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This amended decision supersedes an earlier decision, dated September 7, 2000, which was rendered by the Office of Personnel Management (OPM). The previous decision stated that OPM did not have jurisdiction to consider this claim since it appeared to be subject to a negotiated grievance procedure under a collective bargaining agreement between the employees agency and labor union. However, additional documentation provided by the agency showed a provision within the Master Labor-Management Agreement between the Joint Council of Unions and the agency, which states that disputes concerning whether forfeited leave can be restored shall be submitted only to the Comptroller General (now OPM) for final decision. Unfortunately, this vital piece of information was not submitted with the agency's initial administrative report, submitted to OPM on August 9, 2000 and received on August 15, 2000. Therefore, our initial decision was based on the information on hand. The agency provided this additional information on October 2, 2000 and the claim was reopened.
The claimant, an employee with the [agency], seeks restoration of 148 hours of annual leave, which were forfeited at the end of the 1999 leave year. We acknowledged receipt of this claim on June 28, 2000 and requested an administrative report from the agency on July 13, 2000. For the reasons discussed herein, the claim is denied.
As explained by the claimant, she sustained a work-related injury on November 17, 1999. She came to work on November 18 and 19, 1999. On November 20, 1999, she sought medical attention and was instructed to immediately go to bed until further notice. Although she intended to use her 148 hours of annual leave prior to the end of the calendar year, she was not able to do so because of her injury.
The claimant provides no documentation to show that she had scheduled the use of her annual leave in advance of her injury or in advance of her doctors restriction. She states that approval of the use of her leave by her supervisor had not been required in the past.
Although this may be true, the agency did provide documentation, which showed that agency employees were informed that they must request use of their annual leave prior to November 20, 1999. This was true for the year in question in the form of two agency notices, #645-316 Scheduling of Annual Leave, dated February 19, 1999, and #645-318 Restoration of Annual Leave for the 1999 Leave Year, dated August 17, 1999. Similar notices were distributed for the four previous years as well.
The provision governing the issue raised in this claim is found in Title II of the Civilian Personnel Law Manual, Chapter 2, Subpart G, which states the following:
Leave which is forfeited due to exigencies of public business or sickness of the employee must have been scheduled in writing in advance to be considered for restoration. See 5 USC 6304(d)(1)(B) and (C), and 5 CFR 630.308. This requirement (that leave be scheduled in advance) is statutory and may not be waived or modified even where extenuating circumstances may exist. 56 Comp. Gen. 470(1977); and B-193567, May 24, 1979.
The agency has reported that between August 17, 1999 (the date of agency notice #645-318 Restoration of Annual Leave for the 1999 Leave Year) and November 17, 2000, (the date that she sustained her injury at work), the claimant was on duty each work day except for 12 hours of annual leave on October 7 and 8, 1999. Although the claimant did not know the extent of her injury until November 20, she still had plenty of ample time before her injury to schedule her annual leave and two days following her injury to do so as well. However, the agency has no documentation nor does the claimant provide documentation to show that she scheduled the use of her annual leave in advance.
Having failed to schedule her leave prior to the regulatory deadline, the claimant's forfeited leave may not be restored. See William K. Knotts, B-248232, September 22, 1992. The scheduling requirement may not be waived or modified even though extenuating circumstances may have been present. See George H. Mikos, B-245117, January 21, 1992. The claim is denied.
This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.