BNUMBER: B-271561.2
DATE: July 26, 1996
TITLE: Voluntary Leave Transfer Program-Disability Retirement
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Matter of:Voluntary Leave Transfer Program-Disability Retirement
File: B-271561.2
Date:July 26, 1996
DIGEST
Where an employee has been in a leave status for over a year due to a
serious illness from which he is not expected to recover sufficiently
to return to duty, the agency should take steps to initiate disability
retirement for him rather than allow him to remain on the roles on
annual leave to use up the 10,000 hours of leave transferred to him
under the Voluntary Leave Transfer Program. The program was not
established as a substitute for disability retirement. Upon approval
of disability retirement or upon separation, the remaining unused
transferred leave must be returned to the donors, and it may not be
credited toward the employee's time in service for retirement
purposes.
DECISION
This action is in response to a request from the Inspector General of
the Department of Transportation for an opinion concerning the
application of the leave transfer program and the disability
retirement program in the case of an employee of the Inspector
General's Office who suffered a serious illness and has been in sick
and annual leave statuses since May 1995, and who is not expected to
recover sufficiently to return to duty.
Background
The Inspector General states that in October 1995, the employee's
participation in the leave transfer program was approved based on a
medical certification from his physician citing the employee's
significant improvement and the need to provide him with as much
opportunity as possible to recover. Since then, over 10,000 hours of
annual leave have been donated to him. The Inspector General reports
that this would be more than sufficient to allow the employee, a
criminal investigator, to remain on annual leave until he reaches
retirement eligibility as a law enforcement officer in October 1999,
and there is an expectation on the part of the employee and his spouse
that he will be permitted to remain in leave status up to that date
and beyond.
The Inspector General states that the employee's current condition is
such that he is unable to perform the duties of his position and he is
not expected to improve sufficiently to allow him to return to duty in
the future. The Inspector General further states that to permit the
employee to remain in such a leave status for the contemplated period
would create a hardship for the agency since the employee's position
could not be filled and he could not contribute to the mission of the
agency. Our opinion is therefore requested on several questions
concerning whether, in these circumstances, the voluntary leave
transfer program regulations permit the agency to terminate the
employee's medical emergency status, which allows him to continue to
receive and use donated leave under the program, and initiate
disability retirement for him.
The Inspector General notes that the regulations provide no guidance
with respect to the duration of a medical emergency under the leave
transfer program, particularly as to whether an employee in the
described circumstances remains in such an emergency status although
over a year has passed since the initial onset of the disabling
illness. The Inspector General therefore asks us to determine whether
the employee's situation no longer constitutes a medical emergency
under the program, and if we determine that it no longer constitutes
such an emergency, she asks--
1. is the agency required, under the regulations and based on
the impact to its operations, to initiate disability retirement for
the employee even though the agency has received leave donations
sufficient to keep the employee in a leave status until the date of
his retirement eligibility and beyond, and
2. may the employee immediately claim all of the donated leave
in a lump sum and apply the leave toward his time in service for
retirement purposes?
Analysis and Conclusions
Pursuant to 5 U.S.C. sec. 6332, the Office of Personnel Management (OPM)
has established the Voluntary Leave Transfer Program, as provided for
by 5 U.S.C. sec. 6331-6340, to allow employees to transfer unused
accrued annual leave to another employee who needs such leave because
of a medical emergency. See OPM's implementing regulations in 5
C.F.R. Part 630, Subpart I.
The legislative history of Public Law 100-566, 102 Stat. 2834 (1988),
which initially enacted 5 U.S.C. sec. 6331-6340, indicates that Congress
recognized that federal employees have no short-term disability
coverage as such and must rely on sick leave for short-term illnesses
and the disability provisions of the federal retirement systems for
long-term illnesses. Congress intended the leave transfer program to
close the gap in such coverage. See S. Rep. No. 100-437, 100th Cong.
3 (1988), reprinted in 1988 U.S.C.C.A.N. 3688. The legislative
history also states that the program "was not meant to be a substitute
for disability retirement, and agencies should encourage employees to
apply for disability retirement if circumstances warrant it," and that
"once the application [for disability retirement] has been approved,
the leave recipient may not receive or use additional transferred
leave and the personal emergency is considered terminated." S. Rep.
No. 100-437, supra, 7, 1988 U.S.C.C.A.N. 3693.
