B-118041, JAN 15, 1954

B-118041, JAN 15, 1954

PRECIS-UNAVAILABLE

MR. EARL F. SECHREST, AUTHORIZED CERTIFYING OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1953, SUBMITTING A VOUCHER IN THE AMOUNT OF $1,753.30, REPRESENTING A PROPOSED LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO AN EMPLOYEE UPON SEPARATION FROM THE SERVICE, AND REQUESTING AN ADVANCE DECISION UNDER THE PROVISIONS OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, UPON THE QUESTIONS AND FACTS HEREINAFTER RELATED.

THE RECORD SHOWS THAT APPLICATION WAS MADE BY THE EMPLOYEE FOR SICK (MATERNITY) LEAVE ON STANDARD FORM NO. 71, DATED MAY 14, 1953, DESIGNATED AS SICK LEAVE AND WAS COMPLETED EXCEPT AS TO NUMBER OF HOURS AND TERMINATION DATE AND HOUR. THE APPLICATION WAS SUPPORTED BY A CERTIFICATE OF THE MEDICAL OFFICER IN CHARGE, UNITED STATES NAVAL DISPENSARY, NAVY DEPARTMENT, SHOWING THAT, ON APRIL 28, 1953, THE APPLICANT WAS A PATIENT UNDER OBSTETRICAL CARE AT THE DISPENSARY, AND THAT THE ESTIMATED DATE OF CONFINEMENT WAS JULY 21, 1953.

YOU STATE THAT THE APPLICANT ENTERED SICK LEAVE STATUS ON MAY 18, 1953, TWO MONTHS AND THREE DAYS PRIOR TO EXPECTED DATE OF CONFINEMENT, AND WAS CARRIED IN THAT STATUS THROUGH OCTOBER 19, 1953. ON OCTOBER 20, SHE ENTERED UPON ANNUAL LEAVE - STILL PRESUMABLY IN A "MATERNITY LEAVE" STATUS - AND WAS CARRIED ON ANNUAL LEAVE, EXCEPT FOR SUCH SICK LEAVE AS MEANWHILE ACCRUED, THROUGH NOVEMBER 23, 1953, OR FOUR MONTHS AND TWO DAYS AFTER THE ESTIMATED DATE OF CONFINEMENT. SHE RESIGNED NOVEMBER 23, HAVING EXHAUSTED ALL SICK LEAVE AND CURRENT ACCRUED ANNUAL LEAVE. 704 HOURS OF ACCUMULATED ANNUAL LEAVE REMAINS TO HER CREDIT WHICH IS COVERED BY THE PRESENT VOUCHER AND A QUESTION HAS ARISEN AS TO WHETHER THE SICK LEAVE PREVIOUSLY GRANTED PROPERLY WAS PAYABLE.

YOU POINT OUT THAT THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS (ISSUED BY THE CIVIL SERVICE COMMISSION) PROVIDE THAT SICK LEAVE IN EXCESS OF THREE WORKDAYS "MUST BE SUPPORTED BY A MEDICAL CERTIFICATE, OR OTHER EVIDENCE ADMINISTRATIVELY ACCEPTABLE" (SECTION 30.403) AND DEFINES A MEDICAL CERTIFICATE AS "A WRITTEN STATEMENT SIGNED BY A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER, CERTIFYING TO THE PERIOD OF DISABILITY" (SECTION 30.101(E)). IT IS STATED THAT YOU MADE AN EFFORT TO SECURE A MEDICAL CERTIFICATE IN THE FORM PRESCRIBED BY THE REGULATIONS OR, IN LIEU THEREOF, FURTHER EVIDENCE OF DISABILITY. HOWEVER, THE FORMER EMPLOYEE'S SUPERVISOR, WHO IS ALSO THE COMMISSION'S PERSONNEL OFFICER (CHIEF, DIVISION OF PERSONNEL AND ADMINISTRATIVE SERVICES) STATED IN REPLY TO YOUR INQUIRY THAT, IN HIS OPINION, THE REQUIREMENTS OF THE COMMISSION'S POLICY AND THE CIVIL SERVICE COMMISSION'S REGULATIONS WITH RESPECT TO THE SICK LEAVE IN QUESTION HAD BEEN MET.

IN VIEW OF THE FOREGOING YOU ASK THE FOLLOWING SPECIFIC QUESTIONS:

"1. DOES THE ONLY CERTIFICATE OF RECORD IN THIS CASE, WHICH VERIFIES THE FACT OF PREGNACY BUT DOES NOT CERTIFY TO DISABILITY FOR ANY PERIOD OF TIME, SUPPORT THE GRANTING OF SICK LEAVE FOR THE PERIOD FOR WHICH IT WAS TAKEN?

"2. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, MUST A MEDICAL CERTIFICATE BE FURNISHED COVERING THE PERIOD OF SICK LEAVE BEFORE THE ACCOUNT FOR REMAINING ANNUAL LEAVE ACCRUAL CAN BE SETTLED?"

ADMINISTRATIVE ORDER NO. 5-B, ENTITLED MATERNITY LEAVE, ISSUED BY THE FEDERAL POWER COMMISSION ON APRIL 2, 1953, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"IT IS THE POLICY OF THE FEDERAL POWER COMMISSION TO GRANT MATERNITY LEAVE IN ALL CASES AND TO GIVE EVERY REASONABLE CONSIDERATION TO REQUESTS IN SUCH CASES.

