b. Question: Assuming that an employee occupying a position classified under the Classification Act of March 4, 1923 (not classed as "industrial" in paragraph 2d of letter of June 17, 1941) had 10 days to his credit on December 31, 1941, which he would otherwise permanently forfeit, may he be compensated from December 17, 1941, to December 31, 1941, a period of ten (10) working days, 2 Saturdays, 2 Sundays, and a holiday, or a total of 15 days?

Answer: If the employee made application for 10 days' leave on December 17, and this was denied him, then he would be paid as if on actual vacation from his position and would be paid for the 15 days, which would be the equivalent of 10 working days. However, if the employee has an excess of 10 days on the 31st of December, which he would automatically forfeit on the first of January, he would only be paid for the 10 days or the excess which he would forfeit. It would definitely be to the advantage of the employee to ask for his leave and then to work during the time that is denied him.

c. Question: The next to the last sentence of section 1 of Executive Order 8817 reads as follows: "Such compensation shall be only for the portion of the requested leave which otherwise would be forfeited and shall be, in addition to their regular pay, the equivalent of the pay they would have drawn for such leave:" It would seem that such instructions would cover a payment for 15 days for the 10 days that would be permanently forfeited but verification of this understanding is requested.

Answer: This was explained in the preceding paragraph. The employee would be paid as if he were actually on vacation for the period so denied him. d. Question: If an employee classed as "industrial" and under the provisions of section 2 of Executive Order No. 8817 is entitled to compensation for current annual leave due him and he, because of sickness or injury, makes application for additional leave, may such additional leave be applied against the accumulated leave to his credit?

Answer: There are no prohibitions in Public Law 200 [100] or Executive Order 8817 against granting leave because of sickness or injury in addition to compensated leave granted.

e. Question: If an employee classed as "industrial" has accrued leave of a considerable amount to his credit on the first of the calendar year and should he during the calendar year be compensated in lieu of current annual leave, and should then find it necessary to be absent for personal reasons, may he be paid for such absence, the total accrued annual leave to his credit on the first of the calendar year being reduced accordingly?

Answer: The employee may be given leave for urgent, unforeseen reasons to be charged against his accrued leave. This would be in addition to any compensated leave previously granted.

f. Question: If an employee classed as "industrial" has been compensated in lieu of current annual leave and later resigns or is discharged, may he be paid the amount of the accrued leave to his credit on the first of the calendar year?

Answer It is the practice to make separations of employees leaving the service by resignation effective at the expiration of any accrued leave to their credit, and they would receive their regular rate of pay for such leave. It is understood that it is within the discretion of the appointing officer to direct that the discharge of any employee for cause shall become effective immediately, the result being the forfeiture by the employee of his right to leave. Each case must, therefore, be governed by the facts and circumstances involved.

g. Question: It is noted that the last sentence in section 2 of Executive Order 8817 provides that the maximum leave for which compensation may be paid shall not exceed the amount of accrued leave to the credit of the employee at the time of the payment, and in any calendar year shall not exceed the current annual leave to which he is entitled during the calendar year and which he has not taken.

It may develop, however, that in some instances as covered by the above question an employee after being compensated in lieu of current annual leave will necessarily be absent for a longer period of time than would be covered by the difference between the 26 days accruing during a calendar year and the time for which he has been compensated. May he then be carried in a leave status and receive payment charging the excess number of days over 26 to the leave accrued on the first of the calendar year?

Answer: It is the apparent intent of the act of June 3, 1941, Executive Order No. 8817, and the directive of July 15, 1941, that pay in lieu of annual leave shall be given only to those employees whose services cannot be spared at any time during the current calendar year without detriment to the national defense. 470350m-42-42

It is not intended that an employee be paid the maximum amount for leave foregone during the year and then be granted leave of absence in addition thereto, even though he has accumulated leave to his credit which has accrued in prior years. The powers and duties of determining the employees whose services cannot be spared without detriment to the national defense have been delegated to the chiefs of the supply arms and services of the War Department and to the commanding officers of corps areas, departments, armories, arsenals, depots, posts, stations, fields, and camps, and to executive officers or chiefs of districts, for their respective branches of employees. These officers are charged with deciding at the time of application for leave whether such leave should be granted or denied and compensation granted in lieu thereof. If these officers decide in good faith that the employee could not be spared without detriment to the national defense, then compensation may be granted for such current leave as requested. Having granted such compensation in good faith at the time of application, then for some unforeseen reason, if the employee could be spared at some future date, he may be granted leave to be charged against any leave to his credit.

h. Question: It is not understood that any of the instructions contained in communication from the Office of the Chief of Ordnance dated July 17, 1941, prohibit the furloughing of men for temporary lack of work and paying them while on such absence from any current leave or accrued leave to which they might be entitled. This situation arises especially in the pattern shop where, during certain periods, work is of a more or less intermittent nature.

