B-106704, DECEMBER 14, 1951, 31 COMP. GEN. 215

B-106704, DECEMBER 14, 1951, 31 COMP. GEN. 215

LEAVES OF ABSENCE - ANNUAL AND SICK LEAVE ACT OF 1951 UNDER THE PROVISIONS OF SECTION 202 (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, EXCLUDING FROM THE LEAVE BENEFITS UNDER THE ACT PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD OF THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH WORKWEEK, EMPLOYEES WITH WHEN-ACTUALLY EMPLOYED APPOINTMENTS WHOSE REGULAR TOUR OF DUTY HAS NOT BEEN PRESCRIBED IN ADVANCE ARE NOT ENTITLED TO THE LEAVE BENEFITS OF THE ACT EVEN THOUGH THEY MIGHT ACTUALLY WORK FULL TIME FOR LONG PERIODS. IN DETERMINING UNDER SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, THE YEARS OF SERVICE OF EMPLOYEES TO ASCERTAIN WHETHER THEY SHALL EARN LEAVE ON THE BASIS OF ONE-HALF DAY, THREE-FOURTHS DAY, OR ONE DAY FOR EACH BI-WEEKLY PAY PERIOD, THERE MAY BE INCLUDED ALL CIVILIAN AND MILITARY SERVICE WHICH IS CURRENTLY OR POTENTIALLY CREDITABLE FOR RETIREMENT PURPOSES. WHILE SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDING FOR TRAVEL TIME IN ADDITION TO LEAVE FOR OVERSEAS EMPLOYEES UPON THEIR RETURN TO THE UNITED STATES ON LEAVE, CONTAINS ON SPECIFIC LANGUAGE RESTRICTING TRAVEL ON A LEAVE FREE BASIS TO THE EMPLOYEE'S HOME IN THE UNITED STATES OR TO THE PLACE WHERE HE WAS RECRUITED, THE CIVIL SERVICE COMMISSION SHOULD BE REGULATION CONFINE THE FREE TRANSIT TIME TO PLACES OF RESIDENCE IN THE UNITED STATES DESIGNATED BY THE EMPLOYEES. THE TERM "ONE WEEK" AS USED IN SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDING HOME LEAVE FOR FOREIGN SERVICE EMPLOYEES AT A RATE EQUIVALENT TO ONE WEEK FOR EACH FOUR MONTHS OF SERVICE OUTSIDE THE UNITED STATES MAY BE CONSIDERED AS FIVE WORK DAYS, IN VIEW OF THE REQUIREMENTS OF SECTION 205 (A) THAT THE DAYS OF SUCH HOME LEAVE SHALL MEAN DAYS UPON WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF HOLIDAYS, AND ALL NON WORKDAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. HOME LEAVE AUTHORIZED FOR FOREIGN SERVICE EMPLOYEES BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 MAY ACCRUE ONLY FOR EACH FULL FOUR MONTHS OF SERVICE. THE DISCRETION VESTED IN THE HEADS OF DEPARTMENTS AND AGENCIES BY SECTION 203 (G) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 TO GRANT LEAVES OF ABSENCE WITH PAY TO ALIEN EMPLOYEES WHO OCCUPY POSITIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA IS APPLICABLE TO THE ACCUMULATION AS WELL AS THE ACCRUAL OF BOTH ANNUAL AND SICK LEAVE. UNDER SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDING THAT AN EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE "ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS * * * WITHOUT BREAK IN SERVICE," ANY SEPARATION OF ONE OR MORE WORKDAYS IS TO BE REGARDED AS A BREAKING OF THE NINETY DAY QUALIFYING PERIOD; HOWEVER, LEAVE OF ABSENCE WITHOUT PAY DOES NOT CONSTITUTE A BREAK IN SERVICE DURING THE QUALIFYING PERIOD OR AT ANY OTHER TIME. UNDER SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDING THAT AN EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE "ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS * * * WITHOUT BREAK IN SERVICE," AN EMPLOYEE WHO RECEIVES A LUMP SUM PAYMENT FOR ANNUAL LEAVE AND IS REEMPLOYED--- AFTER A BREAK IN SERVICE OF ONE OR MORE WORKDAYS--- BEFORE THE EXPIRATION OF THE PERIOD COVERED BY THE LEAVE IS TO BE REGARDED AS HAVING HAD A BREAK IN SERVICE REQUIRING HIM TO BEGIN ANOTHER NINETY DAY QUALIFYING PERIOD; ALSO, UPON SUCH REEMPLOYMENT UNDER AN APPOINTMENT OF NINETY DAYS OR MORE THE EMPLOYEE IS REQUIRED TO REFUND COMPENSATION AND BE CREDITED WITH PROPORTIONATE LEAVE WHICH MAY BE USED DURING THE QUALIFYING PERIOD. UNDER SECTION 203 (A) AND 204 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AUTHORIZING ANNUAL AND SICK LEAVE ACCRUALS ON THE BASIS OF FULL BI- WEEKLY PAY PERIODS, THE CIVIL SERVICE COMMISSION MAY BY REGULATIONS PROVIDE FOR PRO-RATA ACCRUAL OF LEAVE FOR A PERIOD OF LESS THAN TWO WEEKS FOR EMPLOYEES WHOSE BI-WEEKLY PAY PERIOD BEGINS ON A DATE OTHER THAN JANUARY 6, 1952 (EFFECTIVE DATE OF THE ACT), AND FOR EMPLOYEES TRANSFERRING BETWEEN POSITIONS WITH DIFFERENT BI-WEEKLY OR SEMI-MONTHLY PAY PERIODS, IN ORDER THAT THEY MAY NOT BE DEPRIVED OF ANY LEAVE. TEMPORARY EMPLOYEES WHO ARE PREVENTED FROM COMPLETING THEIR "MONTH OF SERVICE" FOR LEAVE ACCRUAL PURPOSES UNDER THE LEAVE ACTS OF MARCH 14, 1936, AS AMENDED, DUE TO THE REPEAL OF THE ACTS BY THE ANNUAL AND SICK LEAVE ACT OF 1951 (EFFECTIVE JANUARY 6, 1952), MAY BE GIVEN PRO RATED LEAVE CREDIT FOR THE UNCOMPLETED MONTH, PROVIDED THEY BE REQUIRED TO COMPLETE THEIR MONTH OF SERVICE ON OR AFTER JANUARY 6, 1952. UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, THE CIVIL SERVICE COMMISSION MAY BY REGULATION PRESCRIBE THAT FOR EMPLOYEES ON A BI WEEKLY PAY PERIOD, ANY HOURS IN A PAY STATUS IN EXCESS OF FORTY IN ANY ADMINISTRATIVE WORKWEEK SHALL BE DISREGARDED IN COMPUTING LEAVE EARNINGS, AND FOR THOSE ON A SEMI-MONTHLY PAY PERIOD ANY HOURS IN EXCESS OF THE NORMAL WORKING HOURS IN ANY SEMI-MONTHLY PAY PERIOD SHALL BE DISREGARDED. REGULATIONS ISSUED PURSUANT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, MAY DEFINE PART-TIME EMPLOYEES WHO ARE ENTITLED TO EARN LEAVE AS THOSE "FOR WHOM THERE HAS BEEN ESTABLISHED IN ADVANCE A REGULAR TOUR OF DUTY ON ONE OR MORE DAYS DURING EACH ADMINISTRATIVE WORKWEEK, AND HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT," AND PROVIDE FOR THE GRANTING OF LEAVE TO SUCH EMPLOYEES UPON A BASIS OF THEIR YEARS OF SERVICE. UNDER SECTION 203 (H) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AUTHORIZING THE GRANTING AT ANY TIME DURING A YEAR OF LEAVE ACCRUING DURING THE YEAR, THE CIVIL SERVICE COMMISSION MAY BY REGULATION PROVIDE FOR THE CREDITING OF EMPLOYEES AT THE BEGINNING OF THE FIRST PAY PERIOD IN THE CALENDAR YEAR WITH SUCH ANNUAL LEAVE AS WILL ACCRUE IN 26 PAY PERIODS (LEAVE YEAR) EVEN THOUGH THE END OF A CALENDAR YEAR MIGHT NOT COINCIDE WITH THE END OF A PAY PERIOD.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 14, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1951, SUBMITTING FOR DECISION CERTAIN QUESTIONS WHICH HAVE ARISEN IN THE PREPARATION OF REGULATIONS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, PUBLIC LAW 233, APPROVED OCTOBER 30, 1951, BUT EFFECTIVE JANUARY 6, 1952. IN THAT CONNECTION YOU TRANSMITTED TENTATIVE REGULATIONS (INCLUDING COMMENTS AND QUESTIONS) REFLECTING A CONSENSUS OF REPRESENTATIVES OF VARIOUS DEPARTMENTS AND AGENCIES WHO ARE UNDERSTOOD TO BE WORKING AS A GROUP UNDER THE AUSPICES OF THE FEDERAL PERSONNEL COUNCIL.

