Office of the General Counsel

Date: November 16, 1998
Matter of: [xxx]
File Number: s9700543

OPM Contact: Murray M. Meeker

The claimant, a former employee of the [agency], requests that 192 hours of annual leave which was forfeited at the end of the 1996 leave year, be restored. For the reasons discussed herein, the claim is granted, subject to the conditions in this decision.

On June 10, 1996, the claimant filed a written request for annual leave for the period from November 29, 1996, to January 3, 1997. The claimant's supervisor approved the claimant's request. However, on November 28, 1996, the day before the claimant was scheduled to begin his annual leave, he became ill, and on November 29, 1996, the claimant notified his supervisor of his illness and requested that he be placed on sick leave instead of annual leave. The claimant's supervisor approved the request. The claimant subsequently submitted medical certification concerning his absence from November 29, 1996 through January 3, 1997, and on January 6, 1997, the claimant requested the restoration of the annual leave that he had forfeited at the end of the 1996 leave year.

On April 28, 1997, GPO denied the claimant's request, and on April 30, 1997, the claimant filed a grievance under the provisions of the negotiated grievance procedure of the Master Labor-Management Agreement between the Joint Council of Unions, GPO, and the United States Government Printing Office (Agreement). In accordance with the Agreement, when the claimant's grievance was denied at the third-step, the [xxx] Union, Local [xxx] (Union), had the opportunity to seek a decision from the General Accounting Office (GAO)⁽¹⁾ in lieu of arbitration. See Agreement, Article XIV, Section 9d

In general, the Office of Personnel Management (OPM) may not review a claim that is subject to a negotiated grievance procedure under a collective bargaining agreement. See Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990). However, as noted above, the Agreement expressly provides that disputes involving the restoration of forfeited annual leave shall be submitted to GAO. The agency acknowledges that the Agreement provides for the filing of leave restoration claims with OPM, but asserts that the union did not provide timely notice of its decision to file a claim, and, that, as a consequence, this office lacks jurisdiction to settle the claim. See Agreement, Article VII, Section 10d(1). Out of deference to the labor-relations process, we will not attempt to resolve this issue. Rather, this decision addresses only the merits of the employee's claim for the restoration of annual leave. If the agency ultimately decides to deny the claimant's restoration request on grounds related solely to the Agreement, the claimant, the union, and the agency may settle the matter in accordance with the terms of the Agreement.

The union reported that when the claimant became ill, he called his supervisor to notify him of the illness and asked that the annual leave be changed to sick leave. The union reported further that the requested sick leave was approved at that time in lieu of the scheduled annual leave. The agency concurred with this factual report, but explained that when the claimant sought restoration of his forfeited annual leave, it requested that the claimant provide additional information. See 5 C.F.R. 630.403 and Michael J. DeLeo, B-207444, October 20, 1982 (for an absence in excess of 3 workdays, or for a lesser period when determined necessary by an agency, the agency may require a medical certificate, or other administratively acceptable evidence as to the reason for the absence).

While the agency acted properly in requesting additional information, the agency acted improperly in determining that the additional documentation was inadequate. See Wade v. Department of the Navy, 829 F.2d 1106, 1109 (Fed. Cir. 1987) (agency was required to grant sick leave where the information provided by the employee met the requirements in 5 C.F.R. 630.401). Generally, where a physician's statement opines that an employee is unable to work, an agency's failure to approve the employee's leave request is not justified. Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987). It is not enough that an agency physician is dissatisfied with the explanation provided by the employee's physician, particularly where the agency physician has never examined the employee. See Wade v. Department of the Navy, supra, at 1108.

It is well established that an employee's annual leave shall be restored where the employee was prevented from using his annual leave because of illness. Indeed, 5 U.S.C. 6304(d)(1)(C) expressly provides that annual leave which is lost because of an employee's sickness shall be restored. Accord, Robert J. Stacklin, B-226927, September 25, 1987; Walter Schmidt, B-223238, February 27, 1987; and Bruce F. Scott, B-218728, December 10, 1985. See Gayden G. McMain, B-182040, November 27, 1974 (the purpose of P. Law No. 93-181, 5 U.S.C. 6304, was to cover situations where employees have scheduled annual leave in advance and sudden illness prevents its use).

Accordingly, the claim is granted. This settlement is final. No further administrative review is available within OPM.

¹ Effective June 30, 1996, GAO's claims adjudication authority to settle federal civilian employees' claims for compensation and leave was transferred to OPM. See 31 U.S.C. 3702, as amended by the General Accounting Office Act of 1996, Pub. L. No. 104-316,  202(n), 110 Stat. 3826.