Answer: Neither Public Law 100, nor Executive Order 8817, prohibits the furloughing of men for temporary lack of work and paying them while on such absence from any accrued leave or current leave to which they might be entitled. i. Question: Does one class of employee embrace all employees under the Classification Act of 1923 who are entitled only to vacation pay for such time in excess of sixty days which they would otherwise forfeit on December 31, 1941? In other words, they must have accrued leave in excess of 60 days before they are entitled to vacation pay.

Answer: The class of employee referred to in section 1 of Executive Order 8817 are those who already have accumulated 60 days leave under the Act of March 14, 1936 (49 Stat. 1161; 5 U. S. C. 30b), or whose prior accumulation, plus leave for the current calendar year, will exceed 60 days, in which event, if required to forego their leave, they will be entitled to receive pay for the excess over 60 days they would forfeit by foregoing their vacations.

j. Question: Does one class embrace all employees not under Classification Act of 1923, but who are entitled to vacation pay at not to exceed 26 days in any one calendar year, providing they have 26 days accrued and current leave?

Answer: Field Service employees who are entitled to compensation under section 2 of Executive Order 8817 shall be classed as "industrial" and so designated in the certificate or on the list accompanying the certificate as required by section 4 of the Executive Order 8817. The work (word (?)] "industrial" as used herein, shall apply only to employees occupying positions not classified under the Classification Act of March 4, 1923, as amended. These employees may be paid compensation in lieu of leave applied for and denied only to the extent of leave earned and not taken during the current calendar year to the date of payment. This compensation may be allowed in lieu of current annual leave regardless of the amount of accumulated leave to the credit of the employee. The employees referred to are those "who are engaged in construction, manufacturing, processing, and similar pursuits, and whose services are of a character in demand by private industry and cannot be spared without detriment to the national defense."

k. Question: Do employees engaged in industrial activities, even though they are under the Classification Act, fall under question i and j above?

Answer: Employees classed as "industrial" are covered by section 2 of Executive Order 8817. This is covered by the answer to the preceding question.

1. Question: May employees indicated in question j above, be paid 26 days vacation pay and still be granted leave to the extent of any accrued leave to their credit?

Answer: Such employees could not be paid for 26 days vacation and still be granted leave to the extent of any accrued leave to their credit. An employee only earns 26 days annual leave each year, and cannot be paid for vacation leave other than current accrued leave. It will be seen that the employee could be paid for 26 days vacation only at the end of the year. If an employee is denied vacation leave during the year and is compensated for

the current leave denied him at that time, then at some future date, due to an unforeseen circumstance, he may be granted leave chargeable to any leave accrued.

m. Question: May employees under questions i and j above be advanced current leave to enable them to be paid vacation pay?

Answer: Employees may not be advanced current leave to enable them to be paid vacation pay. Executive Order 8817 provides "That the maximum leave in lieu of which such compensation may be paid shall not exceed the amount of accrued leave to the credit of the employee at the time of [the] payment and in any calendar year shall not exceed the current leave to which he is entitled during that calendar year and which he has not taken."

n. Question: May payments be made to employees in question i above after December 31, 1941, the date on which they would automatically forfeit leave in excess of 60 days?

Answer: Payments should be made on the last pay day in December for the leave that has been foregone and otherwise will be forfeited. Leave in excess of 60 days is automatically forfeited on the first of January.

o. Question: May employee in question i above on furlough without pay and on active duty as Reserve officer, be paid for leave to his credit in excess of 60 days?