THE QUESTION WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION 1

DOES SECTION 202 (B), WHICH EXCLUDES FROM LEAVE BENEFITS "PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK," CONTEMPLATES (SIC) THE EXCLUSION FROM LEAVE BENEFITS OF ALL EMPLOYEES, INCLUDING EMPLOYEES WITH W.A.E. APPOINTMENTS WHO ACTUALLY WORK FULL TIME FOR LONG PERIODS, UNLESS A REGULAR TOUR OF DUTY HAS BEEN ESTABLISHED IN ADVANCE?

SECTION 202 (B) (1) (8) OF THE NEW LAW, 65 STAT. 679, PROVIDES AS FOLLOWS:

THIS TITLE SHALL NOT APPLY TO--- * * * PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK;

THE FACT THAT THE CONGRESS PROVIDED FOR THE EARNING OF LEAVE BY PART TIME EMPLOYEES WITH A REGULAR TOUR OF DUTY SUGGESTS THAT THERE WAS NO INTENTION TO EXCLUDE EMPLOYEES APPOINTED ON A WHEN/ACTUALLY EMPLOYED/BASIS. HOWEVER, IN ORDER FOR THAT CLASS OF EMPLOYEES TO COME WITHIN THE BENEFITS OF THE STATUTE, THE ACT CLEARLY CONTEMPLATES THE ESTABLISHMENT OF A REGULAR TOUR OF DUTY IN ADVANCE. IN OTHER WORDS, UNLESS A TOUR OF DUTY BE SO PRESCRIBED, EMPLOYEES IN THIS CATEGORY (W.A.E.) WOULD BE WITHOUT THE BENEFIT OF THE LEAVE ACT EVEN THOUGH THEY MIGHT ACTUALLY WORK FULL TIME FOR LONG PERIODS. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2

DOES "ALL SERVICE CREDITABLE UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT * * * FOR THE PURPOSES OF AN ANNUITY UNDER SUCH ACT," IN SECTION 203 (A), MEAN ALL GOVERNMENT SERVICE AND ALL HONORABLE MILITARY SERVICE? IF NOT, WHAT KINDS OF SERVICE CANNOT BE CREDITED? SPECIFICALLY, IS THE FOLLOWING SERVICE CREDITABLE?

