION, AND IT SO HOLDS, THAT SAID SECTION IS NOT FOR APPLICATION TO ANY NONPAY PERIOD FROM WHICH THE EMPLOYEE DOES NOT RETURN TO DUTY AS IN THE EXAMPLE IN YOUR SUBMISSION IRRESPECTIVE OF THE REASON FOR THE FAILURE TO RETURN TO DUTY. COMPARE 31 COMP. GEN. 581, QUESTION 6 AND ANSWER PAGE 586.