B-74692, MAY 13, 1948, 27 COMP. GEN. 686

B-74692, MAY 13, 1948, 27 COMP. GEN. 686

LEAVES OF ABSENCE - SICK - SUBSTITUTION FOR ANNUAL LEAVE DURING REDUCTION IN FORCE PERIOD THE RULE STATED IN DECISION OF OCTOBER 22, 1947, 27 COMP. GEN. 227, THAT SICK LEAVE MAY BE SUBSTITUTED FOR ANNUAL LEAVE WITHOUT A RETURN TO DUTY IN THE CASE OF AN EMPLOYEE WHO BECOMES ILL WHILE IN THE NON-DUTY STATUS WITH PAY PORTION OF HIS REDUCTION IN FORCE PERIOD, BEING BASED ON AN AMENDMENT TO THE ANNUAL AND SICK LEAVE REGULATIONS, CONSTITUTES AN ORIGINAL CONSTRUCTION OF THE LEAVE REGULATIONS AS AMENDED AND IS TO BE REGARDED AS EFFECTIVE FROM THE DATE OF THE ISSUANCE OF THE AMENDMENT, NAMELY, JULY 1, 1946. UNDER THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, SICK LEAVE MAY BE SUBSTITUTED FOR ANNUAL LEAVE IN THE CASE OF AN EMPLOYEE WHO BECAME ILL WHILE IN THE NON-DUTY STATUS WITH PAY PORTION OF HIS REDUCTION IN FORCE PERIOD, AND THE DATE OF SEPARATION MAY BE EXTENDED, IF NECESSARY, FOR THE PURPOSE OF GRANTING ALL ACCRUED SICK LEAVE; HOWEVER, WHERE SEPARATION FROM THE SERVICE HAS BEEN EFFECTED, THE RETROACTIVE GRANTING OF SICK LEAVE MAY NOT EXTEND BEYOND THE EFFECTIVE DATE OF THE SEPARATION. THE APPROPRIATION CHARGEABLE WITH ANY ADDITIONAL PAYMENTS TO AN EMPLOYEE BECAUSE OF SUBSTITUTION OF SICK LEAVE FOR THE LEAVE WITHOUT PAY PORTION OF HIS REDUCTION IN FORCE PERIOD IS THE APPROPRIATION THAT WOULD HAVE BEEN CHARGED WITH THE PAYMENT OF SALARY FOR THE PERIOD COVERED, BUT, ON SUBSTITUTION OF SICK LEAVE FOR THE ANNUAL LEAVE PORTION OF SUCH PERIOD, THE ANNUAL LEAVE REMAINING TO THE CREDIT OF THE EMPLOYEE UPON HIS SEPARATION FROM THE SERVICE RESULTING FROM SUCH SUBSTITUTION IS FOR PAYMENT IN A LUMP SUM AND CHARGEABLE TO THE APPROPRIATION AVAILABLE FOR PAYMENT OF THE EMPLOYEE'S SALARY ON THE DATE OF SEPARATION FROM THE SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, MAY 13, 1948:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1948, REQUESTING ADVICE WHETHER THE CONCLUSION REACHED IN OFFICE DECISION OF OCTOBER 22, 1947, B- 67876, 27 COMP. GEN. 227--- TO THE EFFECT THAT UNDER CURRENT LEAVE REGULATIONS SICK LEAVE MAY, WITHIN ADMINISTRATIVE DISCRETION, BE SUBSTITUTED FOR ANNUAL LEAVE--- MAY BE APPLIED IN THE CASE OF AN EMPLOYEE WHO RECEIVED A NOTICE OF SEPARATION BY REDUCTION IN FORCE AND ENTERED ON TERMINAL ANNUAL LEAVE APRIL 5, 1947, BUT WHO BECAME ILL PRIOR TO EXPIRATION OF HIS ANNUAL LEAVE AND BEFORE HIS SEPARATION BECAME EFFECTIVE ON JULY 26, 1947. ALSO, IN THE EVENT THE ANSWER TO THAT QUESTION IS IN THE AFFIRMATIVE, YOU REQUEST FURTHER CLARIFICATION WITH RESPECT TO WHETHER THE SEPARATION DATE OF THE EMPLOYEE MAY BE EXTENDED TO PERMIT THE GRANTING OF ALL ACCRUED SICK LEAVE AND, IF SO, WHAT APPROPRIATIONS PROPERLY ARE FOR CHARGING WITH ANY ADDITIONAL PAYMENTS.