A. GOVERNMENT SERVICE WHICH WOULD BE CREDITED TOWARD ANNUITY ONLY IF THE EMPLOYEE WERE TO MAKE DEPOSITS WHICH HAVE NOT YET BEEN MADE: THAT IS, SERVICE FOR WHICH RETIREMENT DEDUCTIONS WERE MADE BUT HAVE BEEN WITHDRAWN BY THE EMPLOYEE DURING A PAST SEPARATION.

B. GOVERNMENT SERVICE WHICH WAS NOT SUBJECT TO THE RETIREMENT ACT, WHEN THE EMPLOYEE IS NOT YET IN A POSITION WHICH WOULD ENTITLE HIM TO CREDIT FOR THE SERVICE UNDER THE CIVIL SERVICE RETIREMENT ACT: E.G., AN INDEFINITE APPOINTEE WHOSE PAST AND CURRENT SERVICE IS COVERED BY THE SOCIAL SECURITY ACT RATHER THAN THE RETIREMENT ACT, OR A DISTRICT OF COLUMBIA POLICEMAN OR FIREMAN WHO IS COVERED BY A DIFFERENT RETIREMENT SYSTEM.

C. CIVILIAN SERVICE FOR WHICH THE EMPLOYEE IS NOW RECEIVING ANNUITY UNDER ANOTHER RETIREMENT SYSTEM: E.G., A FORMER DISTRICT OF COLUMBIA FIREMAN RETIRED AND RECEIVING ANNUITY AS SUCH WHO HAS ENTERED FEDERAL GOVERNMENT SERVICE.

D. MILITARY SERVICE ON THE BASIS OF WHICH THE EMPLOYEE IS RECEIVING RETIRED PAY.

E. MILITARY SERVICE WHICH WAS NOT AN INTERRUPTION OF CIVILIAN SERVICE, WHEN THE EMPLOYEE DOES NOT HAVE FIVE YEARS OF CIVILIAN SERVICE.

THIS QUESTION CONCERNS THE DETERMINATION OF THE YEARS OF SERVICE OF EMPLOYEES TO ASCERTAIN WHETHER THEY SHALL EARN LEAVE ON THE BASIS OF ONE- HALF DAY, THREE-FOURTHS DAY, OR ONE DAY FOR EACH BI-WEEKLY PAY PERIOD. THE LITERAL LANGUAGE OF THE STATUTE WOULD APPEAR TO EXCLUDE SERVICE WHICH IS NOT CURRENTLY CREDITABLE TO AN EMPLOYEE FOR PURPOSES OF AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468, AS AMENDED. HOWEVER, SUCH AN INTERPRETATION WOULD, AS INDICATED HEREINAFTER, LEAD TO ABSURD RESULTS IN MANY INSTANCES. FOR EXAMPLE, IN THE CASE OF AN EMPLOYEE OF A DEPARTMENT OR AGENCY SUBJECT TO THE SOCIAL SECURITY ACT, RATHER THAN THE CIVIL SERVICE RETIREMENT ACT, HE NEVER WOULD ACCRUE ENOUGH CREDITABLE SERVICE TO ADVANCE TO A HIGHER LEAVE EARNING OF ANY LEAVE UNDER THE ACT.

IT IS A RULE OF STATUTORY CONSTRUCTION THAT A STATUTE WILL BE CONSTRUED TO AVOID ABSURD CONSEQUENCES. HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457, 472; UNITED STATES V. KATZ, 271 U.S. 354, 362; UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 18; AND SORRELS V. UNITED STATES, 287 U.S. 435; 459. MOREOVER, IN CONFERENCE REPORT NO. 1012, HOUSE OF REPRESENTATIVES, TO ACCOMPANY S. 1046, WHICH BECAME PUBLIC LAW 233, IT IS STATED ON PAGE 20, AS FOLLOWS:

ALL SERVICE WHICH COULD BE CREDITABLE UNDER SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, FOR THE PURPOSES OF AN ANNUITY UNDER SUCH ACT, SHALL BE USED IN DETERMINING YEARS OF SERVICE FOR THE PURPOSES OF SECTION 203. ( ITALICS SUPPLIED.)

