The use and misuse of administrative leave by federal agencies has been an issue gathering attention in Congress. Elected officials have been expressing their concern on the issue for several years.
With the signing of the National Defense Authorization Act late on Friday, December 24th, Congress has passed legislation restricting use of administrative leave for federal employees.
Basis for Concern About How Paid Administrative Leave is Used
Senator Chuck Grassley (R-IA) has previously cited figures from 18 agencies. The report concluded agencies spent about $80.6 million to place employees on paid administrative leave for one month or more in one fiscal year.
The Senator also noted that this figure might be too low because of imprecise calculations provided by some agencies.
His report also noted that tens of thousands of federal employees were on paid leave for at least one month. Several hundred employees were on paid leave for nine months to three years over a three-year period.
Senator Grassley succinctly stated his opinion this way: “Paid leave shouldn’t be a crutch for management to avoid making tough personnel decisions or a club for wrongdoers to use against whistleblowers.”
The Government Accountability Office (GAO) has also concluded that about $775 million was spent on more than 57,000 employees on paid administrative leave for more than a month.
Creating “Investigative Leave” and “Notice Leave”
Congress placed these restrictions on using paid administrative leave. It also created two new forms of leave.
- “During any calendar year, an agency may place an employee in administrative leave for a period of not more than a total of 10 work days.”
- “An agency shall record administrative leave separately from leave authorized under any other provision of law.”
When the initial 10 work day period expires, an agency may place the employee on investigative leave for not more than 30 work days.
Following the investigation, an employee can be placed in “notice leave.” Notice leave is restricted to the duration of the notice period.
It can be used when an agency proposes or initiates an adverse action. This form of leave is restricted. It would be used when the agency is concerned about problems if the employee continues to work there as outlined below.
Summary of Administrative Leave Restrictions
Here is a summary of the new stipulations in the 2017 Defense Act regarding administrative leave:
- 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 investigative or notice leave separate from administrative leave. These two categories could be used for extended excused absences due to personnel matters. Extended absences would presumably be for rare instances. These leave categories are for completing an investigation or when an adverse action is proposed. In both cases, the agency must conclude the 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.
- Agencies cannot use investigative or notice leave unless established criteria are met.
- Notice leave would be used when government interests are jeopardized. This includes continued presence of the employee posing a threat, possible destruction of evidence, or loss or damage to government property.
- Directs agencies to consider options prior to use of investigative leave and notice leave. Options include assigning duties in which the employee is no longer a threat or allowing the employee to telework.
- Requires agencies to provide employees with an explanation of why they are being placed on investigative leave or notice leave. Records of these new forms of leave must be kept by an agency.
The Office of Personnel Management (OPM) has 270 days from enactment to prescribe regulations and provide guidance to agencies.