With the signing of the Administrative Leave Act of 2016, enacted under section 1138 of the National Defense Authorization Act on December 24, 2016, Congress passed legislation restricting the use of administrative leave for federal employees.
Prior to passage of this Act, agencies granted paid excused absences (‘‘administrative leave’’) to employees based on broad management authority in 5 U.S.C. 301– 302. This legislation allows agencies to prescribe regulations for governing their organizations. This authority did not directly address excused absences by federal employees and there were few set parameters on its use. The regulations proposed place additional restrictions on agencies regarding the use of leave.
Summary of Administrative Leave Restrictions
Here is a summary of the new stipulations in the 2017 Defense Act regarding administrative leave:
- Administrative leave is separate from other forms of paid leave or excused absence already legislatively authorized.
- Agencies must record other forms of authorized excused absence separately from administrative leave.
- Investigative or notice leave is separate from administrative leave. These two categories could be used for extended excused absences due to personnel issues. 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.
OPM Issues New Regulations on Administrative Leave
The Office of Personnel Management (OPM) has now proposed new regulations implementing the requirements of the Administrative Leave Act. Comments on the regulations are due before August 14, 2017.
Comments can be submitted using one of two methods. Those wishing to comment can use the Federal eRulemaking Portal at www.regulations.gov. Comments can also be sent via email to firstname.lastname@example.org.
Limitations on Administrative Leave
Under the proposed regulations, an agency may not place an employee on administrative leave to investigate misconduct or performance for more than 10 calendar days in a calendar year.
If the investigation is ongoing, and it is safe to do so, the agency may decide to allow the employee to complete telework as the investigation continues. An agency can put an employee on investigative leave which can be used for three 30-day increments.
Under the proposed regulation:
These two types of leave (investigative leave and notice leave) may be used only when an authorized agency official determines, through evaluation of baseline factors, that the continued presence of the employee in the workplace 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. Before using these two types of leave, agencies must consider options to avoid or minimize the use of paid leave, such as changing the employee’s duties or work location.
Weather and Safety Leave
The proposed regulations also discuss weather and safety leave requirements for federal employees.
This type of leave is for situations in which an agency determines that employees cannot safely travel to and from, or perform work at, their normal worksite, a telework site, or other approved location because of severe weather or other emergency. There are no time limitations for this type of leave.
These types of leave can only be granted within an employee’s tour of duty established for the purposes of charging annual and sick leave. This means that for full-time employees the tour of duty is either the 40-hour basic workweek, the basic work requirement for employees on a flexible or compressed work schedule, or an uncommon tour of duty.
Agencies cannot grant weather and safety leave for hours during which employees are on other preapproved leave (paid or unpaid) or paid time off.
An agency cannot approve a request to cancel preapproved leave or paid time off if the agency determines the request is primarily for the purpose of obtaining weather and safety leave instead of using another kind of leave such as sick or annual leave.
For more information, check out the proposed regulations as published in the Federal Register.