FROM THE FOREGOING, IT FAIRLY MAY BE CONCLUDED THAT THE CONGRESS DID NOT INTEND THAT SERVICE BE ACTUALLY CREDITABLE FOR ANNUITY PURPOSES BEFORE BEING USED TO DETERMINE AN EMPLOYEE'S LEAVE SCALE BUT RATHER HAD REFERENCE TO POTENTIALLY CREDITABLE SERVICE, THAT IS, SERVICE WHICH COULD FORM THE BASIS FOR AN ANNUITY AT SOME FUTURE DATE. THEREFORE, ALL PARTS OF QUESTION NO. 2, GENERAL AND SPECIFIC, ARE ANSWERED IN THE AFFIRMATIVE, IT BEING UNDERSTOOD THAT, IN EACH INSTANCE, THE SERVICE INVOLVED IS POTENTIALLY CREDITABLE FOR RETIREMENT PURPOSES.

QUESTION 3

IN SECTION 203 (E), PROVIDING FOR TRAVEL TIME IN ADDITION TO LEAVE FOR OVERSEAS EMPLOYEES, DO THE WORDS "RETURNS TO ANY SUCH STATE OR THE DISTRICT OF COLUMBIA" NECESSARILY LIMIT SUCH TRAVEL TIME TO THE PLACE WHICH WAS THE EMPLOYEE'S HOME OR FROM WHICH HE WAS RECRUITED, OR AN EQUIVALENT DISTANCE, OR MAY HE BE PERMITTED TO SO RETURN TO ANY POINT IN THE UNITED STATES WHICH HE DESIGNATES IN HIS REQUEST FOR LEAVE?

SECTION 203 (E) OF THE ACT IS AS FOLLOWS:

WHERE AN OFFICER OR EMPLOYEE TO WHOM THE PROVISIONS OF SUBSECTION (D) ARE APPLICABLE, OR WHO IS IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE, AND WHOSE POST OF DUTY IS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA RETURNS TO ANY SUCH STATE OR THE DISTRICT OF COLUMBIA ON LEAVE, THE LEAVE GRANTED PURSUANT TO THIS ACT SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM HIS POST OF DUTY AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING OR FLIGHT. THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY WITH RESPECT TO MORE THAN ONE PERIOD OF LEAVE IN ANY TWENTY-FOUR MONTH PERIOD.

WHILE SECTION 203 (E) 65 STAT. 680, CONTAINS NO SPECIFIC LANGUAGE RESTRICTING TRAVEL ON A LEAVE FREE BASIS TO THE EMPLOYEE'S HOME IN THE UNITED STATES OR THE PLACE FROM WHICH HE WAS RECRUITED, IT IS DIFFICULT TO ATTRIBUTE TO THE CONGRESS AN INTENT THAT AN EMPLOYEE SHOULD BE PERMITTED TO TRAVEL TO ANY POINT IN THE UNITED STATES FOR LEAVE PURPOSES WITHOUT CHARGE TO LEAVE FOR THE TRANSIT TIME INVOLVED, PARTICULARLY, IN THE ABSENCE OF SOME INDICATION OF SUCH INTENT IN THE LEGISLATIVE HISTORY OF THE ENACTMENT. MOREOVER, IT IS TO BE NOTED THAT, IN CONNECTION WITH THE AUTHORIZATION OF THE PAYMENT OF TRAVEL EXPENSES OF EMPLOYEES BACK TO THE UNITED STATES UNDER CERTAIN CIRCUMSTANCES E.G., SEE SECTION 7 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808, AS AMENDED), THE CONGRESS HAS LIMITED SUCH EXPENSES TO PLACES OF ACTUAL RESIDENCE OF THE EMPLOYEES IN THE UNITED STATES. ALSO, THE DEPARTMENT OF STATE IN THE ADMINISTRATION OF SECTION 931 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1028, HAS BY REGULATION CONFINED FREE TRANSIT TIME, IN THE MAIN, TO PLACES OF RESIDENCE IN THE UNITED STATES DESIGNATED BY THE EMPLOYEES. IT IS BELIEVED THAT A SIMILAR LIMITATION BY REGULATION SHOULD BE ISSUED BY THE COMMISSION.

QUESTION 4

IN SECTION 203 (F), PROVIDING "HOME LEAVE" FOR FOREIGN SERVICE EMPLOYEES "AT A RATE EQUIVALENT TO ONE WEEK FOR EACH FOUR MONTHS OF SERVICE OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA," MAY "ONE WEEK" BE CONSIDERED TO MEAN FIVE WORK DAYS? MAY PROVISION BE MADE THAT NO ,HOME LEAVE" WILL ACCRUE EXCEPT FOR EACH FULL FOUR MONTHS OF SERVICE?

THE FIRST PART OF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE IN VIEW OF THE REQUIREMENTS OF SECTION 205 (A) 65 STAT. 681, THAT " THE DAYS OF LEAVE PROVIDED FOR IN THIS TITLE SHALL MEAN DAYS UPON WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF HOLIDAYS, AND ALL NONWORKDAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.'

WITH RESPECT TO THE SECOND PART OF THIS QUESTION, THERE IS CONSIDERABLE BASIS FOR THE VIEW THAT THE LANGUAGE "AT A RATE EQUIVALENT TO" WAS INTENDED ONLY AS A MEASURE OF SUCH LEAVE AND THAT IT CONTEMPLATES A BREAKDOWN INTO ACCRUALS OF HOME LEAVE UPON AN HOURLY, DAILY, OR WEEKLY BASIS. HOWEVER, HAVING IN MIND THAT SUCH A BREAKDOWN INTO LESSER UNITS WAS ONE OF THE EVILS SOUGHT TO BE AVOIDED BY THE ACT IN PROVIDING FOR ACCRUAL OF REGULAR ANNUAL AND SICK LEAVE FOR EACH FULL BI-WEEKLY PAY PERIOD, IT WOULD SEEM CONSISTENT TO SAY THAT NO BREAKDOWN WAS INTENDED OF THE HOME LEAVE FOR FOREIGN SERVICE OFFICERS. THE SECOND PART OF THIS QUESTION IS ALSO FOR ANSWERING IN THE AFFIRMATIVE.

