Executive Order 8385—Prescribing Regulations Relating to Sick Leave of Government Employees

By virtue of and pursuant to the authority vested in me by section 7 of the act of March 14, 1936, entitled "An Act to standardize sick leave and extend it to all civilian employees" (49 Stat. 1162) as amended by the act of March 2, 1940, entitled "An Act to amend the Annual and Sick Leave Acts of March 14, 1936" (Public No. 419, 76th Congress, 3rd Session), I hereby prescribe the following regulations governing the granting of sick leave to civilian officers and employees of the United States, the District of Columbia, and all corporations included within the provisions of section 6 of the aforesaid act of March 14, 1936, except as provided in Part III hereof:

PART I. DEFINITIONS

SEC. 1. As used in these regulations "employee" and "employees" shall include:

(a) Officer and officers, respectively.

(b) Permanent employees--those appointed without limitation as to length of service or for definite periods in excess of six months.

(c) Temporary employees--those appointed for definite periods of time not exceeding six months.

(d) Emergency employees--those whose compensation is paid from emergency funds and whose tenure of appointment is limited to the period for which the emergency funds are available.

(e) Indefinite employees--those appointed for the "duration of the job" and those who, although paid only when actually employed, are continuously employed or required to be available for duty for a period of not less than one month, as distinguished from part-time or intermittent employees.

PART II. GENERAL PROVISIONS

SEC. 2. Sick leave with pay shall be granted to employees when they are incapacitated for the performance of their duties by sickness, injury, or pregnancy and confinement, or when some member of the immediate family of the employee is afflicted with a contagious disease and requires the care and attendance of the employee, or when, through exposure to contagious disease, the presence of the employee at his post of duty would jeopardize the health of others.

SEC. 3. Except as provided in section 4 hereof, employees shall be entitled to sick leave at the rate of 1 1/4 days a month, and if such leave is not used it shall accumulate: Provided, that the total accumulation shall not exceed 90 days. Sick leave accruing during any month of service shall be available at any time during the month.

SEC. 4. In cases of serious disability or ailments, and when the exigencies of the situation so require, sick leave may be advanced not in excess of 30 days in addition to the unused sick leave that has accumulated to the credit of the employee: Provided, that temporary employees shall not be entitled to an advance of sick leave: And provided further, that no advances of sick leave shall be made to any employee unless the absence from duty on account of illness is for a period, or periods, of not less than 5 consecutive work days, except that advanced leave in a less amount may be granted to supplement accrued leave to cover a continuous absence of 5 work days or more; that every case of advanced leave shall be supported by a certificate of a registered practicing physician or other practitioner; that the total of such advances shall not at any time exceed 30 days in excess of the accumulated sick leave; and that such advances shall be charged against sick leave subsequently accumulating.

SEC. 5. When an employee applies for sick leave in excess of the amount accumulated to his credit and the circumstances do not justify such an advance, the excess leave applied for, if granted and used, shall be charged against any unused annual leave to which the employee is entitled, or, if there is no unused annual leave, the excess shall be charged as leave without pay, and such excess leave, however charged, shall not thereafter be converted into either sick or annual leave subsequently accumulating.

SEC. 6. Sick leave shall not be advanced in an amount that would exceed the total that would accumulate during the period from the date of the advance to the termination of a limited appointment (not temporary in character) or one expiring on a specified date.

SEC. 7. Advanced sick leave may be granted irrespective of whether the employee has to his credit unused annual leave.

SEC. 8. Sick leave shall not be granted for slight illness or indisposition not incapacitating the employee for the performance of his regular duties, or for absence for the purpose of being treated professionally by a dentist or oculist in his office; but sick leave may be granted for detention at home or in a hospital by illness or disability due to causes as to which a dentist or oculist is qualified to certify.

