B-33878, APRIL 23, 1943, 22 COMP. GEN. 986

B-33878, APRIL 23, 1943, 22 COMP. GEN. 986

LEAVES OF ABSENCE - SICK - ACCUMULATION LIMITATION UNDER SECTION 2 OF THE SICK LEAVE ACT OF MARCH 14, 1936, AND EXECUTIVE ORDER NO. 8385 ISSUED PURSUANT THERETO, SICK LEAVE OF ABSENCE, AS DISTINGUISHED FROM ANNUAL LEAVE, IS AUTHORIZED TO BE CREDITED AND ACCUMULATED, NOT TO EXCEED A TOTAL ACCUMULATION OF 90 DAYS, ONLY ON THE BASIS OF THE MONTH WITHOUT REGARD TO THE CALENDAR OR LEAVE YEAR, AND, THEREFORE, ACCUMULATED UNUSED SICK LEAVE MAY AT NO TIME, EITHER DURING OR AT THE END OF A CALENDAR OR LEAVE YEAR, EXCEED 90 DAYS.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR APRIL 23, 1943:

I HAVE YOUR LETTER OF APRIL 15, 1943, AS FOLLOWS:

A QUESTION HAS BEEN RAISED IN THE FEDERAL SECURITY AGENCY WITH REGARD TO THE ACCUMULATION OF SICK LEAVE.

SECTION 1 (F) OF EXECUTIVE ORDER OF MARCH 29, 1940 ( NO. 8384), AS AMENDED BY EXECUTIVE ORDER OF MARCH 3, 1943 ( NO. 9307), PRESCRIBING UNIFORM ANNUAL LEAVE REGULATIONS, DEFINES ACCUMULATED LEAVE AS FOLLOWS:

" "ACCUMULATED LEAVE" MEANS THE UNUSED ANNUAL LEAVE NOT EXCEEDING SIXTY DAYS, OR NOT EXCEEDING NINETY DAYS IN CASE UNUSED ANNUAL LEAVE HAS ACCUMULATED DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, IS INCLUDED, WHICH HAS ACCRUED DURING YEARS PRIOR TO THE CURRENT YEAR IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 OF THESE REGULATIONS.'

THERE IS NO CORRESPONDING DEFINITION IN THE EXECUTIVE ORDER OF MARCH 29, 1940 ( NO. 8385) PRESCRIBING UNIFORM SICK-LEAVE REGULATIONS, BUT SECTION 3 OF THE LATTER REGULATIONS STATES, IN PART, THAT "THE TOTAL ACCUMULATION SHALL NOT EXCEED 90 DAYS.'

CAN THE DEFINITION OF "ACCUMULATED LEAVE" QUOTED ABOVE BE APPLIED TO THE WORD "ACCUMULATION" AS USED IN EXECUTIVE ORDER 8385 JUST REFERRED TO? IN OTHER WORDS, DOES THE WORD "ACCUMULATION" AS USED HERE MEAN THAT AT NO TIME DURING ANY CALENDAR YEAR THE AMOUNT OF UNUSED SICK LEAVE CAN EXCEED THE TOTALS PRESCRIBED OR THAT THE BALANCE AT THE END OF ANY CALENDAR YEAR CANNOT EXCEED THOSE TOTALS? DECISIONS IN 15 COMP. GEN. 866 AND 1058, AND 21 ID. 965, WOULD INDICATE THE FORMER TO BE THE CASE, BUT IN VIEW OF THE GENERAL INTEREST IN THE QUESTION IT SEEMS ADVISABLE TO HAVE YOUR OPINION REGARDING IT.

SECTION 2 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER JANUARY 1, 1936, CUMULATIVE SICK LEAVE WITH PAY, AT THE RATE OF ONE AND ONE-QUARTER DAYS PER MONTH, SHALL BE GRANTED TO ALL CIVILIAN OFFICERS AND EMPLOYEES, THE TOTAL ACCUMULATION NOT TO EXCEED NINETY DAYS.

SECTION 3 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940, PROVIDES:

EXCEPT AS PROVIDED IN SECTION 4 HEREOF, EMPLOYEES SHALL BE ENTITLED TO SICK LEAVE AT THE RATE OF 1 1/4 DAYS A MONTH, AND IF SUCH LEAVE IS NOT USED IT SHALL ACCUMULATE: PROVIDED, THAT THE TOTAL ACCUMULATION SHALL NOT EXCEED 90 DAYS. SICK LEAVE ACCRUING DURING ANY MONTH OF SERVICE SHALL BE AVAILABLE AT ANY TIME DURING THE MONTH.

UNDER THE ABOVE-QUOTED LAW AND REGULATION, SICK LEAVE OF ABSENCE IS AUTHORIZED TO BE CREDITED AND ACCUMULATED ONLY ON THE BASIS OF THE MONTH WITHOUT REGARD TO THE CALENDAR OR LEAVE YEAR. COMPARE SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND SECTION 2 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER 8384, DATED MARCH 29, 1940, AS AMENDED BY EXECUTIVE ORDER 9307, DATED MARCH 3, 1943, PROVIDING THAT ANNUAL LEAVE IS AUTHORIZED TO BE CREDITED AND ACCUMULATED ONLY ON THE BASIS OF THE CALENDAR OR LEAVE YEAR. THAT DISTINCTION BETWEEN THE CREDITING AND ACCUMULATION OF SICK AND ANNUAL LEAVE IS STATED IN THE DECISIONS CITED IN YOUR LETTER. SEE, FOR INSTANCE, FIRST PARAGRAPH ON PAGE 868 OF 15 COMP. GEN., AND FIRST PARAGRAPH ON PAGE 969 OF 21 ID.

ANSWERING THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT AT NO TIME, EITHER DURING OR AT THE END OF A CALENDAR OR LEAVE YEAR, MAY ACCUMULATED UNUSED SICK LEAVE EXCEED 90 DAYS.