QUESTION 5

UNDER SECTION 203 (G), IF AN AGENCY HEAD PRESCRIBES A CERTAIN AMOUNT OF ANNUAL AND SICK LEAVE FOR ALIEN EMPLOYEES WITHIN THE PERMISSIBLE LIMITS, IS SUCH LEAVE CUMULATIVE? IF THE LAW PERMITS IT TO ACCUMULATE, WILL IT BE NECESSARILY CUMULATIVE TO THE SAME EXTENT AS A CITIZEN'S LEAVE, THAT IS, WILL THE ANNUAL LEAVE ACCUMULATE UP TO SIXTY DAYS (OR TO NINETY DAYS IF THE ALIEN MEETS ALL THE CONDITIONS FOR NINETY-DAY ACCUMULATION WHICH A CITIZEN WOULD HAVE TO MEET) AND THE SICK LEAVE ACCUMULATE WITH NO LIMIT? OR MAY THE AGENCY HEAD PLACE A LIMIT ON THE ACCUMULATION OF SICK LEAVE AND A LIMIT OF LESS THAN SIXTY DAYS ON THE ACCUMULATION OF ANNUAL LEAVE, OR PRESCRIBE THAT EITHER SHALL NOT BE CUMULATIVE AT ALL?

SECTION 203 (G), 65 STAT. 681, PROVIDES THAT:

ALIEN EMPLOYEES WHO OCCUPY POSITIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA MAY, IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, BE GRANTED LEAVE OF ABSENCE WITH PAY NOT IN EXCESS OF THE AMOUNT OF ANNUAL AND SICK LEAVE ALLOWABLE UNDER THIS TITLE IN THE CASE OF CITIZEN EMPLOYEES.

THERE IS PERCEIVED NO REASON WHY THE DISCRETION GRANTED BY THIS SECTION IS NOT APPLICABLE TO THE ACCUMULATION AS WELL AS THE ACCRUAL OF BOTH ANNUAL AND SICK LEAVE. MOREOVER, SUCH DISCRETIONARY AUTHORITY WOULD APPEAR TO VEST IN THE HEAD OF THE AGENCY THE RIGHT TO FIX LIMITATIONS UPON THE ACCUMULATION OF EITHER ANNUAL OR SICK LEAVE OR BOTH AS MAY BE DESIRABLE, THE ANNUAL LEAVE ACCUMULATION BEING SUBJECT, OF COURSE, TO THE LIMITATIONS PRESCRIBED IN SECTIONS 203 (C) OR 203 (D) 65 STAT. 680, AS THE CASE MIGHT BE. THE TENTATIVE REGULATION ON SECTION 203 (G) CONTAINED IN THE MATERIAL FROM THE FEDERAL PERSONNEL COUNCIL SUBMITTED WITH YOUR LETTER APPEARS TO BE AN ADEQUATE TREATMENT OF THIS MATTER.

QUESTION 6A, B, C

(A) UNDER SECTION 203 (I), PROVIDING THAT AN EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE "ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT BREAK IN SERVICE," MUST ANY SEPARATION OF ONE OR MORE WORK DAYS BE CONSIDERED A "BREAK IN SERVICE? " IT IS ASSUMED THAT A BREAK WHICH INCLUDED ONLY DAYS WHICH WERE NONWORKDAYS IN EITHER THE POSITION FROM WHICH SEPARATED OR THE POSITION IN WHICH REEMPLOYED WOULD NOT BE A "BREAK IN SERVICE.'

(B) IF AN EMPLOYEE WHO HAS RECEIVED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE UPON SEPARATION FOR ONE OR MORE WORK-DAYS IS REEMPLOYED BEFORE THE EXPIRATION OF THE PERIOD COVERED BY THE LEAVE, WILL HE BE CONSIDERED TO HAVE HAD A "BREAK IN SERVICE" REQUIRING HIM TO BEGIN ANOTHER QUALIFYING NINETY-DAY PERIOD? IF SO, WILL HE NEVERTHELESS BE REQUIRED TO MAKE REFUND AND BE CREDITED WITH THE PROPORTIONATE LEAVE? MAY HE USE SUCH RECREDITED LEAVE DURING THE NINETY-DAY PERIOD? WOULD SUCH AN EMPLOYEE WHO RECEIVED ONLY A SHORT-TERM TEMPORARY APPOINTMENT LIMITED TO LESS THAN NINETY DAYS BE REQUIRED TO MAKE REFUND AND BE CREDITED WITH THE LEAVE?

(C) ARE WE CORRECT IN ASSUMING THAT LEAVE WITHOUT PAY WOULD NOT BE A "BREAK IN SERVICE," EITHER DURING THE QUALIFYING NINETY-DAY PERIOD OR AT ANY OTHER TIME?

