B-24647, APRIL 2, 1942, 21 COMP. GEN. 901

B-24647, APRIL 2, 1942, 21 COMP. GEN. 901

HOLIDAYS - LEAVES OF ABSENCE FEBRUARY 23, 1942, THE MONDAY FOLLOWING GEORGE WASHINGTON'S BIRTHDAY, WHICH FELL ON SUNDAY, WAS A HOLIDAY IN THE DISTRICT OF COLUMBIA UNDER THE ACT OF MARCH 3, 1901, AS AMENDED, AND EXECUTIVE ORDER NO. 1076 OF MAY 22, 1909, WITHIN THE MEANING OF THE ACT OF MARCH 2, 1940, EXCLUDING HOLIDAYS FROM THE DAYS TO BE CHARGED AGAINST ANNUAL AND SICK LEAVE PROVIDED FOR IN THE LEAVE ACTS OF MARCH 14, 1936. ANNUAL OR SICK LEAVE MAY NOT BE CHARGED AGAINST AN EMPLOYEE FOR ABSENCE ON A HOLIDAY ON WHICH HE WOULD OTHERWISE BE REQUIRED TO WORK UNDER A GENERAL ADMINISTRATIVE ORDER, BUT IT IS WITHIN ADMINISTRATIVE DISCRETION TO EXCUSE AN INDIVIDUAL EMPLOYE FROM WORKING EITHER WITH OR WITHOUT PAY--- REGARDLESS OF THE BASIS OF COMPENSATION OR WHETHER THE EMPLOYEE IS SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938--- ON SUCH A HOLIDAY, OR, IF AN EMPLOYEE SHOULD ARBITRARILY ABSENT HIMSELF FROM WORK ON THAT DAY, TO DEDUCT ONE DAY'S PAY AS A DISCIPLINARY MEASURE FOR FAILURE TO WORK. EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE IN AN ANNUAL OR SICK LEAVE STATUS FOR A PERIOD INCLUDING MONDAY, FEBRUARY 23, 1942--- A HOLIDAY IN THE DISTRICT OF COLUMBIA--- AND WHO DID NOT RECEIVE NOTICE OF THE ADMINISTRATIVE ORDER THAT SUCH HOLIDAY WOULD BE A WORK DAY SHOULD BE PAID FOR THAT DAY, WITHOUT CHARGE TO LEAVE OF ANY KIND. EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE OFFICIALLY NOTIFIED TO WORK ON MONDAY, FEBRUARY 23, 1942--- A HOLIDAY IN THE DISTRICT OF COLUMBIA--- BUT WHO WERE ABSENT ON THAT DAY FOR SOME PERSONAL REASON SHOULD NOT BE CARRIED IN A LEAVE WITHOUT PAY STATUS FOR THAT DAY, BUT WHETHER IN A PARTICULAR CASE THERE SHOULD BE DEDUCTED ONE DAY'S PAY FOR FAILURE TO WORK IS FOR ADMINISTRATIVE DETERMINATION. EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE OFFICIALLY NOTIFIED TO WORK ON MONDAY, FEBRUARY 23, 1942--- A HOLIDAY IN THE DISTRICT OF COLUMBIA--- BUT WHO WERE ILL ON SUCH HOLIDAY AND REPORTED SUCH FACT AS SOON AS POSSIBLE SHOULD BE EXCUSED FROM WORKING AND PAID THEIR REGULAR COMPENSATION FOR THAT DAY, WITHOUT CHARGE TO LEAVE OF ANY KIND, IF IT BE ADMINISTRATIVELY DETERMINED THAT THEY WERE ACTUALLY NOT ABLE TO WORK ON THAT DAY.

COMPTROLLER GENERAL WARREN TO THE PUBLIC PRINTER, APRIL 2, 1942:

I HAVE YOUR LETTER OF MARCH 13, 1942, AS FOLLOWS:

OWING TO THE TREMENDOUS DEMANDS BEING MADE UPON THE GOVERNMENT PRINTING OFFICE AT THE PRESENT TIME BY VIRTUE OF THE EXISTING NATIONAL EMERGENCY, IT WAS ADMINISTRATIVELY DECIDED TO REQUIRE ALL EMPLOYEES OF THE OFFICE TO WORK ON A LEGALLY RECOGNIZED HOLIDAY, MONDAY, FEBRUARY 23, 1942, WHICH, AS YOU KNOW, WAS THE GENERAL POLICY THROUGHOUT THE GOVERNMENT SERVICE ON THAT DAY.