Answer: This question is properly answered by the act of August 1, 1941 (Public Law 202, 77th Congress) which provides:

"That employees of the United States Government, who have heretofore or who may hereafter be ordered to active duty with the military or naval forces of the United States shall be entitled to receive, in addition to their military pay, compensation in their civilian positions covering their accumulated or current accrued leave or to elect to have such leave remain to their credit until their return from active military or naval duty." The Comptroller General has ruled that the accrued leave payment authorized by the Act of August 1, 1941 (Public Law 202, 77th Congress), appears properly for computing upon the same basis as though the employees remain in the service on a duty status in their civilian positions with credit for Sundays and other nonwork days allowed. It should be noted that any leave and compensation therefor should show the leave period beginning the day following the last day the person was in duty or leave with pay status prior to entrance in the military or naval service. [21 Comp. Gen. 210; id. 258]

p. Question: Are employees on a per annum basis to receive 7 days pay for each five days leave charged, they being entitled to 7 days pay when on a leave with pay status for five full days?

Answer: Section 2 of Public Law 100, 77th Congress, provides that field service employees may "be employed during the time they would otherwise be on vacation without deprivation of their vacation pay for the time so worked. Employees who forego their vacations in accordance with the provisions of this section may be paid, in addition to their regular pay, the equivalent of the pay they would have drawn during the period of such vacation." It would follow that employees would be paid for Sundays and other nonwork days occurring during vacation period denied.

q. Question: At the present time there are several employees at this Depot who have sixty days accrued leave to their credit as of January 1, 1941, and all the leave earned so far during this calendar year. These employees have not had one day's leave since they were transferred to the Depot and at the present time it is impossible to advance any leave due them because of the importance of their positions at this Depot. Information is requested whether these employees are entitled to compensation in lieu of leave for the sixty days accrued leave plus any leave that they have earned and not taken during the calendar year 1941.

Answer: Employees who are not classed as "Industrial" are entitled to compensation for leave requested only in the amount of leave which they would otherwise forfeit at the end of the year, and not exceeding the leave accrued during the current year. Thus, if such an employee had 55 days leave accumulated up to January 1, 1941, he could be paid only for current accrued leave which he has not taken, less 5 days.

An employee classed as "Industrial" is entitled to compensation for leave requested but not allowed, not exceeding the leave accrued during the current year which he has not taken, regardless of the amount of accumulated leave to his credit on January 1, 1941.

r. Question: It is also requested that this office be advised in determining the rate of per diem pay an employee is entitled to who is on a per annum basis. In other words, would it be 261 or 360 of the per annum rate?

Answer: The act of June 3, 1941 (Public Law 100, 77th Congress), provides that field service employees may "be employed during the time they would otherwise be on vacation without deprivation of their vacation pay for the time so worked. Employees who forego their vacations in accordance with the provisions of this section may be paid, in addition to their regular pay, the equivalent of the pay they would have drawn during the period of such vacation." They should be paid the equivalent of the pay they would have received if on vacation with credit allowed for Sundays and other nonwork days.

By order of the Secretary of War:

[S] A. H. ONTHANK,

A. H. Onthank, Director of Personnel.

Sections 2, 3, and 4 of Public Law, 100, approved June 3, 1941, 55 Stat. 241, provide as follows:

SEC. 2. Employees of the field service of the War Department and the Panama Canal Zone may, during the period of the national emergency declared by the President on September 8, 1939, to exist, be employed during the time they would otherwise be on vacation without deprivation of their vacation pay for the time so worked. Employees who forego their vacations in accordance with the provisions of this section may be paid, in addition to their regular pay, the equivalent of the pay they would have drawn during the period of such vacation. The provisions of this section shall be applicable only to employees whose service at the time cannot, in the judgment of the Secretary of War or the Governor of the Panama Canal, as the case may be, be spared without detriment to the national defense.

SEC. 3. The provisions of section 2 of this act and of section 7 of the act of June 28, 1940 (Public, Numbered 671), shall be administered in accordance with such rules and regulations as the President may prescribe.

SEC. 4. The provisions of this act shall be effective during the national emergency declared by the President on September 8, 1939, to exist, and shall terminate June 30, 1942, unless the Congress shall otherwise provide.