SEC. 9. An employee transferred or reappointed without break in service from one permanent, emergency or indefinite position to another permanent, emergency or indefinite position within the same or a different governmental agency shall at the time of his transfer or reappointment be credited with accumulated sick leave, and charged with sick leave previously advanced in excess of that accumulated, provided such latter position is also within the purview of the said act of March 14, 1936. An employee transferred or appointed without break in service from one permanent, emergency, or indefinite position within the purview of the said act of March 14, 1936, to another position or employment in the Federal service which is not within the purview of that act, shall be credited with all leave, accumulated and accrued on the date of such transfer or appointment at such time as he may be subsequently retransferred or reappointed to a position within the purview of that act, provided such subsequent retransfer or reappointment is also without break in service. "Break in service" means separation from the Federal service for a period of one or more work days.

SEC. 10. Sick leave shall accrue to an employee while in a leave-with-pay status. Sick leave shall not accumulate to an employee while in a non-pay status due to leave without pay or furlough when the duration of such non-pay status in any calendar year aggregates 30 calendar days or more: Provided, that when the duration of such non-pay status is in excess of 30 calendar days in any calendar year, such excess shall affect the accumulation of sick leave only when it aggregates 10 calendar days, and likewise for each aggregate period of 10 calendar days thereafter. Sick leave shall not accrue during any period of suspension for disciplinary reasons.

SEC. 11. In the case of voluntary separation or removal for cause of an employee to whom sick leave has been advanced in an amount in excess of that accumulated, the employee shall refund the amount paid him for the period of such excess, or deduction therefor shall be made from any salary due him or from any amount in the retirement fund to his credit. Such indebtedness shall be charged against the employee on the basis of the salary rate obtaining during the period of advanced sick leave and on the basis of one day's pay for each day of absence on a day upon which the employee would otherwise work and receive pay, such days of absence being exclusive of Sundays which do not occur within a regular tour of duty, holidays, and all non-work days established by Federal statute or by Executive or administrative order. Absences for fractional parts of a day shall be charged proportionately. This section shall not apply in cases of death, retirement for age or disability, or reduction of force, or in case an employee who is not eligible for retirement is unable to return to duty because of disability, evidence of which shall be supported by an acceptable certificate from a registered practicing physician or other practitioner.

SEC. 12. Employees shall be charged for sick leave only for absence on account of illness on days upon which they would otherwise work and receive pay. Absence on account of illness on Sundays not occurring within a regular tour of duty, on holidays, and on all non-work days established by Federal statute or Executive or administrative order shall not be charged as sick leave.

SEC. 13. The minimum charge for absence on account of sickness shall be one- half of a regular work day, which minimum charge shall likewise apply on Saturdays or other days on which four hours constitute a full work day; and additional sick leave authorized on the same day shall be charged in multiples of one-half hour.

SEC. 14. Notification of absence on account of sickness shall be given as soon as possible on the first day of absence. If such notification is not made in accordance with this regulation, such absence may be charged to annual leave or leave without pay. Application for sick leave shall be filed within two days after return to duty. For periods of absence of 3 work days or less, the total of which shall not exceed 12 work days in any one calendar year, the applicant's signed statement on a prescribed form may be accepted.

SEC. 15. In case of a period of absence in excess of 3 work days a certificate of a registered practicing physician or other practitioner supporting the application for sick leave shall be filed not later than fifteen days after return to duty. In remote localities where such certificate cannot reasonably be obtained, the applicant's signed statement as to the nature of the illness and the reason why a certificate is not furnished may be accepted.

SEC. 16. When sickness continuing for more than 5 work days occurs within a period of annual leave, the period of illness may, upon presentation of the certificate of a registered practicing physician or other practitioner, be charged as sick leave, and the charge against annual leave reduced accordingly. No such charge against sick leave shall be made for illness which does not last more than 5 work days. Application for such substitution of sick leave for annual leave shall be made within 2 days after the expiration of the annual-leave period: Provided, that this provision may be waived by the head of the department or agency concerned.