SUNDAY, FEBRUARY 22, 1942, WAS THE ANNIVERSARY OF THE BIRTH OF GEORGE WASHINGTON, AND THE FOLLOWING MONDAY, FEBRUARY 23, 1942, WAS A HOLIDAY IN ACCORDANCE WITH EXECUTIVE ORDER NO. 1076 OF MAY 22, 1909, WHICH READS:

"IT IS HEREBY ORDERED THAT ALL OFFICES OF THE GOVERNMENT, ARSENALS, NAVY YARDS, AND STATIONS, AND OTHER GOVERNMENT ESTABLISHMENTS SHALL, WHEN THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE THIRTIETH DAY OF MAY, THE FOURTH DAY OF JULY AND THE TWENTY-FIFTH DAY OF DECEMBER, FALL ON THE FIRST DAY OF THE WEEK, COMMONLY CALLED SUNDAY, BE CLOSED TO PUBLIC BUSINESS ON THE FOLLOWING MONDAY AND THAT ALL EMPLOYEES IN THE PUBLIC SERVICE, WHEREVER EMPLOYED, WHO WOULD BE EXCUSED FROM WORK ON THE ABOVE- NAMED DAYS BE EXCUSED ON THE FOLLOWING MONDAY WHEN SAID DAYS FALL ON THE FIRST DAY OF THE WEEK, COMMONLY CALLED SUNDAY, EXCEPTING THAT WHERE A STATE LAW FIXES FOR A HOLIDAY ANOTHER DAY THAN THE MONDAY FOLLOWING SUCH LEGAL HOLIDAY, THE GOVERNMENT OFFICES AND OTHER GOVERNMENT ESTABLISHMENTS SITUATED IN SUCH STATES SHALL CLOSE AND EMPLOYEES IN THE PUBLIC SERVICE SHALL BE EXCUSED ON THAT DAY WHICH IS IN CONFORMITY TO STATE LAW.'

FURTHER, THE DISTRICT OF COLUMBIA CODE, TITLE 28, PARAGRAPH 616, READS IN PART AS FOLLOWS: ,WHENEVER ANY DAY SET APART AS A LEGAL HOLIDAY SHALL FALL ON SUNDAY, THEN AND IN SUCH CASE THE NEXT SUCCEEDING DAY SHALL BE A HOLIDAY * * *.'

THE WORD "HOLIDAY," AS DEFINED IN WEBSTER'S UNABRIDGED NEW INTERNATIONAL DICTIONARY, IS "A TIME OR PERIOD OF RECREATION OR EXEMPTION FROM WORK.'

THE AMENDMENT TO THE ANNUAL AND SICK LEAVE LAWS ( PUBLIC, NO. 419, 76TH CONG.) WITH REGARD TO THE METHOD OF CHARGING ANNUAL AND SICK LEAVE, READS AS FOLLOWS:

"THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.'

IN VIEW OF THE FOREGOING, THE NOTICE TO THE EMPLOYEES CONTAINED THE STATEMENT THAT ABSENCE ON THAT DAY WOULD NECESSARILY BE CHARGED TO LEAVE WITHOUT PAY, AS ANNUAL OR SICK LEAVE COULD NOT BE GRANTED FOR A HOLIDAY.

