Washington, DC

U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



09/11/2018

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Date

The claimant is employed by the Department of Commerce (DOC) in the National Institute of Standards and Technology (NIST) in Gaithersburg, Maryland.  She seeks the restoration of 34.75 forfeited annual leave hours for the 2014 leave year.  The U.S. Office of Personnel Management (OPM) received the claim request on January 24, 2017, and the agency administrative report (AAR) on November 6, 2017.  For the reasons discussed herein, the claim is granted.

On December 17, 2013, the claimant suffered a compensable on-the-job injury which resulted in a torn rotator cuff.  In early 2014, the claimant’s physician recommended she undergo surgery for the injury which would require an extended period of recovery away from work.  On August 21, 2014, pursuant to the regulatory requirements at 5 CFR 630.308(a), the claimant scheduled in writing the use of 40 hours of annual leave which was subject to forfeiture at the close of the 2014 leave year.  Her leave request was approved on August 25, 2014.  On September 9, 2014, the claimant had surgery for the aforementioned injury.  Thereafter, her physician advised her not to return to work until December 9, 2014.  Unfortunately, even after attending regular physical therapy sessions, the claimant did not recover as soon as expected and required additional time off from work.  Thus, from December 14, 2014, through January 10, 2015, she was placed on Leave Without Pay (LWOP) in connection to being awarded and receiving workers’ compensation from the Department of Labor, Office of Worker’s Compensation Program (OWCP) under the Federal Employees’ Compensation Act (FECA).  Because of the compensation award, she did not use the scheduled annual leave before the end of the 2014 leave year.  As a result, she forfeited that leave.  The claimant returned to work full-time January 20, 2015.

In February 2015, the claimant submitted a request for restoration of forfeited annual leave to her servicing Human Resources Office (HRO).  On March 17, 2016, the claimant received an email from an HRO staff member stating her request for annual leave restoration was denied because she could have used her annual leave subject to forfeiture instead of receiving workers’ compensation and that after her workers’ compensation case was adjudicated she could have then bought back her annual leave.  The email further states:  “[u]nfortunately, regulations do not cite OWCP as one of the reasons forfeited annual leave can be restored.  For details, please review the DOC policy.”  The claimant quickly challenged the agency’s findings and arranged a meeting with the Chief of Operations and Strategic Programs Division to grieve the denial.  In response, on April 22, 2016, the claimant received an email from the Division Chief sustaining the denial of her annual leave restoration request.  The email states that although the claimant properly followed annual leave restoration procedures, her request does not meet the eligibility requirements because her sickness is the result of “a Worker’s Compensation injury.”  The email goes on to state the claimant could not receive dual compensation from NIST and DOL and she could have stopped using workers’ compensation and instead used her annual leave subject to forfeiture.  The email further states:

There is no provision that allows for restoration of leave related to your circumstances.  The fact that you were unaware that the 40 hours of leave scheduled for December 2014 and January 2015, did not meet the conditions for restoration of leave, the mistake of law or fact does not warrant approval of this request.

On May 20, 2016, the Division Chief notified the claimant that she could file an administrative grievance with the Director, Office of Human Resources Management (OHRM) if she was not satisfied with the decision.  On June 9, 2016, the claimant emailed her administrative grievance to the Director, OHRM.  On June 10, 2016, the claimant received a notification letter stating her grievance was rejected because it was not timely filed.

On December 20, 2016, the claimant received an agency-level decision regarding her leave restoration request from the Director, OHRM.  The decision states that pursuant to statute and DOC policy, an agency has discretion in authorizing an employee’s restoration of forfeited annual leave.  The decision further states the circumstances of the claimant’s case do not warrant leave restoration, and therefore, the request is denied.

The agency explains in its denial letter:

In your specific case, although you did schedule the use of your annual leave prior to the end of the leave year and it was ultimately not used due to illness, I do not believe your circumstances warrant restoration since:

• your surgery was a planned surgery to address an on-the-job injury that had occurred the previous year, in December 2013 and therefore, could have been reasonably foreseen in the eight preceding months of the 2014 leave year;

• you did not reschedule any of the annual leave not used due to illness; and

• you recovered soon enough to use at least 20 hours of the forfeited annual leave before the end of the leave year, leaving only a maximum of 14.75 hours of possible restoration.

In its AAR, the agency states the claimant could have requested guidance concerning leave forfeiture from appropriate HRO staff members, accessed information on the NIST intranet and DOC website, and the agency determines whether or not an employee’s circumstances meet leave restoration requirements.

