B-139805, SEPTEMBER 2, 1959, 39 COMP. GEN. 151

B-139805, SEPTEMBER 2, 1959, 39 COMP. GEN. 151

CIVILIAN PERSONNEL - SICK LEAVE - CREDIT AND USE AT BEGINNING OF PAY PERIOD A DEPARTMENTAL OR AGENCY POLICY WHICH PERMITS THE CREDITING AND USING OF SICK LEAVE AT THE BEGINNING OF THE FULL BIWEEKLY PAY PERIOD IN WHICH THE LEAVE IS ACCRUED IS NOT PROHIBITED UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061 ET SEQ.; HOWEVER, IN CASE EMPLOYEES ARE SEPARATED PRIOR TO COMPLETION OF THE FULL BIWEEKLY PAY PERIOD, ANY UNEARNED SICK LEAVE IS FOR REFUND IN ACCORDANCE WITH SECTION 30.206 OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS.

TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 2, 1959:

ON JUNE 3, 1959, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER YOUR DEPARTMENT MAY CONTINUE TO FOLLOW THE POLICY IT HAS ADOPTED OF PERMITTING EMPLOYEES--- INCLUDING NEW EMPLOYEES--- TO BE CREDITED WITH SICK LEAVE AT THE BEGINNING OF THE FULL BIWEEKLY PAY PERIOD, AND TO USE SUCH SICK LEAVE DURING THE PAY PERIOD. THE QUESTION HAS ARISEN BECAUSE OF OUR UNPUBLISHED DECISION OF JUNE 26, 1958, B 136235.

BASED UPON THE FACTS AND ADMINISTRATIVE ACTION THERE INVOLVED, AND UNDER SECTION 204 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, 5 U.S.C. 2063 (A), WE HELD IN B-136235 THAT SINCE THE STATUTE PROVIDES OFFICERS AND EMPLOYEES "SHALL BE ENTITLED TO SICK LEAVE WITH PAY, WHICH SHALL ACCRUE ON THE BASIS OF ONE-HALF DAY FOR EACH FULL BIWEEKLY PAY PERIOD," A FULL BIWEEKLY PAY PERIOD MUST BE COMPLETED BEFORE THE ACCRUAL MAY BE CREDITED AND USED BY THE EMPLOYEE.

THE ADMINISTRATIVE ASSISTANT SECRETARY POINTS OUT THAT "IT DOES NOT APPEAR FROM THE DECISION (B-136235, SUPRA) THAT THE AGENCY THERE INVOLVED HAD ADOPTED A POLICY OF CREDITING SICK LEAVE IN ADVANCE.' IN THAT REGARD, THE RECORD IN THAT CASE SHOWS THE SICK LEAVE IN QUESTION WAS NOT CREDITED TO THE EMPLOYEE'S ACCOUNT UNTIL COMPLETION OF THE FULL 80-HOUR BIWEEKLY PAY PERIOD. WE HELD, IN EFFECT, THAT SUCH ACTION WAS CONSISTENT WITH SECTION 204 (A) OF THE LEAVE ACT. THE CONCLUSION REACHED THEREIN WAS ON THE FACTUAL SITUATION THERE PRESENT AND WAS NOT INTENDED TO ANSWER THE QUESTION NOW BEFORE US.

WE UNDERSTAND THAT THE ADMINISTRATIVE REGULATIONS, DEPARTMENT OF AGRICULTURE, 7 AR 501B, ROVIDE:

ALL FULL TIME EMPLOYEES--- PERMANENT AND TEMPORARY--- EXCEPT THOSE EXEMPT EMPLOYEES LISTED IN 7 AR 499D WILL ACCRUE SICK LEAVE FROM THE TIME OF EMPLOYMENT AT THE RATE OF 4 HOURS FOR EACH FULL PAY PERIOD. CREDIT SHALL BE GIVEN AT THE BEGINNING OF EACH PAY PERIOD.

6 GAO 9070.40, QUOTED IN PART IN YOUR ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER, PROVIDES:

9070.40 LEAVE ACCRUALS. IN AN AGENCY WHERE THE LEAVE POLICY PRECLUDES THE USE OF "LEAVE ACCRUED DURING THIS REPORTING PERIOD" UNTIL EARNED, THE LEAVE ACCRUAL FOR THE PERIOD IS NOT POSTED ON STOCK FORM 1130 OR 1137 UNTIL THE CLOSE OF THE PAY PERIOD. IN AN AGENCY WHERE THE LEAVE POLICY PERMITS THE GRANTING OF LEAVE BEFORE IT IS EARNED, THE LEAVE ACCRUAL IS POSTED AT THE BEGINNING OF THE PAY PERIOD, THUS MAKING AVAILABLE AT ANY TIME DURING THE PERIOD THE BALANCE BROUGHT FORWARD, PLUS LEAVE ACCRUED DURING THE PERIOD. IF THE LEAVE POLICY PERMITS CREDITING EMPLOYEES WITH LEAVE FOR ALL OF THE LEAVE YEAR, SUCH LEAVE IS ADDED (AT THE BEGINNING OF THE LEAVE YEAR) TO ANY LEAVE BALANCES BROUGHT FORWARD FROM THE PRIOR LEAVE YEAR, THUS MAKING THE TOTAL AVAILABLE AT ANY TIME DURING THE YEAR.

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT "WE BELIEVE THE PRACTICE OF CREDITING AND GRANTING SICK LEAVE PRIOR TO ACCRUAL HAS BEEN CONSIDERED PROPER SINCE 1936," CITING 15 COMP. GEN. 1058. THAT DECISION HELD AT PAGE 1063 (ANSWER TO QUESTION 6) THAT SICK LEAVE ACCRUING DURING ANY MONTH UNDER THE 1936 SICK LEAVE STATUTE, 5 U.S.C. 30G, WAS AVAILABLE TO THE EMPLOYEE AT ANY TIME ON OR AFTER THE FIRST OF THE MONTH IN WHICH THE LEAVE ACCRUED. WHILE THE LANGUAGE OF THE CURRENT SICK LEAVE STATUTE IS SOMEWHAT DIFFERENT FROM THAT APPEARING IN THE 1936 ACT WE DO NOT CONSIDER THAT IT NEED BE REGARDED AS PROHIBITING YOUR DEPARTMENT FROM CONTINUING THE POLICY OF PERMITTING EMPLOYEES TO BE CREDITED WITH SICK LEAVE AT THE BEGINNING OF THE FULL BIWEEKLY PAY PERIOD AND ITS USE DURING THE SAME PAY PERIOD. THE EVENT OF SEPARATION PRIOR TO COMPLETION OF THE FULL BIWEEKLY PAY PERIOD SICK LEAVE CREDITED FOR THAT PERIOD AND USED WOULD BE FOR RECOVERING IN ACCORDANCE WITH SECTION 30.206 OF THE LEAVE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION.

CONCERNING THE LAST SENTENCE IN 6 GAO 9070.40, ABOVE, THAT PROVISION RELATES ONLY TO ANNUAL LEAVE, WHICH LEAVE UNDER SECTION 203 (H) OF THE 1951 LEAVE ACT, 5 U.S.C. 2063 (H), MAY BE CREDITED FOR THE ENTIRE LEAVE YEAR AS OF THE BEGINNING OF THE LEAVE YEAR. ADVANCE SICK LEAVE MAY BE ALLOWED, OF COURSE, IN ACCORDANCE WITH SECTION 204 (C) OF THE STATUTE, 5 U.S.C. 2063 (C).