THERE APPEARS TO BE NO LEEWAY UNDER THE WORDING OF THIS SECTION WHICH PERMITS ANY INTERPRETATION OTHER THAN THAT WHICH YOU SUGGEST, NAMELY, THAT A SEPARATION OF ONE OR MORE WORKDAYS BE REGARDED AS BREAKING THE CONTINUOUS PERIOD OF 90 DAYS. ACCORDINGLY, QUESTION 6A IS ANSWERED IN THE AFFIRMATIVE WITH THE FURTHER COMMENT THAT YOUR ASSUMPTION AS TO NONWORKDAYS APPEARS CORRECT. WITH RESPECT TO QUESTION 6B, CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE SUGGESTION THAT THE PERIOD COVERED BY A LUMP-SUM LEAVE PAYMENT--- WHERE AN EMPLOYEE IS REEMPLOYED BEFORE THE EXPIRATION OF THE PERIOD COVERED BY THE LEAVE AND AFTER SEPARATION FOR ONE OR MORE WORKDAYS--- BE REGARDED AS AN EXCEPTION TO THE "BREAK IN SERVICE" REQUIREMENT AS THAT TERM IS USED IN THE STATUTE. HOWEVER, AS YOU KNOW, THE DECISIONS OF THIS OFFICE IN THE PAST HAVE NEVER RECOGNIZED PERIODS COVERED BY LUMP-SUM LEAVE PAYMENTS AS SERVICE FOR ANY PURPOSE WHATSOEVER. SEE 24 COMP. GEN. 511; ID. 659. WHILE THE STATUTE HERE INVOLVED REFERS TO EMPLOYMENT RATHER THAN SERVICE, THE EFFECT WOULD BE THE SAME IN THAT AN EMPLOYEE WOULD RECEIVE CREDIT FOR A PERIOD WHEN HE ACTUALLY WAS SEPARATED FROM THE ROLLS OF A DEPARTMENT OR AGENCY. UPON THAT VIEW OF THE MATTER AND CONSISTENT WITH THE ANSWER TO QUESTION 6A THE FIRST PART OF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO THE OTHER THREE PORTIONS OF QUESTION 6B THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, PROVIDES IN PERTINENT PART, AS FOLLOWS:

* * * THAT IF SUCH EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE OR IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY. * * *

UNDER THE ABOVE PROVISION OF THE LUMP-SUM LEAVE ACT IT SEEMS CLEAR THAT A REFUND OF COMPENSATION AND A CORRESPONDING CREDIT OF LEAVE IS MANDATORY IN THE CASE OF AN EMPLOYEE REEMPLOYED UNDER AN APPOINTMENT OF 90 DAYS OR MORE. HOWEVER, THE SAME WOULD NOT APPEAR APPLICABLE IN ALL RESPECTS TO AN EMPLOYEE WHO RECEIVES AN APPOINTMENT FOR LESS THAN 90 DAYS SINCE SAID ACT APPEARS TO CONTEMPLATE A REFUND ONLY IN THE EVENT THE REEMPLOYMENT CARRIES WITH IT A POTENTIAL RIGHT, AT LEAST, TO THE ACCRUAL OF LEAVE. OBVIOUSLY, AN APPOINTMENT FOR LESS THAN 90 DAYS WOULD PRECLUDE AN EMPLOYEE FROM BEING ENTITLED TO ANY LEAVE ACCRUALS UNLESS HE SHOULD HAPPEN TO RECEIVE ANOTHER APPOINTMENT OR APPOINTMENTS WITHOUT A BREAK IN SERVICE TO COMPLETE THE 90- DAY PERIOD. THUS, UNDER SUCH CIRCUMSTANCES, A REFUND OF THE LUMP-SUM LEAVE PAYMENT RECEIVED BY AN EMPLOYEE IN A PRIOR POSITION WOULD NOT BE REQUIRED PROVIDED THE EMPLOYEE DOES NOT RECEIVE ANOTHER APPOINTMENT OR AN EXTENSION OF HIS SHORT-TERM APPOINTMENT OF LESS THAN 90 DAYS WITHOUT A BREAK IN SERVICE. ONCE THE EMPLOYMENT IS EXTENDED TO A PERIOD OF 90 DAYS OR MORE REFUND OF THE LUMP-SUM LEAVE PAYMENT--- BASED UPON THE AMOUNT REFUNDABLE AS OF THE DATE OF REEMPLOYMENT--- WOULD BE MANDATORY. AS TO THE USE OF RECREDITED LEAVE BY SUCH AN EMPLOYEE DURING THE 90-DAY QUALIFYING PERIOD, THE PROVISION IN SECTION 203 (I) 65 STAT. 681 APPEARS CONCERNED WITH THE EARNING OF LEAVE AND HAS NO EFFECT UPON THE GRANTING OR USE OF LEAVE EARNED UNDER ANOTHER APPOINTMENT BUT RECREDITED TO THE EMPLOYEE IN HIS CURRENT EMPLOYMENT BECAUSE OF THE OPERATION OF THE LUMP- SUM LEAVE ACT.