THE PORTION OF THE DECISION OF OCTOBER 22, 1947 (QUESTION 5 (A) AND THE ANSWER THERETO), TO WHICH YOU MAKE REFERENCE, IS AS FOLLOWS:

5. (A) IF AN EMPLOYEE BECOMES ILL WHILE ON ANNUAL LEAVE FOLLOWING THE 30- DAY ACTIVE DUTY PERIOD, AND REMAINS ILL FOR AT LEAST FIVE WORK DAYS, MAY SICK LEAVE BE SUBSTITUTED FOR THE ANNUAL LEAVE UPON SUBMISSION OF A MEDICAL CERTIFICATE, WITHIN THE DISCRETION OF THE EMPLOYING AGENCY? * *

IT WAS HELD IN 23 COMP. GEN. 638, 643--- UNDER WORDING THEN APPEARING IN THE LEAVE REGULATIONS (SECTION 3.6) WHICH SUBSTANTIALLY IS THE SAME AS THAT APPEARING IN 30.306 OF THE CURRENT LEAVE REGULATIONS, SUPRA--- THAT THERE COULD BE NO SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE UNTIL THERE WAS A RETURN TO DUTY. TO SOME EXTENT THAT DECISION TURNED UPON AN ADDITIONAL PROVISION OF THE REGULATIONS (SECTION 4.2 (B) ( WHICH SINCE HAS BEEN ELIMINATED AND WHICH PROVIDED THAT THE FINAL DATE OF SEPARATION COULD NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE. THE PROVISIONS OF SECTION 30.306 OF THE CURRENT LEAVE REGULATIONS WHICH REQUIRE THAT AN APPLICATION FOR SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE SHALL BE MADE WITHIN TWO DAYS AFTER RETURN TO DUTY PRIMARILY APPEAR TO BE FOR APPLICATION WHERE THERE ACTUALLY IS A RETURN TO DUTY. THERE EXISTS NO COMPARABLE REGULATION FOR THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE WHERE THERE IS NO RETURN TO DUTY. IN THE ABSENCE OF SUCH A REGULATION AND, ALSO, IN THE ABSENCE OF A REGULATION SUCH AS FORMERLY APPEARED WHICH PROVIDED THAT THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE THERE IS NO COGENT REASON TO CONCLUDE THAT SICK LEAVE NOW MAY NOT BE SUBSTITUTED FOR ANNUAL LEAVE WITHOUT A RETURN TO DUTY. HENCE, IT IS CONCLUDED THAT UNDER EXISTING LEAVE REGULATIONS THE HOLDING IN 23 COMP. GEN. 638, 643, THAT THERE MAY NOT BE A SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE NO LONGER NEED BE FOLLOWED. ACCORDINGLY, QUESTION 5 (A) IS ANSWERED IN THE AFFIRMATIVE RENDERING UNNECESSARY ANY ANSWERS TO QUESTIONS 5 (B) AND 5 (C).

