The use of administrative leave in agencies is a mess. An expensive mess. There is little consistency and enough cases of abusing the system to get the attention of Congress. Some employees are on paid leave for months or years. Perhaps the agency forgot about them. More likely, no one wanted to make the decision to fire the employee and go through the multiple layers of appeals that would result. So, with the employee on leave out of sight and out of mind, although still on the payroll, perhaps it is easier to forget about the problem and see what happens.
It is difficult to get a bill through the House or Senate. The Administrative Leave Reform Act, H.R. 4359, has now been approved by the House with bipartisan support on a voice vote. The bill will now go to the Senate where a companion bill has also been under consideration. The Senate bill also has bipartisan support.
The House bill provides that Federal employees may not be placed on administrative leave for more than 14 days during any year for misconduct or poor performance. The bill would allow agencies to extend the use of administrative leave in extraordinary circumstances in 30 day increments. For any extensions after 44 days, a detailed report would have to be submitted to Congress every 30 days. The bill would also prohibit agencies from leaving individuals on administrative leave indefinitely after all investigations are complete.
The Senate bill would create other restrictions on agencies with regard to administrative leave. (See Bills Seek to Curb Misuse of Paid Administrative Leave in Agencies) Among other things, the Senate bill:
– Defines administrative leave that is separate from other forms of paid leave or excused absence already legislatively authorized.
— Requires agencies to record other forms of legislatively authorized excused absence separately from administrative leave.
— Creates new categories of leave, investigative or notice leave, separate from administrative leave, for extended excused absences due to personnel matters, in the rare instances during an investigation or when an adverse action is proposed and that employee needs to be out of the office.
— Allows agencies to use investigative or notice leave through a multiple step process that involves escalating controls over its use.
— Establishes that in all cases, agencies cannot use investigative or notice leave unless established criteria are met — the continued presence of the employee may pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss of or damage to government property, or otherwise jeopardize legitimate government interests.
The fact that the bill has passed the House does not mean it will become law. Chances are, there will be a modification to incorporate some of the items in the Senate bill if it passes in Congress. And, at that time, it still has to be signed by the President.
But, very few bills make it out of committee and fewer still get passed by a Chamber of Congress. Agencies may find the use of administrative leave much restricted in the near future.