ALTHOUGH THE EMPLOYEES RECEIVED NOTICE THAT FEBRUARY 23 WAS A WORKDAY, SOME WERE ABSENT ON THAT DAY BECAUSE OF ILLNESS OR FOR OTHER PERSONAL REASONS, AND THE FOLLOWING QUESTIONS HAVE ARISEN IN REGARD TO PAY AND LEAVE FOR THAT DAY:

1. WHAT ACTION SHOULD BE TAKEN IN THE CASE OF AN EMPLOYEE WHO WAS ON APPROVED ANNUAL LEAVE BEGINNING PRIOR TO FEBRUARY 18, 1942, THE DATE OF THE NOTICE TO WORK ON FEBRUARY 23, AND WHO DID NOT RECEIVE NOTICE TO WORK ON THAT DAY, ASSUMING THAT HIS APPLICATION FOR ANNUAL LEAVE COVERED A PERIOD INCLUSIVE OF MONDAY, FEBRUARY 23? SHOULD HE BE CHARGED ANNUAL LEAVE, LEAVE WITHOUT PAY, OR PAID FOR THE HOLIDAY WITHOUT CHARGE TO LEAVE OF ANY KIND?

2. WHAT ACTION SHOULD BE TAKEN IN THE CASE OF AN EMPLOYEE WHO WAS ON EXTENDED SICK LEAVE BEGINNING PRIOR TO FEBRUARY 18, 1942, THE DATE OF THE NOTICE TO WORK ON FEBRUARY 23, AND WHO DID NOT RECEIVE NOTICE TO WORK ON THAT DAY, ASSUMING THAT HIS APPLICATION FOR SICK LEAVE COVERED A PERIOD INCLUSIVE OF MONDAY, FEBRUARY 23? SHOULD HE BE CHARGED SICK LEAVE, LEAVE WITHOUT PAY, OR BE PAID FOR THE HOLIDAY WITHOUT CHARGE TO LEAVE OF ANY KIND?

UNDER SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, IT IS PROVIDED THAT LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THE REGULATIONS IS EXHAUSTED, WITH THE EXCEPTION OF (A) EMPLOYEES INJURED IN LINE OF DUTY, AND (B) EMPLOYEES WHO ARE ORDERED TO ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY.

3. WOULD IT BE PROPER, THEREFORE, TO CARRY IN A LEAVE-WITHOUT-PAY STATUS AN EMPLOYEE WHO HAD BEEN OFFICIALLY NOTIFIED TO WORK ON FEBRUARY 23 BUT WHO WAS ABSENT ON THAT DAY FOR SOME PERSONAL REASON, (A) ALTHOUGH HE HAD SUFFICIENT EARNED ANNUAL LEAVE TO HIS CREDIT, AND (B) IN THE EVENT HE HAD NO ANNUAL LEAVE TO HIS CREDIT?

4. WOULD IT BE PROPER, THEREFORE, TO CARRY IN A LEAVE-WITHOUT-PAY STATUS AN EMPLOYEE WHO HAD BEEN OFFICIALLY NOTIFIED TO WORK ON FEBRUARY 23 BUT WHO WAS ILL ON THAT DAY, AND REPORTED SUCH ILLNESS AS SOON AS POSSIBLE, (A) ALTHOUGH HE HAD SUFFICIENT SICK AND ANNUAL LEAVE TO HIS CREDIT, AND (B) IN THE EVENT HE HAD NO SICK OR ANNUAL LEAVE TO HIS CREDIT?

THE FOREGOING QUESTIONS APPLY TO EMPLOYEES PAID ON AN ANNUAL BASIS. WITH REGARD TO EMPLOYEES PAID ON THE HOURLY BASIS, PUBLIC RESOLUTION NO. 127, DATED JUNE 29, 1938, PROVIDES AS FOLLOWS:

"THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE- WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR THE OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

"SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 ( U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

IN VIEW OF THIS RESOLUTION, AND AS THE EMPLOYEES PAID ON THE HOURLY BASIS WERE NOT RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, YOUR DECISION WITH REGARD TO QUESTIONS 1 TO 4, INCLUSIVE, IS ALSO DESIRED.

IN ORDER TO PROVIDE FOR PROPER ADJUSTMENTS IN PAY OF THE EMPLOYEES INVOLVED, AN EARLY DECISION WILL BE APPRECIATED.