YOUR DOUBT AS TO THE APPLICATION OF THAT DECISION MAINLY IS CONCERNED WITH THE EFFECTIVE DATE THEREOF. IT APPEARS TO BE YOUR OPINION THAT IF THE DECISION BE EFFECTIVE ONLY FROM THE DATE OF ISSUANCE, NAMELY, OCTOBER 22, 1947, THE RULE PREVIOUSLY STATE IN 23 COMP. GEN. 638, AT PAGE 643, REFERRED TO IN THE ABOVE QUOTE, WOULD BE APPLICABLE AND, THEREFORE, WOULD PRECLUDE ANY SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE; WHEREAS, IF SAID DECISION OF OCTOBER 22, 1947, BE CONSIDERED AS EFFECTIVE JULY 1, 1946, THE DATE WHEN THE PROVISIONS OF THE LEAVE REGULATIONS WERE FIRST ELIMINATED, WHICH PROVIDED THAT AN EMPLOYEE'S DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK LEAVE--- AND WHICH REGULATION FORMED THE BASIS IN SAID DECISION FOR THE CHANGE IN THE RULE--- THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE IN THE INSTANT CASE WOULD BE PROPER--- AT LEAST TO THE EXTENT OF PERMITTING THE EMPLOYEE TO BE CARRIED IN A SICK LEAVE STATUS TO THE DATE OF HIS SEPARATION FROM THE SERVICE.

ORDINARILY, A CONSTRUCTION OF A STATUTE, OR A REGULATION HAVING THE FORCE AND EFFECT OF LAW--- SUCH AS THE LEAVE REGULATIONS--- IS EFFECTIVE FROM THE EFFECTIVE DATE OF THE STATUTE OR REGULATION, BUT A DECISION CHANGING A PRIOR CONSTRUCTION GENERALLY IS PROSPECTIVE ONLY. 3 COMP. GEN. 966; 4 ID. 274, 636, 755; 24 ID. 688.

THAT PORTION OF THE DECISION OF OCTOBER 22, 1947, HEREINBEFORE QUOTED, WHILE INVOLVING A REVERSAL OF A PRIOR CONSTRUCTION OF THE LEAVE REGULATIONS, WAS BASED UPON AMENDED REGULATIONS OMITTING CERTAIN PERTINENT PROVISIONS WHICH, IN PART, CONTROLLED THE PREVIOUS DECISION. HENCE, THE LATTER RULING IS TO BE REGARDED AS AN ORIGINAL CONSTRUCTION OF THE AMENDED REGULATIONS--- THE REVERSAL OF THE PRIOR RULING MERELY FOLLOWING AS A RESULT THEREOF--- AND IN LINE WITH THE GENERAL PRINCIPLE STATED ABOVE, IS TO BE CONSIDERED AS EFFECTIVE FROM THE DATE OF THE ISSUANCE OF THE AMENDED REGULATIONS, NAMELY, JULY 1, 1946.

UPON THAT CONCLUSION YOUR QUESTION WHETHER THE DEPARTMENT MAY AT THIS TIME SUBSTITUTE ACCRUED SICK LEAVE FOR TERMINAL ANNUAL LEAVE FOR WHICH THE EMPLOYEE WAS CHARGED FOR A PERIOD OF ILLNESS WHICH OCCURRED SUBSEQUENT TO THE TIME OF THE EMPLOYEE'S REDUCTION IN FORCE NOTICE BUT PRIOR TO THE DATE OF HIS SEPARATION IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION 6 (A) IN THE DECISION OF OCTOBER 22, 1947.

REFERRING TO THE QUESTION OF WHETHER THE EMPLOYEE'S SEPARATION DATE MAY BE EXTENDED TO PERMIT THE GRANTING OF ALL ACCRUED SICK LEAVE (90 DAYS), THERE IS FOR CONSIDERATION THE GENERAL RULE IN EFFECT FOR MANY YEARS THAT ONCE AN EMPLOYEE'S SEPARATION BECOMES AN ACCOMPLISHED FACT, THE DATE THEREOF MAY NOT BE EXTENDED FOR THE PURPOSES OF GRANTING LEAVE EVEN THOUGH THE DATE OF SEPARATION MAY HAVE BEEN FIXED THROUGH ERROR OR A MISUNDERSTANDING IN THE ADMINISTRATION OF THE LEAVE STATUTES AND REGULATIONS. 16 COMP. GEN. 899; 17 ID. 324; 20 ID. 321; 22 ID. 810; 24 ID. 27.