Forfeited annual leave must be restored under the circumstances set out in title 5, United States Code (U.S.C.) section §6304(d)(1), which provides:

(d)(1) Annual leave which is lost by operation of this section because of-

(A) administrative error when the error causes a loss of annual leave otherwise accruable…;

(B) exigencies of the public business when the annual leave was scheduled in advance; or

(C) sickness of the employee when the annual leave was scheduled in advance;

shall be restored to the employee.

In conjunction with this statute, title 5, Code of Federal Regulations (CFR) 630.308(a) sets forth the requirements for scheduling annual leave and states:

(a) Except as provided in paragraph (b) of this section and §§630.310 and 630.311, before annual leave forfeited under 5 U.S.C. 6304 may be considered for restoration under that section, use of the annual leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year.

The agency-level decision denying the claimant’s leave restoration request confirms that she scheduled her annual leave subject to forfeiture in advance.  The claimant provided a copy of the annual leave request which was submitted on August 21, 2014, and approved by her supervisor on August 25, 2014.  The leave was to be taken in late December, 2014, and early January, 2015, during the 2014 leave year.  Thus, the claimant meets the scheduling requirements found in 5 U.S.C. §6304(d)(1)(C), and 5 CFR 630.308(a), in that she is considered to have scheduled her annual leave subject to forfeiture in writing before the start of the third biweekly pay period prior to the end of the leave year.

The DOC’s annual leave policy states, in part:

Heads of operating units may authorize restoration of annual leave (to eligible leave earning employees, including [senior executive service] SES members) which is in excess of an individual employee’s maximum accumulation for carryover into a new leave year when the forfeiture of leave is caused by illness, administrative error, an exigency (or extended exigency) of the public business.  This authority may be redelegated subject to the following considerations:

….Illness.  Annual leave which was properly scheduled (or rescheduled) and approved for use before the end of the leave year and which must be forfeited solely because of an employee’s illness occurring or lasting so late in the leave year that the leave could not be used shall be restored in the amount the employee was prevented from using.

….An approving official shall not restore leave forfeited because of illness when:

• The employee could have reasonably foreseen the absence which would preclude the use of excess annual leave as in planned surgery or normal maternity cases;

• The employee neglects to reschedule annual leave not used because of illness;

• An employee recovers soon enough to use excess annual leave; or

• The illness was that of a family member and not the employees.

We believe that the claimant’s agency has adopted a restrictive view of the scheduling requirement of subsection 6304(d)(1)(C) which is not required by either the statutory language or legislative history.  The legislative history of that section shows that Congress intended that section 6304(d)(1) would authorize the restoration of leave lost through no fault of the employee.  See H.Rep. No. 93-456, 93rd Cong. 1st Sess. 4 (1973); B-182608, April 23, 1979, 58 Comp. Gen 435. 

With regard to the agency’s view that the claimant had the option of substituting annual leave for workers’ compensation, the legislative history shows that Congress specifically rejected the view that an employee should be required to use annual leave while he or she is sick in order to avoid loss of annual leave.  Id.  On page 5 of H.R. Rep. No. 93-456, it is stated that such a view ignored the basic purpose of annual leave, which is to give an employee time for vacation or other purposes not related to illness.  It would appear at odds with Congress’ intent to interpret the leave restoration provisions of 5 U.S.C. 6304(d)(1)(C) so narrowly as to preclude the restoration of annual leave scheduled in advance by an employee who is receiving workers’ compensation due to an on-the-job injury.  To require such an employee to interrupt her use of workers’ compensation in order to use annual leave to avoid forfeiture would appear out of step with statutory language, legislative history, and Congressional intent.  This exact issue was settled in an earlier decision issued by the Comptroller General of the United States.  See Bruce F.  Scott, B-218728, December 10, 1981.  That decision involved an employee who sustained a compensable on-the-job injury resulting in a prolonged recuperation period which extended beyond the end of the leave year.  The fact that the employee scheduled annual leave after an injury, with the knowledge that he likely would be unable to use it, did not preclude restoration of the leave.  The employee, who was covered by workers' compensation during the period, was not obligated to use the scheduled annual leave to avoid forfeiture.  Bruce F.  Scott, B-218728, December 10, 1981.                 

In view of the foregoing, we have determined in this instance that forfeited annual leave may be restored under 5 U.S.C. 6304(d)(1)(C) where such leave has been scheduled in advance in accordance with 5 CFR 630.308.  Accordingly, as the record reflects that the claimant properly scheduled her annual leave which was subject to forfeiture, the agency shall restore such leave pursuant to 5 U.S.C. 6304(d)(1)(C).   

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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