BNUMBER:  B-260194
DATE:  October 17, 1995
TITLE:  Cindy Chapman-Per Diem-Incapacitated Due to
Childbirth While on Temporary Duty

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Matter of:Cindy Chapman-Per Diem-Incapacitated Due to Childbirth While 
          on Temporary Duty

File:     B-260194

Date:     October 17, 1995

DIGEST

Under Federal Travel Regulation, provisions applicable when temporary 
duty is interrupted due to incapacitating illness or injury, an 
employee on temporary duty travel who underwent childbirth at the 
temporary duty station may be paid per diem for the period she was in 
the hospital and at the temporary duty station after being discharged 
from the hospital for a reasonable time period while she is recovering 
from childbirth and "incapacitated" from performing her duty, provided 
the agency grants approval.  The per diem may continue for a 
reasonable period, normally not to exceed 14 days, which may be 
extended by the agency. 

DECISION

The Federal Highway Administration, Department of Transportation, 
requests a decision concerning the payment of per diem to an employee 
who underwent childbirth at a temporary duty station.[1]  As explained 
below, the employee's per diem may be continued while she is in the 
hospital, and also for a reasonable time after she is discharged while 
she is incapacitated from performing her duty.

BACKGROUND
  
Ms. Cindy Chapman, an employee of the Federal Highway Administration, 
whose official duty station was Lakewood, Colorado, began an extended 
temporary duty assignment at Dobbins, California, on June 1, 1993.  
Ms. Chapman entered a hospital at the temporary duty station on June 
18, gave birth, and was discharged from the hospital on June 19, 1993.  
Rather than return to her permanent duty station after leaving the 
hospital, Ms. Chapman remained at the temporary duty station on 
approved sick leave while she was recovering from childbirth.  She has 
submitted a claim for 14 days' per diem for this period.  The agency 
notes that the cost to have returned Ms. Chapman to her official duty 
station in Colorado would have approximated 14ï¿½ days of per diem at 
the rate applicable in California.

OPINION

Payment of per diem to an employee whose temporary duty assignment is 
interrupted because of an incapacitating illness or injury is allowed 
under Part 301-12 of the Federal Travel Regulation (FTR).[2]  We have 
recognized in another context that events related to childbirth may 
come within the provisions of Part 301-12.  Lucy B. Cusick, B-223872, 
Nov. 25, 1986.  Similarly, we believe that Ms. Chapman's incapacity to 
perform her duties due to childbirth falls within these provisions.  
Thus, the question in this case is how the per diem provisions in Part 
301-12 apply to Ms. Chapman's situation.

Section 301-12.5(a) of the FTR states that when an employee interrupts 
a temporary duty assignment because of an incapacitating illness or 
injury and takes leave of any kind, the employee shall be paid per 
diem for the location of the interruption "for a reasonable period, 
normally not to exceed 14 calendar days (including fractional days) 
for any one period of absence.  However, a longer period may be 
approved by the employee's agency if justified by the circumstances of 
a particular case."

The regulations also provide that agencies may authorize or approve 
per diem based on exigencies of the employee's personal situation and 
the agency mission, and agencies are directed to prescribe written 
policies and procedures to govern its authorization and approvals 
under Part 301-12.  FTR  301-12.2.  Although the agency in this case 
has prescribed such policies and procedures, the agency advises that 
they do not specifically determine the period of incapacity due to 
childbirth; however, it is clear that generally authorizing payment of 
per diem and the determination of the length of incapacitation from 
duty are matters primarily for the agency to determine, within the 
parameters of the regulation and any related policies it may have 
prescribed.

The periods of incapacity to perform temporary duty for employees 
undergoing childbirth may vary depending on the individual and the 
circumstances of the childbirth.  Thus, it appears that each situation 
should be evaluated by the agency involved based upon the information 
available, as provided by the employee's statement, a doctor's report, 
the length of hospital stay, etc.  As noted above, this is primarily a 
determination for the agency to make.  In Ms. Chapman's case, we would 
have no objection to the payment of her claim for 14 days of per diem 
if the appropriate agency official approves such payment upon a 
finding that she was incapacitated from performing temporary duty for 
that period.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. The request was submitted by the Authorized Certifying Officer, 
Central Federal Lands Highway Division, Denver, Colorado.

2. These regulations implement 5 U.S.C.  5702, subsection (b)(3) of 
which provides authority to continue per diem payments under certain 
circumstances when an employee's temporary duty is interrupted because 
of incapaciting illness or injury which is not due to the employee's 
misconduct.