WHILE A PROVISION WAS ADDED TO THE LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, TO SPECIFICALLY OVERCOME THAT RULE WITH RESPECT TO ANNUAL LEAVE (SEE 23 COMP. GEN. 638, AT 644), WHICH REQUIRED THE GRANTING OF ALL ACCRUED LEAVE UPON AN EMPLOYEE'S SEPARATION FROM THE SERVICE, NO SIMILAR PROVISION WAS MADE WITH RESPECT TO SICK LEAVE. ON THE CONTRARY, SECTION 4.2 (B) OF THE SAID 1944 REGULATIONS PROVIDING THAT THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE APPEARS TO HAVE BEEN A SUBSTANTIAL ADOPTION OF THE RULE OF THE ACCOUNTING OFFICERS IN RESPECT OF SICK LEAVE. HOWEVER, THAT REGULATION WAS SUPERFLUOUS SO FAR AS PROHIBITING THE EXTENSION OF AN EMPLOYEE'S SEPARATION DATE AFTER SAID SEPARATION BECAME AN ACTUALITY.

THE OMISSION OF THE PROVISIONS OF SECTION 4.2 (B) FROM THE NEW LEAVE REGULATIONS EFFECTIVE JULY 1, 1946, ALTHOUGH HAVING THE EFFECT OF NOW PERMITTING THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE, IN THE MANNER PREVIOUSLY INDICATED, AND THE EXTENSION OF AN EMPLOYEE'S DATE OF SEPARATION PRIOR TO THE TIME THE SEPARATION ACTUALLY OCCURS, DID NOT OPERATE TO ABROGATE THE RULE OF THIS OFFICE PRECLUDING THE EXTENSION OF AN EMPLOYEE'S DATE OF SEPARATION FOR THE PURPOSE OF GRANTING LEAVE AFTER SAID SEPARATION HAS BEEN EFFECTED. ACCORDINGLY, THE EMPLOYEE IN THIS CASE HAVING BEEN EFFECTIVELY SEPARATED FROM THE SERVICE ON JULY 26, 1947, MAY NOT BE GRANTED SICK LEAVE TO EXTEND BEYOND THAT DATE.

WITH RESPECT TO THE APPROPRIATION OR APPROPRIATIONS CHARGEABLE WITH ANY ADDITIONAL PAYMENTS TO THE EMPLOYEE BECAUSE OF SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE AND LEAVE WITHOUT PAY, YOU ARE ADVISED THAT SO FAR AS CONCERNS THE SUBSTITUTION OF SICK LEAVE FOR LEAVE WITHOUT PAY, THE APPROPRIATIONS CHARGEABLE ARE THE ONES THAT WOULD HAVE BEEN CHARGED WITH THE PAYMENT OF SALARY FOR THE PERIOD COVERED. 22 COMP. GEN. 932. COURSE, THE PAYMENT FOR THE ANNUAL LEAVE CREDIT RESULTING FROM THE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE IS FOR TREATING AS A LUMP SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AND IS CHARGEABLE TO THE APPROPRIATION AVAILABLE FOR PAYMENT OF THE EMPLOYEE'S SALARY ON THE DATE OF HIS SEPARATION FROM THE SERVICE (24 COMP. GEN. 578; 25 ID. 687), SINCE THE EFFECT OF THE SUBSTITUTION OF SICK LEAVE WILL BE TO PLACE THE EMPLOYEE IN A STATUS SYNONYMOUS WITH AN ACTIVE DUTY STATUS EXTENDING TO THE DATE OF SEPARATION. SEE 27 COMP. GEN. 227, 231. SIMILAR CASES WOULD BE FOR HANDLING ACCORDINGLY.