SEC. 17. Sick leave may not be granted for a period immediately following a period of absence in a non-pay status, unless and until there is a return to actual duty, nor may such leave without pay be converted into sick leave.

SEC. 18. Sick leave accumulated during temporary appointment shall be credited to an employee who receives an indefinite, emergency, probational, or permanent appointment in the same department or agency without break in service but shall not be transferable elsewhere under any circumstances.

SEC. 19. In the case of an employee who was not entitled to sick leave under prior law, but who is now entitled thereto, sick leave as accumulated may be substituted for leave without pay or annual leave taken because of illness between January 1 and March 14, 1936.

SEC. 20. Sick leave taken in excess of 1 1/4 days a month during the period between January 1 and March 14, 1936, shall be charged against sick leave subsequently accumulating.

SEC. 21. Nothing in these regulations shall be construed to prevent the continuance of any sick leave differential existing prior to January 1, 1936, for the benefit of employees of the Federal Government stationed without the continental limits of the United States. However, any department may, if it so desires, apply these regulations to employees stationed without the continental limits of the United States, subject to the continuance of such leave differential.

SEC. 22. The heads or governing bodies of the various governmental agencies to which this order applies shall be responsible for the proper administration of these regulations in so far as they pertain to the granting of sick leave to employees under their respective jurisdiction; and they may, within the limits authorized by law, issue such regulations as are not inconsistent with these regulations.

PART III. EMPLOYEES EXCEPTED

SEC. 23. These regulations shall not apply to:

(a) Teachers and librarians of the public schools of the District of Columbia.

(b) Officers and members of the police and fire departments of the District of Columbia, other than civilian personnel.

(c) Officers and employees of the Panama Canal and Panama Railroad on the Isthmus of Panama.

(d) Temporary employees engaged on construction work at hourly rates.

(e) The Postmaster General and officers and employees in or under the Post Office Department except those serving in the departmental service and in the Mail Equipment Shops.

(f) Persons paid security or prevailing wages from funds allotted by the Work Projects Administration, Federal Works Agency, on a state, municipal, or other public but non-Federal project or on a Federal project: Provided, that sick leave shall be granted in accordance with these regulations to employees in the central office of the Work Projects Administration, Federal Works Agency, in the District of Columbia and at district and local headquarters, and to other employees in administrative or clerical positions who receive other than security or prevailing wages as prescribed in Executive Orders.

(g) Employees not required to be continuously employed during regular tour of duty, such as: (1) Per diem or per hour employees engaged in an emergency who may be employed for more than one 7- or 8-hour shift within 24 hours during the emergency; (2) part-time or inter-mittent employees; (3) persons engaged under contract; (4) employees engaged temporarily for less than a month on a piece-price basis; (5) employees who are paid at hourly rates but who are not engaged on construction work, such as mechanics, skilled laborers, and others engaged in many services on maintenance, repair, clean-up work, and the like, where employment is more or less intermittent and not on a regular or continuous basis; and (6) employees paid on a fee basis, such as physicians, surgeons, and other consultants.

PART IV. RATIFICATION; REVOCATION; EFFECTIVE DATE

SEC. 24. All temporary regulations issued by the heads of the various departments and independent establishments under authority of Executive Order No. 7321 of March 21, 1936, are hereby ratified. All such temporary regulations and all other regulations relating to the granting of sick leave are hereby revoked in so far as they are inconsistent with these regulations.

SEC. 25. This order shall supersede Executive Orders No. 7846 of March 21, 1938, No. 7880 of May 9, 1938, and No. 8227 of August 24, 1939, and shall be effective as of March 2, 1940, except that section 9 shall be effective as of July 1, 1936, provided that the total amount of leave to the credit of any employee resulting from an adjustment of such leave on the basis of the regulations as herein amended shall not exceed the amount authorized to be accumulated by law.

SEC. 26. This order shall be published in the Federal Register.

FRANKLIN D ROOSEVELT

The White House,
March 29, 1940.