SECTION 28-616, DISTRICT OF COLUMBIA CODE, 1940, FROM WHICH YOU QUOTE IN YOUR LETTER IS TAKEN FROM SECTION 1389 OF THE ACT OF MARCH 3, 1901, 31 STAT. 1404, SUPERSEDING THE ACT OF DECEMBER 20, 1881, 22 STAT. 1, WHICH PROVIDED THAT WHEN A NATIONAL HOLIDAY FALLS ON SUNDAY THE FOLLOWING DAY--- MONDAY--- SHOULD BE A HOLIDAY IN THE DISTRICT OF COLUMBIA SO FAR AS NEGOTIABLE PAPER WAS CONCERNED, AND FROM SECTION 1298 OF THE ACT OF JUNE 30, 1902, 32 STAT. 543, WHICH AMENDED SECTION 1389 OF THE ACT OF 1901, SUPRA, TO ESTABLISH MONDAY FOLLOWING A HOLIDAY FALLING ON SUNDAY AS A HOLIDAY IN THE DISTRICT OF COLUMBIA "FOR ALL PURPOSES.' BASED ON THESE STATUTES, AS WELL AS THE EXECUTIVE ORDER OF MAY 22, 1909, QUOTED IN YOUR LETTER, IT MUST BE CONCLUDED THAT MONDAY, FEBRUARY 23, 1942, FOLLOWING FEBRUARY 22, 1942, GEORGE WASHINGTON'S BIRTHDAY, WHICH FELL ON SUNDAY, WAS A HOLIDAY FOR EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WITHIN THE MEANING OF THE ACT OF MARCH 2, 1940, 54 STAT. 38 ( PUBLIC, NO. 419, 76TH CONGRESS) QUOTED IN YOUR LETTER, SUPRA.

UNDER THE PLAIN PROVISIONS OF THE SAID ACT OF MARCH 2, 1940, NEITHER ANNUAL NOR SICK LEAVE OF ABSENCE WITH PAY MAY BE GRANTED OR CHARGED ANY CLASS OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE FOR ABSENCE ON A HOLIDAY, INCLUDING FEBRUARY 23, 1942, WHETHER OR NOT THE EMPLOYEES WHO WERE NOT OTHERWISE ON AUTHORIZED LEAVE ON SAID DAY WERE REQUIRED TO WORK ON THE HOLIDAY BY ADMINISTRATIVE ORDER. THE STATUTE EXPRESSLY EXCLUDES "HOLIDAYS" FROM "DAYS" ON WHICH ANNUAL AND SICK LEAVE OF ABSENCE PAY MAY BE CHARGED.

THE ANNUAL AND SICK LEAVE REGULATIONS ( EXECUTIVE ORDERS NOS. 8384 AND 8385, DATED MARCH 29, 1940), INCLUDING SECTION 9 OF THE FORMER PROVIDING THAT LEAVE WITHOUT PAY MAY NOT BE GRANTED UNTIL ANNUAL LEAVE HAS BEEN EXHAUSTED, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, WERE PROMULGATED IN THE LIGHT OF THE ACT OF MARCH 2, 1940, SUPRA, EXCLUDING HOLIDAYS FROM THE DAYS TO BE CHARGED AGAINST LEAVE. ACCORDINGLY, SAID SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, TO WHICH YOU REFER, HAS NO APPLICATION TO THE PRESENT SITUATION. AUTHORIZED ABSENCE ON A HOLIDAY IS NOT TO BE REGARDED AS LEAVE WITHOUT PAY. SUCH REGULATION DOES NOT PRECLUDE AN ADMINISTRATIVE OFFICE FROM EXCUSING AN INDIVIDUAL EMPLOYEE FROM WORKING, EITHER WITH OR WITHOUT PAY, ON A NATIONAL HOLIDAY ON WHICH THE EMPLOYEES GENERALLY ARE REQUIRED TO WORK BY ADMINISTRATIVE ORDER. THAT IS TO SAY, AS THE ORDER TO WORK ON FEBRUARY 23, 1942, WAS AN ADMINISTRATIVE ORDER ISSUED BY THE PUBLIC PRINTER, IT IS WITHIN HIS DISCRETION TO MAKE EXCEPTIONS IN INDIVIDUAL CASES, DUE TO THE EXIGENCIES OF THE SITUATION IN EACH CASE. THIS IS TRUE WHETHER THE EMPLOYEE IS PAID ON A PER ANNUM, PER DIEM, OR ANY OTHER BASIS, AND WHETHER OR NOT THE EMPLOYEE IS SUBJECT TO THE HOLIDAY LAW OF JUNE 29, 1938, 52 STAT. 1246, QUOTED IN YOUR LETTER. THE TERMS OF THAT STATUTE NEED NOT BE APPLIED SO AS TO REQUIRE ANY DIFFERENT RULE IN THIS REGARD AS TO REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DIEM, PER HOUR, OR ON A PIECE-WORK BASIS, AND SUBJECT TO ITS PROVISIONS, THAN THE RULE ABOVE STATED APPLICABLE TO ALL CLASSES OF EMPLOYEES, THE PURPOSE OF THAT HOLIDAY STATUTE HAVING BEEN TO EQUALIZE THE RIGHTS TO HOLIDAY PAY OF REGULAR, PER DIEM, ETC., EMPLOYEES WITH THE RIGHT TO HOLIDAY PAY OF PER ANNUM EMPLOYEES.

