Human Resources and Security Specialists should use this tool to determine the correct investigation level for any covered position within the U.S. Federal Government.
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OPM Contact: Jo-Ann Chabot
A federal employee filed a claim for restoration of annual leave
and sick leave. The claim is denied for the reasons stated
The claimant states that, after prevailing on her discrimination
complaint, she sought to recoup the annual and sick leave that she
had taken because of a stress-induced illness. She also states that
officials at her employing agency suggested that she file with the
Department of Labor a request for workers' compensation benefits.
The claimant states further that the Department of Labor denied her
request and she did not appeal that decision within the prescribed
thirty-day time limit. Finally, the claimant suggested that her
employing agency gave her erroneous advice concerning the proper
strategy for recouping the leave that she had taken.
The statutory provision for restoration of annual leave, 5
U.S.C. 6304(d), does not apply to the circumstances of this claim.
It applies to annual leave that an employee forfeits at the end of
the leave year, because his or her annual leave balance exceeds the
30-day maximum accumulation prescribed by statute. There is no
comparable statutory provision for restoration of sick leave. Thus,
under the circumstances that the claimant has described, there is
no statute that permits OPM to restore the annual or sick leave
that the claimant used for absences from work due to stress-related
Moreover, Department of Labor regulations describe circumstances
where leave may be used instead of workers' compensation benefits,
or to avoid an interruption of income while waiting for a decision
on a compensation claim. Section 10.202 of title 20, Code of
Federal Regulations (C.F.R.), provides that an employee may elect
to use accumulated annual or sick leave instead of claiming
continuation of pay, but the election is not irrevocable. Thus,
under section 10.202, the employee may subsequently request
continuation of pay in lieu of previously requested annual or sick
leave, provided the request is made within one year of the date
that the leave was used. In addition, 20 C.F.R. 10.310 provides
that an employee who sustains a job-related disability may use sick
or annual leave or both to avoid an interruption of income. Section
10.310 further provides that, if an employee uses leave during a
period of disability cause by an occupational disease or illness
and the employee's claim for compensation is approved, the employee
may buy back the used leave and have it recredited to his or her
account with the approval of his or her employing agency. It
appears in view of these provisions, as well as the circumstances
described by the claimant, that her employing agency did not err in
advising her to file a claim for workers' compensation to recoup
her annual and sick leave. However, even if the agency had erred in
advising the claimant, payments of money from the Federal Treasury
are limited to those authorized by law, and erroneous advice or
information provided by a government employee cannot bar the
government from denying benefits that are not otherwise permitted
by law. Office of Personnel
Management v. Richmond, 496 U.S. 414 (1990).
In view of the above, this claim is denied.