Office of the General Counsel

Matter of: [XXX]
File: S9700422

OPM Contact: Jo-Ann Chabot

A former federal employee filed a claim to substitute sick leave for annual leave retroactively from October 22, 1994, when Congress enacted the Federal Employees Family Friendly Leave Act (FEFFLA),^* until January 3, 1997, when the claimant resigned from federal service. The claim is denied for the reasons stated below.

FEFFLA, codified at 5 U.S.C. 6307(d), permits an employee to use up to 40 hours of sick leave per year to care for a family member who is ill, injured, or has a condition which, if the employee had such a condition, would justify the employee's use of sick leave. FEFFLA also permits an employee to use up to an additional 64 hours of sick leave in any year if the amount of sick leave credited to the employee does not fall below 80 hours.

In this case, the claimant said that she was not aware until a month before she left federal service that FEFFLA permitted her to take up to an additional 64 hours of sick leave every year. Consequently, the claimant said that she took annual leave to tend to her spouse's medical needs, except for 32 hours of sick leave that she took under FEFFLA in November 1996. She said in this regard that she was reluctant to use sick leave to care for her spouse because she did not know when she would need to use a large block of time for this purpose. In December 1996, the agency denied the claimant's request for a retroactive substitution of sick leave for annual leave. The claimant separated from federal service on January 3, 1997 with 322.5 hours in her sick leave account and 64.25 hours in her annual leave account.

Sick leave may not be substituted retroactively for annual leave that an agency has granted specifically at the employee's request and that the employee already has taken. Charles L. Mangers, B-191327 (November 8, 1978); Naval Supply Center, B-181087 (June 21, 1974). The accrual and accumulation of sick leave and annual leave are statutory entitlements. 5 U.S.C.  6303, 6304, and 6307. Substitution of sick leave for annual leave involves a change in a vested statutory right and such changes are not authorized in the absence of a law or a regulation that permits the substitution. Charles L. Mangers, supra; Naval Supply Center, supra. Section 6307 of title 5, United States Code, governs sick leave and does not include any provision for retroactively substituting sick leave for annual leave. The Office of Personnel Management's (OPM's) regulations at 5 C.F.R. Part 630, subpart D, implement 5 U.S.C. 6307 and include only one provision that authorizes the retroactive substitution of sick leave for annual leave. Section 630.409 of Title 5, Code of Federal Regulations, permits employees to substitute sick leave for the annual leave that they used between September 30, 1991 and September 30, 1994 for the purposes of adopting a child. This regulation is based on section 629(a)(1) of Public Law 103-329 (Treasury, Postal Service and General Government Appropriations Act, 1995) 108 Stat. 2382, 2423 (September 30, 1994). Thus, there is no statute or regulation that would authorize the retroactive substitution of sick leave for annual leave in the claimant's circumstances.

The claimant believes, nevertheless, that section 3 of Public Law 93-181 (December 14, 1973) provides authority for her annual leave to be restored. See 87 Stat. 705. She states in this regard that, even though she advised agency officials of her reasons for using the annual leave and of her reluctance to use sick leave, they did not advise her that FEFFLA permits employees in her circumstances to use an additional 64 hours of sick leave to care for family members. The claimant said that her sick leave balance always remained above 80 hours, and she would have taken sick leave instead of annual leave to care for her spouse if she had known about the additional 64 hours that FEFFLA permits. Thus, the claimant believes that the alleged failure of agency officials to advise her about the additional 64 hours of sick leave that she could have taken each year under FEFFLA is an administrative error that would qualify her for restoration of annual leave under section 3 of Public Law 93-181.

Public Law 93-181 does not apply to this claim because it permits an agency to restore the annual leave that an employee has lost under specific circumstances. Section 3 of that statute added subsection (d) to 5 U.S.C. 6304, which concerns an employee's accumulation of annual leave. Section 6304(a) permits an employee to carry a maximum of 30 days (or 240 hours) of unused annual leave from one leave year to the next leave year, and annual leave exceeding the prescribed 30 days is subject to forfeiture if the employee does not use it by the end of the leave year. Subsection (d) provides that annual leave which is lost "by operation of" section 6304(a) may be restored if the loss resulted from administrative error, the exigencies of public business when the annual leave was scheduled in advance, or the sickness of the employee when the annual leave was scheduled in advance. The claimant had a balance of 64.25 hours of annual leave when she separated from federal service on January 3, 1997. Therefore, the provisions in section 6304(d) for restoration of annual leave do not apply to the circumstances of this claim because none of her annual leave was subject to forfeiture under section 6304(a).

In view of the above, the claim for retroactive substitution of sick leave for annual leave is denied.