B-40705, MARCH 29, 1944, 23 COMP. GEN. 731

B-40705, MARCH 29, 1944, 23 COMP. GEN. 731

LEAVES OF ABSENCE - SICK - ADVANCES SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, AND SECTION 3.8 OF THE SICK LEAVE REGULATIONS, CONTROLLING THE ADVANCE OF SICK LEAVE, FIX NO LIMITATION UPON THE TIME WHEN AN EMPLOYEE MAY APPLY FOR AN ADVANCE OF SICK LEAVE, OR UPON THE TIME WITHIN WHICH THE ADVANCE MAY BE APPROVED ADMINISTRATIVELY, AND, THEREFORE, IF AN EMPLOYEE ON LEAVE WITHOUT PAY BECAUSE OF ILLNESS AND BEFORE RETURN TO DUTY IS QUALIFIED FOR AN ADVANCE OF SICK LEAVE, THE ADVANCE MAY BE GRANTED OVER A PERIOD THAT HAS PASSED, BEGINNING WITH THE FIRST DAY OF LEAVE WITHOUT PAY AND EXTENDING FOR CONTINUOUS PERIOD, THAT IS, INCLUDING A PERIOD BOTH BEFORE AND AFTER THE ADMINISTRATIVE APPROVAL OF THE ADVANCE OF SICK LEAVE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, MARCH 29, 1944:

I HAVE YOUR LETTER OF MARCH 9, 1944, AS FOLLOWS:

YOUR DECISION IS SOUGHT IN CONNECTION WITH QUESTIONS WHICH HAVE ARISEN IN THE APPLICATION OF SECTION 3.7 OF EXECUTIVE ORDER 9414, DATED JANUARY 13, 1944. SECTION 3.7 READS AS FOLLOWS:

"SICK LEAVE MAY NOT BE GRANTED FOR A PERIOD IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NON-PAY STATUS, UNLESS AND UNTIL THERE IS A RETURN TO ACTUAL DUTY, NOR MAY SUCH LEAVE WITHOUT PAY BE CONVERTED TO SICK LEAVE.'

SINCE A GREAT MANY OF OUR EMPLOYEES HAVE HAD LITTLE, IF ANY, PREVIOUS GOVERNMENT SERVICE, THE SICK LEAVE ACCUMULATED TO THEIR CREDIT FROM PREVIOUS YEARS IS COMPARATIVELY NEGLIGIBLE AND IT OFTEN HAPPENS THAT IN CASES OF EXTENDED ABSENCE ON ACCOUNT OF SICKNESS AN EMPLOYEE IS ABSENT FOR A PERIOD IN EXCESS OF THE SICK LEAVE ACCUMULATED TO HIS CREDIT. BY THE TIME AN APPLICATION FOR ADVANCED SICK LEAVE IS SUBMITTED BY SUCH EMPLOYEE AND IS ADMINISTRATIVELY APPROVED, THE ACCUMULATED SICK LEAVE MAY HAVE BEEN EXHAUSTED AND THE EXCESS HAS BEEN CHARGED TO ACCUMULATED ANNUAL LEAVE AND WHERE THIS IS NOT SUFFICIENT, THE EMPLOYEE MAY HAVE BEEN PLACED IN A NON- PAY STATUS.

SINCE THE ENTIRE PERIOD OF ABSENCE, IN SUCH A CASE, IS ON ACCOUNT OF SICKNESS, THE QUESTION IS RAISED AS TO WHETHER SICK LEAVE MAY BE GRANTED, UPON THE APPROVAL OF THE APPLICATION FOR ADVANCED SICK LEAVE AND SUBJECT TO THE EMPLOYEE'S RETURN TO DUTY (1) FOR THAT PORTION OF THE CONTINUOUS PERIOD OF ABSENCE ON ACCOUNT OF SICKNESS FOR WHICH THE EMPLOYEE WAS CARRIED IN A NON-PAY STATUS BECAUSE OF THE EXHAUSTION OF BOTH ACCUMULATED SICK AND ANNUAL LEAVE, AND (2) FOR THAT PORTION OF THE CONTINUOUS PERIOD OF ABSENCE ON ACCOUNT OF SICKNESS, WHICH FOLLOWS THE PERIOD IN WHICH THE EMPLOYEE WAS CARRIED IN A NON-PAY STATUS BECAUSE OF THE EXHAUSTION OF BOTH ACCUMULATED SICK AND ANNUAL LEAVE.

THE DISTINCTION ATTEMPTED TO BE DRAWN AS BETWEEN QUESTIONS (1) AND (2) IS NOT ENTIRELY CLEAR, BUT IT IS ASSUMED THAT QUESTION (1) IS DIRECTED TO A PERIOD PRIOR TO THE APPROVAL OF THE ADVANCE OF SICK LEAVE DURING WHICH THE EMPLOYEE WAS ON LEAVE WITHOUT PAY BECAUSE OF ILLNESS, AND THAT QUESTION (2) RELATES TO A PERIOD AFTER APPROVAL OF THE ADVANCE OF SICK LEAVE.

SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, AND SECTION 3.8 OF THE NEW LEAVE REGULATIONS, CONTROLLING THE ADVANCE OF SICK LEAVE, SET OR FIX NO LIMITATION UPON THE TIME WHEN AN EMPLOYEE MAY APPLY FOR AN ADVANCE OF SICK LEAVE, OR UPON THE TIME WITHIN WHICH THE ADVANCE MAY BE APPROVED ADMINISTRATIVELY. ACCORDINGLY, IF AN EMPLOYEE ON LEAVE WITHOUT PAY BECAUSE OF ILLNESS AND BEFORE RETURN TO DUTY IS QUALIFIED, UNDER THE LAW AND REGULATION, FOR AN ADVANCE OF SICK LEAVE, THERE IS NO PROHIBITION AGAINST GRANTING THE ADVANCE OF SICK LEAVE OVER A PERIOD THAT HAS PASSED, BEGINNING WITH THE FIRST DAY OF LEAVE WITHOUT PAY AND EXTENDING FOR A CONTINUOUS PERIOD, THAT IS, INCLUDING A PERIOD BOTH BEFORE AND AFTER THE ADMINISTRATIVE APPROVAL OF THE ADVANCE OF SICK LEAVE. COMPARE QUESTION AND ANSWER 4, DECISION OF FEBRUARY 29, 1944, B-40144.

SECTION 3.7 OF THE NEW LEAVE REGULATIONS, QUOTED IN YOUR LETTER, HAS NO APPLICATION TO THE ADVANCE OF SICK LEAVE TO WHICH AN EMPLOYEE IS ENTITLED WHEN HE GOES ON LEAVE WITHOUT PAY BECAUSE OF ILLNESS--- AS IS UNDERSTOOD TO BE THE SITUATION HERE.

ACCORDINGLY, QUESTIONS (1) AND (2), AS ABOVE UNDERSTOOD AND ASSUMED, ARE ANSWERED IN THE AFFIRMATIVE.