"TIMELY REQUESTS FOR MATERNITY LEAVE SHALL BE MADE IN WRITING BY THE EMPLOYEE TO THE CHIEF OF THE DIVISION OF PERSONNEL AND ADMINISTRATIVE SERVICES THROUGH THE LINE OF AUTHORITY. THIS REQUEST SHALL BE ACCOMPANIED BY A CERTIFICATE FROM A LICENSED PHYSICIAN.

"SHOULD THE EMPLOYEE DESIRE AN EXTENSION OF MATERNITY LEAVE, APPLICATION SHOULD BE MADE AS SOON AS POSSIBLE THROUGH THE LINE OF AUTHORITY TO THE CHIEF OF THE DIVISION OF PERSONNEL AND ADMINISTRATIVE SERVICES. THE APPLICATION FOR EXTENSION SHALL BE ACCOMPANIED BY A CERTIFICATE FROM A LICENSED PHYSICIAN CERTIFYING THAT THE REQUESTED EXTENSION IS RECOMMENDED AS NECESSARY FOR THE HEALTH AND WELL-BEING OF EITHER MOTHER OR CHILD.

"EACH EMPLOYEE ENTERING ON MATERNITY LEAVE SHALL BE ENTITLED TO HER ACCRUED ANNUAL AND SICK LEAVE. AFTER EXHAUSTION OF ANNUAL AND SICK LEAVE, THE REMAINDER OF MATERNITY LEAVE SHALL BE CHARGED AS LEAVE WITHOUT PAY.

"THE CHIEF OF THE DIVISION OF PERSONNEL AND ADMINISTRATIVE SERVICES SHALL APPROVE THE SPECIFIC DATES OF MATERNITY LEAVE AFTER MAKING SUCH DECISIONS AND INVESTIGATIONS AS ARE NECESSARY AND AS ARE CONSISTENT WITH THE PROVISIONS OF THIS ORDER AND THE INSTRUCTIONS OF THE CHAIRMAN. REQUESTS FOR EXTENSION OF MATERNITY LEAVE SHALL BE SUBMITTED TO THE CHAIRMAN FOR HIS APPROVAL."

SECTION 30.401 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SICK LEAVE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SICK LEAVE SHALL BE GRANTED TO EMPLOYEES WHEN THEY ARE INCAPACITATED FOR THE PERFORMANCE OF THEIR DUTIES BY SICKNESS, INJURY, OR PREGNANCY AND CONFINEMENT ***."

OTHER PORTIONS OF THE REGULATIONS, PREVIOUSLY REFFERED TO (SECTIONS 30.101(E) AND 30.403), REQUIRE THAT THE DETERMINATION BE PREDICATED UPON MEDICAL CERTIFICATE OR OTHER ACCEPTABLE EVIDENCE.

IN THIS CASE THE MEDICAL CERTIFICATE STATED THAT THE EMPLOYEE WAS UNDER OBSTETRICAL CARE AND IT WAS ISSUED ABOUT A MONTH PRIOR TO THE DATE THE EMPLOYEE ENTERED ON SICK LEAVE. SHE WAS GRANTED SICK LEAVE BY THE CHIEF, DIVISION OF PERSONNEL AND ADMINISTRATIVE SERVICES, IN ACCORDANCE WITH ADMINISTRATIVE ORDER NO. 5-B, AND AS INDICATED ABOVE, HE WAS STATED THAT "THE LEAVE GRANTED MRS. MARKIEWICZ MEETS THE REQUIREMENTS OF THE COMMISSION'S POLICY AND THE CIVIL SERVICE REGULATIONS."

THIS OFFICE PROPERLY HAS NEVER ATTEMPTED TO PRESCRIBE A FORM OF "MEDICAL CERTIFICATE" FOR USE IN SUCH CASES NOR HAS ANY ATTEMPT BEEN MADE TO DEFINE THE EXPRESSION "OTHER EVIDENCE ADMINISTRATIVELY ACCEPTABLE." THESE, OF COURSE, ARE MATTERS FOR ADMINISTRATIVE CONSIDERATION AND DETERMINATION BEFORE OR AT THE TIME OF GRANTING LEAVE, AND SO LONG AS THERE HAS BEEN NO CLEAR ABUSE OF AUTHORITY IN GRANTING SUCH LEAVE, FOR REASONABLE PERIODS OF TIME CONSISTENT WITH GENERAL ADMINISTRATIVE PRACTICE, THERE WOULD BE NO SOUND BASIS FOR THIS OFFICE TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE ADMINISTRATIVE OFFICIALS HAVING KNOWLEDGE OF THE FACTS, PARTICULARLY, AS HERE, WHERE THE LEAVE WAS GRANTED AND TAKEN.

IN THE ABSENCE OF OTHER OBJECTION NO REASON APPEARS WHY THE PROPOSED LUMP -SUM PAYMENT FOR ANNUAL LEAVE SHOULD NOT BE MADE. THE VOUCHER IS RETURNED HEREWITH.