ALSO, IT IS WITHIN ADMINISTRATIVE DISCRETION AS IN THE NATURE OF A DISCIPLINARY MEASURE TO REFUSE TO AUTHORIZE OR APPROVE ABSENCE ON FEBRUARY 23, 1942, AND TO DEDUCT ONE DAY'S PAY FOR FAILURE TO WORK ON THE HOLIDAY UNDER THE GENERAL ADMINISTRATIVE ORDER, IF IT BE DETERMINED ADMINISTRATIVELY THAT THE EXIGENCIES OF THE SITUATION IN THE INDIVIDUAL CASE DO NOT JUSTIFY ADMINISTRATIVE ACTION EXCUSING THE EMPLOYEE FROM WORKING BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, PARTICULARLY WHERE THERE WAS ANY REASON TO BELIEVE AN EMPLOYEE WAS DELIBERATELY TRYING TO AVAIL HIMSELF OF AN ABSENCE BECAUSE IT WOULD NOT BE CHARGED AS LEAVE.

ACCORDINGLY, THE ANSWERS TO YOUR QUESTIONS, OTHER THAN THE GENERAL RULES ABOVE STATED THAT ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY MAY NOT BE CHARGED FOR ABSENCE ON FEBRUARY 23, 1942, AND THAT ABSENCE ON THAT HOLIDAY IS NOT TO BE REGARDED AS LEAVE WITHOUT PAY WITHIN THE MEANING OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, ARE PRIMARILY FOR ADMINISTRATIVE CONSIDERATION IN EACH INDIVIDUAL CASE. HOWEVER, IN THE ABSENCE OF ANY LAW OR REGULATION CONTROLLING THE MATTER, AND IN ORDER THAT THE SAME RULES MAY BE APPLIED UNIFORMLY, SO FAR AS POSSIBLE, YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

THE EMPLOYEES IN QUESTION 1 AND 2 SHOULD BE PAID FOR THE HOLIDAY, WITHOUT CHARGE TO LEAVE OF ANY KIND.

QUESTIONS 3 (A) AND (B) ARE ANSWERED IN THE NEGATIVE. WHETHER IN THIS CASE THERE SHOULD BE DEDUCTED ONE DAY'S PAY FOR FAILURE TO WORK ON THE HOLIDAY IS FOR ADMINISTRATIVE DETERMINATION.

QUESTIONS 4 (A) AND (B) ARE ANSWERED IN THE NEGATIVE. IF IT BE DETERMINED BY THE ADMINISTRATIVE OFFICE THAT THIS EMPLOYEE WAS ACTUALLY NOT ABLE TO WORK ON FEBRUARY 23, 1942, IT IS THE VIEW OF THIS OFFICE THAT THE EMPLOYEE SHOULD BE EXCUSED FROM WORKING AND PAID HIS REGULAR COMPENSATION FOR THAT DAY.

REFERRING TO THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THE ABOVE ANSWERS ARE APPLICABLE, ALSO, TO "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE- WORK BASIS," QUOTING FROM THE HOLIDAY LAW OF JUNE 29, 1938.