IN REGARD TO QUESTION 6C IT PREVIOUSLY HAS BEEN INDICATED IN THE ANSWER TO QUESTION 6A THAT THE 90-DAY QUALIFYING PERIOD REFERS TO EMPLOYMENT AND NOT ACTUAL SERVICE; ALSO, THAT A "BREAK IN SERVICE" MEANS A SEPARATION FROM THE ROLLS FOR ONE OR MORE WORKDAYS. ACCORDINGLY, YOUR ASSUMPTION THAT LEAVE WITHOUT PAY WOULD NOT BE A "BREAK IN SERVICE" EITHER DURING THE QUALIFYING 90-DAY PERIOD OR AT ANY OTHER TIME IS CORRECT.

QUESTIONS 7A, B, C

(A) MAY PROVISION BE MADE BY REGULATION FOR PRO-RATA ACCRUAL OF LEAVE FOR A PERIOD OF LESS THAN TWO WEEKS IMMEDIATELY FOLLOWING JANUARY 6, 1952, FOR EMPLOYEES WHOSE BI-WEEKLY PAY PERIOD BEGINS JANUARY 13, OR ANOTHER DATE OTHER THAN JANUARY 6?

(B) MAY SIMILAR PROVISION BE MADE FOR PRO-RATA ACCRUAL WHEN AN EMPLOYEE TRANSFERS BETWEEN POSITIONS WITH DIFFERENT BI-WEEKLY PAY PERIODS? MAY THE SAME PRINCIPLE BE APPLIED WHERE A SEMI-MONTHLY PAY PERIOD IS INVOLVED?

(C) FOR TEMPORARY EMPLOYEES WHOSE "MONTH OF SERVICE" UNDER THE 1936 LEAVE ACTS WOULD NOT BE COMPLETED UNTIL THE CLOSE OF BUSINESS JANUARY 6 OR LATER, MAY PRO-RATED LEAVE CREDIT OR ANY LEAVE CREDIT BE GIVEN FOR THE UNCOMPLETED MONTH WHICH THE CHANGE IN THE LEAVE LAW WILL PREVENT THEM FROM COMPLETING?

THE APPLICABLE SECTIONS OF THE ACT IN RESPECT OF QUESTIONS 7A AND 7B ARE SECTIONS 203 (A), 65 STAT. 680, AND 204 (A), 65 STAT. 681, WHICH PROVIDE AMONG OTHER THINGS, THAT ANNUAL AND SICK LEAVE WILL ACCRUE UPON THE BASIS OF A FULL BI-WEEKLY PAY PERIOD OR A CORRESPONDING PERIOD IN THE CASE OF AN EMPLOYEE NOT PAID UPON A BI-WEEKLY PAY PERIOD BASIS. AS TO WHETHER SUCH PROVISIONS WOULD PRECLUDE THE PRO-RATA CREDIT OF LEAVE IN THE MANNER SUGGESTED IN THESE TWO QUESTIONS (7A AND B), ATTENTION IS INVITED TO THE FOLLOWING COMMENT CONTAINED ON PAGE 6, SENATE REPORT NO. 546, 82D CONGRESS, TO ACCOMPANY S. 832, A BILL SUBSTANTIALLY IDENTICAL WITH THAT FINALLY INCORPORATED INTO S. 1046:

IN THE INTEREST OF ECONOMIES OF ADMINISTRATION, IT IS PROVIDED THAT LEAVE SHALL NOT BE EARNED FOR PERIODS OF LESS THAN A FULL BIWEEKLY PAY PERIOD. SPECIFICALLY THIS MEANS THAT AN EMPLOYEE WHO ENTERS OR LEAVES THE FEDERAL SERVICE DURING A BIWEEKLY PAY PERIOD WILL RECEIVE NO LEAVE FOR THE TIME WORKED DURING SUCH INCOMPLETE BIWEEKLY PAY PERIOD. LIKEWISE, PARAGRAPH (B) OF SECTION 3 PROVIDES THAT ANY CHANGE IN THE RATE OF ACCRUAL OF LEAVE BY AN EMPLOYEE SHALL TAKE EFFECT AT THE BEGINNING OF THE NEXT SUCCEEDING PAY PERIOD FOLLOWING THE ONE IN WHICH THE EMPLOYEE COMPLETES THE PRESCRIBED PERIOD OF SERVICE.

IN VIEW OF THAT COMMENT, IT IS NOT BELIEVED THE PROVISIONS OF SECTION 203 (A) WERE INTENDED TO DEPRIVE EMPLOYEES OF ANY LEAVE WHATSOEVER FOR THE PERIOD BETWEEN JANUARY 6, 1952, THE EFFECTIVE DATE OF THE ACT, AND ANY OTHER LATER DATE ON WHICH A BI-WEEKLY PAY PERIOD BEGINS AFTER JANUARY 6, 1952, MERELY BECAUSE THEIR PAY PERIODS MIGHT BEGIN AT A DATE LATER THAN JANUARY 6, NOR TO DEPRIVE THEM OF LEAVE WHEN THEY TRANSFER BETWEEN POSITIONS WITH DIFFERENT PAY PERIODS. ACCORDINGLY, QUESTIONS 7A AND 7B ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 7C INVOLVES THOSE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, AS AMENDED, WHICH STATE THAT TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS OF ANNUAL LEAVE AND ONE AND ONE-FOURTH DAYS OF SICK LEAVE FOR EACH MONTH OF SERVICE. THERE DOUBTLESS WILL BE MANY CASES WHERE TEMPORARY EMPLOYEES WILL BEGIN A MONTH OF SERVICE AFTER DECEMBER 6, 1951, WHICH CANNOT BE COMPLETED FOR LEAVE ACCRUAL PURPOSES UNTIL AFTER THE REPEAL OF THE 1936 STATUTES EFFECTIVE JANUARY 6, 1952. IN VIEW OF THE CIRCUMSTANCES HERE INVOLVED IT IS BELIEVED THE PRO-RATA CREDIT OF LEAVE UP TO JANUARY 6, 1952, MAY BE GIVEN TO SUCH EMPLOYEE WITHOUT DOING VIOLENCE TO THE 1936 LEAVE ACTS PROVIDED THEY BE REQUIRED TO COMPLETE THEIR MONTH OF SERVICE ON OR AFTER JANUARY 6, 1952.