Pursuant to the provisions of section 3 of the statute, supra, the President, by Executive Order No. 8817 dated July 5, 1941, issued regulations as follows:

SECTION 1. Except as provided in section 2 of these regulations, the Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, and the Governor of the Panama Canal may authorize payment of compensation_in lieu of annual leave to those employees of the field services of the War Department, the Navy Department, the Coast Guard, and the Panama Canal whose services cannot be spared without detriment to the national defense and who, through being required to forego their vacations, would permanently forfeit because of excess accumulation, or because of lack of accumulation privileges, any leave due them under existing law and regulations. Such compensation shall be only for the portion of the requested leave which otherwise would be forfeited and shall be, in addition to their regular pay, the equivalent of the pay they would have drawn for such leave: Provided, That any compensation in lieu of annual leave shall not be subject to deductions for retirement purposes.

SECTION 2. Employees to which section 1 hereof is applicable who are engaged in construction, manufacturing, processing, and similar pursuits, and whose services are of a character in demand by private industry and cannot be spared without detriment to the national defense, may be allowed compensation in lieu of current annual leave due them under existing law and regulations, regardless of the amount of accumulated leave to their credit: Provided, That the maximum leave in lieu of which such compensation may be paid shall not exceed the amount of accrued leave to the credit of the employee at the time of the payment and in any calendar year shall not

exceed the current annual leave to which he is entitled during that calendar year and which he has not taken.

SECTION 3. The number of days for which an employee is granted compensation in lieu of annual leave shall be deducted from the leave to which he is entitled by law or regulation.

SECTION 4. The Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, and the Governor of The Panama Canal may delegate to such subordinate officers as they deem necessary the authority to require employees to forego annual leave when their services cannot be spared without detriment to the national defense and to authorize payment of compensation in lieu of annual leave to such employees in accordance with the provisions of these regulations. Such officers shall be required to authorize specifically in advance all payments of compensation in lieu of annual leave, and specifically to certify that each employee for whom such compensation is authorized was required to forego his vacation because his services could not in the judgment of the certifying officer be spared without detriment to the national defense at that time or at any time during the then current calendar year and that it had been determined that additional qualified employees could not be secured to meet the requirements of the situation. If the employee is deemed to be entitled to compensation under the terms of section 2 above, it must be further certified that he is engaged in construction, manufacturing, processing, or a similar pursuit and that his services are of a character in demand by private industry.

SECTION 5. No employee shall be required to forego his vacation who, because of his physical condition or the character or location of his employment or for any other exceptionally urgent reason, is determined by a responsible officer designated by the head of the proper department or agency to require, in the interest of health or efficiency, all or any portion of the annual leave to which he is entitled under existing law or regulation.

SECTION 6. The Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, and the Governor of The Panama Canal may issue for their respective services necessary instructions not inconsistent herewith to carry out the provisions of section 7 of the act of June 28, 1940, supra, and section 2 of the act of June 3, 1941, supra.

SECTION 7. This order shall become effective immediately and shall be published in the Federal Register.

Further instructions, supplementing the foregoing, are contained in a memorandum of the Under Secretary of War dated July 15, 1941 (evidently the "directive" mentioned in the answer to question "g," supra), which memorandum reads, in part:

3. Pursuant to the authority granted by section 2 of the act of June 3, 1941 and sections 4 and 6 of Executive Order No. 8817, the following instructions are issued for the purpose of carrying out the provisions of the act and the Executive order:

a. For the purposes of these instructions, the word "vacation," as used in section 2 of the act of June 3, 1941, shall be construed to mean any period of not less than one nor more than twenty-six working days.

b. The powers and duties of determining the employees whose services cannot be spared without detriment to the national defense, as provided in section 2 of the act of June 3, 1941, and the powers and duties specified in sections 4 and 5 of Executive Order 8817, dated July 5, 1941, are hereby delegated to the chiefs of the supply arms and services of the War Department and to the commanding officers of corps areas, departments, armories, arsenals, depots, posts, stations, fields, and camps, and to executive officers or chiefs of districts, for their respective branches and employees.

c. The chiefs of the supply arms and services and the officers mentioned in the preceding subparagraph are authorized to require employees to forego vacations, to determine the employees whose services cannot be spared without detriment to the national defense, to authorize payment in lieu of annual leave, to make the certificates specified in section 4 of Executive Order No. 8817, and to determine the employees who, because of physical condition, character or location of employment, or other urgent reasons, shall not be required to forego vacations.

d. Field service employees who are entitled to compensation under section 2 of Executive Order No. 8817 shall be classed as "Industrial" and so de