In accordance with the statutory provisions, the regulations define
"medical emergency" to mean:
"a medical condition of an employee or a family member of such
employee that is likely to require an employee's absence from
duty for a prolonged period of time and to result in a
substantial loss of income to the employee because of the
unavailability of paid leave" 5 C.F.R. sec. 630.903 (1995),
implementing 5 U.S.C. sec. 6331(4).
The termination of a medical emergency is governed by 5 C.F.R. sec.
630.910, implementing 5 U.S.C. sec. 6335. Section 630.910(a) provides
several circumstances under which a medical emergency shall terminate,
including as is pertinent to this case, when the leave recipient's
federal service is terminated, or at the end of the biweekly pay
period in which the leave recipient's employing agency receives notice
that OPM has approved an application for disability retirement for the
leave recipient under the Civil Service Retirement System or the
Federal Employees' Retirement System. The regulation also provides
that the employing agency shall continuously monitor the status of the
medical emergency affecting the leave recipient to ensure that the
leave recipient continues to be affected by a medical emergency. 5
C.F.R. sec. 630.910(b).
In addition, 5 C.F.R. sec. 630.910(c) provides that when a medical
emergency terminates, no further requests for transfer of annual leave
to the leave recipient may granted, and any unused transferred leave
remaining to the credit of the leave recipient shall be restored to
the leave donors under 5 C.F.R. sec. 630.911. This provision implements
5 U.S.C. sec. 6335(b), which provides that the employing agency shall,
consistent with guidelines prescribed by OPM, establish procedures to
ensure that a leave recipient "is not permitted to use or receive any
transferred leave" after the medical emergency terminates. See also,
Mary Dawson, 70 Comp. Gen. 432 (1991).
In response to the Inspector General's first question, while
apparently the employee continues to be in a "medical emergency"
status as defined in the statute and regulation cited above, it is our
view that the law and regulations do not require the agency to retain
the employee indefinitely on its roles in a leave status merely
because a large amount of leave has been donated to him and he prefers
to remain in that status. In fact, to do so, rather than initiate
disability retirement procedures, would appear contrary to the purpose
of the program as expressed in the legislative history referred to
above. The regulations clearly contemplate that the agency should
monitor the employee's condition. When it appears that it is unlikely
that he will recover sufficiently to resume his duties, particularly
when he has been unable to work for such a long period, as in this
case, the employee should be encouraged to apply for disability
retirement and he should be provided assistance in doing so. As is
noted above, upon the agency's receipt of notice that OPM has approved
the disability retirement application or upon the employee's
separation, the medical emergency terminates. 5 C.F.R. sec. 630.910(a),
supra.
We note that both the Federal Employees' Retirement System and the
Civil Service Retirement System provide for disability retirement for
individuals who have become disabled because of a medical condition
resulting in a service deficiency in performance, conduct, or
attendance, and whose disabling medical condition is expected to last
at least a year from the date the application for disability
retirement is filed. 5 C.F.R. sec. 831.1203 and 844.103. The
regulations also provide for the agency to file a disability
retirement application on behalf of an employee in certain
circumstances. 5 C.F.R. sec. 831.1205 and 844.202. However, the
administration of these retirement systems are under the jurisdiction
of OPM, and we suggest therefore that the Inspector General consult
with OPM regarding the appropriate steps to take in this case to
initiate disability retirement for the employee.
In response to the second question, whether the employee may apply the
unused transferred annual leave in a lump sum toward his time in
service for retirement purposes, we know of no authority for crediting
annual leave for such a purpose.[1]
In any event, as is noted above, upon termination of the medical
emergency, any unused transferred annual leave remaining to the credit
of the leave recipient must be restored to the leave donors, as
provided by 5 C.F.R. sec. 630.910(c) and 630.911. Therefore, this
question is answered in the negative.
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. The determinations of creditable service for retirement under the
Civil Service Retirement System and the Federal Employees' Retirement
System are matters within the jurisdiction of OPM. 5 C.F.R. sec.
831.101 and 841.105. While provision is made for crediting unused
sick leave in the computation of annuities under the Civil Service
Retirement System (5 C.F.R. sec. 831.302), no provision is made for
crediting unused annual leave under either system. 5 C.F.R. Part 831,
Subpart C, and Part 842, Subpart C.