QUESTION 8

THE ATTACHMENT REFERRED TO CONTAINS TWO PROPOSED REGULATIONS WHICH DO NOT APPEAR TO INVOLVE ANY DOUBTFUL INTERPRETATION. ONE WOULD PRESCRIBE THAT FOR EMPLOYEES ON A BI-WEEKLY PAY PERIOD, ANY HOURS IN PAY STATUS IN EXCESS OF FORTY IN ANY ADMINISTRATIVE WORK-WEEK SHALL BE DISREGARDED IN COMPUTING LEAVE EARNINGS, AND THAT FOR THOSE ON A SEMI MONTHLY PAY PERIOD, ANY HOURS IN EXCESS OF THE NORMAL WORKING HOURS IN ANY SEMI-MONTHLY PAY PERIOD SHALL BE DISREGARDED. THE OTHER WOULD DEFINE THE PART-TIME EMPLOYEES WHO ARE ENTITLED TO EARN LEAVE AS THOSE "FOR WHOM THERE HAS BEEN ESTABLISHED IN ADVANCE A REGULAR TOUR OF DUTY ON ONE OR MORE DAYS DURING EACH ADMINISTRATIVE WORK WEEK, AND HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT," AND WOULD PROVIDE THAT SUCH EMPLOYEES WITH LESS THAN THREE YEARS OF SERVICE WOULD EARN ONE HOUR OF ANNUAL LEAVE FOR EACH TWENTY HOURS IN A PAY STATUS, THOSE WITH THREE BUT LESS THAN FIFTEEN YEARS WOULD EARN ONE HOUR OF ANNUAL LEAVE FOR EACH THIRTEEN HOURS IN A PAY STATUS, THOSE WITH FIFTEEN YEARS OR MORE WOULD EARN ONE HOUR OF ANNUAL LEAVE FOR EACH TEN HOURS IN A PAY STATUS, AND THAT ALL SUCH EMPLOYEES WOULD EARN ONE HOUR OF SICK LEAVE FOR EACH TWENTY HOURS IN A PAY STATUS. WOULD SUCH PROPOSED REGULATIONS BE SUBJECT TO ANY OBJECTION?

NO OBJECTION IS PERCEIVED TO THE REGULATIONS TO WHICH REFERENCE IS MADE IN THIS QUESTION.

QUESTION 9

SECTION 203 (H) PROVIDES THAT "THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, INCLUDING SUCH LEAVE AS WILL ACCRUE TO ANY OFFICER OR EMPLOYEE DURING THE YEAR, MAY BE GRANTED AT ANY TIME DURING SUCH YEAR AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE.' WHEN THE END OF THE CALENDAR YEAR DOES NOT COINCIDE EXACTLY WITH THE END OF A PAY PERIOD, DOES ,SUCH LEAVE AS WILL ACCRUE DURING THE YEAR" INCLUDE PRO-RATA LEAVE FOR THE LAST PARTIAL PAY PERIOD THROUGH DECEMBER 31, OR IS NO LEAVE CONSIDERED TO ACCRUE FOR SUCH PAY PERIOD UNTIL ITS COMPLETION IN THE NEXT CALENDAR YEAR?

IN THE LIGHT OF THE FACT THAT THE ACT PROVIDES FOR ACCRUAL OF LEAVE ON A PAY PERIOD BASIS--- THE AMOUNT OF SUCH LEAVE, NAMELY, 26, 20, OR 13 DAYS, BEING EARNED AT A RATE DETERMINED BY DIVIDING SUCH VARYING AMOUNTS BY 26 PAY PERIODS--- IT IS BELIEVED THAT WHEN THE WORDS "SUCH AS LEAVE WILL * * * ACCRUE DURING THE YEAR" WERE USED IN SECTION 203 (H), 65 STAT, 681, THE CONGRESS HAD IN MIND THE LEAVE THAT WOULD ACCRUE DURING 26 PAY PERIODS. HENCE, IN ORDER TO ACCOMPLISH THAT PURPOSE, IT WOULD APPEAR PROPER TO PROVIDE BY REGULATION THAT EMPLOYEES MAY BE CREDITED AT THE BEGINNING OF THE FIRST PAY PERIOD IN A CALENDAR YEAR WITH SUCH ANNUAL LEAVE AS WILL ACCRUE IN 26 PAY PERIODS (LEAVE YEAR). SEE PAGE 6 OF SENATE REPORT 546, SUPRA. ..END :