Rule2024-29139
Administrative Leave, Investigative Leave, and Notice Leave
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 17, 2024
Effective
January 16, 2025
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management is issuing a final rule on the acceptable uses and proper recording of administrative leave, investigative leave, and notice leave for covered Federal employees. The Administrative Leave Act of 2016 created these categories of statutorily authorized paid leave and set parameters for their use by Federal agencies. OPM prescribes this final rule to carry out the Act and guide agencies regarding these leave categories.
Full Text
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<title>Federal Register, Volume 89 Issue 242 (Tuesday, December 17, 2024)</title>
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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 102256-102295]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29139]
[[Page 102255]]
Vol. 89
Tuesday,
No. 242
December 17, 2024
Part II
Office of Personnel Management
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5 CFR Parts 630 and 752
Administrative Leave, Investigative Leave, and Notice Leave; Final Rule
Federal Register / Vol. 89 , No. 242 / Tuesday, December 17, 2024 /
Rules and Regulations
[[Page 102256]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 630 and 752
RIN 3206-AN59
Administrative Leave, Investigative Leave, and Notice Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing a final rule on
the acceptable uses and proper recording of administrative leave,
investigative leave, and notice leave for covered Federal employees.
The Administrative Leave Act of 2016 created these categories of
statutorily authorized paid leave and set parameters for their use by
Federal agencies. OPM prescribes this final rule to carry out the Act
and guide agencies regarding these leave categories.
DATES:
Effective date: This final rule is effective on January 16, 2025.
Compliance date: Agencies must issue internal policies consistent
with this rule and any applicable collective bargaining obligations no
later than September 13, 2025.
FOR FURTHER INFORMATION CONTACT: For matters related to general
administrative leave, Bryce Baker by email at <a href="/cdn-cgi/l/email-protection#83cfe6e2f5e6d3ecefeae0fac3ecf3eeade4ecf5"><span class="__cf_email__" data-cfemail="48042d293e2d182724212b3108273825662f273e">[email protected]</span></a> or by
telephone at (202) 606-2858; for matters related to investigative leave
or notice leave, Timothy Curry by email at
<a href="/cdn-cgi/l/email-protection#23464e534f4c5a46464240404c564d5742414a4f4a575a634c534e0d444c55"><span class="__cf_email__" data-cfemail="f5909885999a8c90909496969a809b8194979c999c818cb59a8598db929a83">[email protected]</span></a> or by telephone at (202) 606-2930.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The Office of Personnel Management (OPM) is issuing a final rule
regarding the administrative leave, investigative leave, and notice
leave provisions of the Administrative Leave Act of 2016.\1\ The Act
added three new sections in title 5, U.S. Code, that provide for
specific categories of paid leave and requirements that apply to each:
section 6329a regarding administrative leave; section 6329b regarding
investigative leave and notice leave; and section 6329c regarding
weather and safety leave.\2\
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\1\ Enacted under section 1138 of the National Defense
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328, 130 Stat.
2000, Dec. 23, 2016).
\2\ In this preamble, references to statutory provisions in
title 5, U.S. Code, will generally be referred to by section number
without restating the title 5 reference (e.g., section 6329a instead
of 5 U.S.C. 6329a). Also, references to regulatory provisions in
title 5, Code of Federal Regulations, will generally be referred to
by section number without restating the title 5 reference (e.g.,
Sec. 630.1401 instead of 5 CFR 630.1401).
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The Act charged OPM with prescribing regulations to carry out
sections 6329a, 6329b, and 6329c and guide agencies regarding these new
leave categories no later than 270 calendar days after the Act's
enactment on December 23, 2016, i.e., by September 19, 2017. OPM
published proposed regulations for all three sections on July 13,
2017,\3\ and issued regulations implementing Sec. 6329c, weather and
safety leave, on April 10, 2018.\4\
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\3\ 82 FR 32263.
\4\ 83 FR 15291.
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OPM now prescribes a final rule regarding acceptable uses and
proper recording of administrative leave to carry out section 6329a, as
well as regulations regarding acceptable uses and proper recording of
investigative leave and notice leave, baseline factors agencies must
consider regarding investigative leave, and procedures for the approval
and the extension of investigative leave to carry out section 6329b.
II. Background
Prior to passage of the Administrative Leave Act, there was no
specific statutory authority for the use of administrative leave, which
is an excused absence without loss of pay or charge to leave. Agencies
granted paid excused absences (which they often called ``administrative
leave'') to employees based on statutes, like 5 U.S.C. 301-302, that
provide heads of agencies broad authority to manage their workforces.
While sections 301-302 do not expressly address excused absence and
do not set parameters on its use, some direction on agency discretion
to use the excused absence authority was provided in Comptroller
General decisions and in past OPM guidance via governmentwide
memorandums, handbooks, fact-sheets, and frequently asked questions.\5\
In that guidance, OPM provided that the use of administrative leave
should be limited to those circumstances in which the employee's
absence is not specifically prohibited by law and satisfies one or more
of the following criteria: (1) it is directly related to the agency's
mission, (2) it is officially sponsored or sanctioned by the agency,
(3) it will clearly enhance professional development or skills of the
employee in the employee's current position, or (4) it is determined to
be in the interest of the agency or of the Government as a whole.
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\5\ See, e.g., Off. of Pers. Mgmt., ``Fact Sheet: Administrative
Leave,'' at <a href="https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/administrative-leave/">https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/administrative-leave/</a>.
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In drafting the Administrative Leave Act, Congress considered an
October 2014 report entitled ``Federal Paid Administrative Leave,''
prepared by the Government Accountability Office (GAO) at Congress'
request.\6\ GAO examined the paid administrative leave policies at five
selected Federal agencies.\7\ It reviewed practices in recording and
reporting of paid administrative leave and described categories of
purposes for which large amounts of paid administrative leave have been
charged. GAO found that agency policies on administrative leave varied
and that some employees were on administrative leave for long periods
of time. These periods had significant cost implications. GAO found
that the ``predominant reason'' for ``large amounts of administrative
leave was personnel matters, which was cited as a reason for paid
administrative leave at all five of [the] selected agencies.'' These
personnel matters included ``investigations into alleged misconduct,
criminal matters, or security concerns as well as settlement
agreements, pending adverse actions due to inappropriate behavior, and
interim relief.'' These matters concluded in a variety of ways,
including ``removal, retirement, resignation, reinstatement of [the]
employee, and settlement agreement[s].'' GAO also found variations in
agencies' recording and reporting practices with respect to
administrative leave and that there was no reliable data on the amount
of administrative leave by type of use (e.g., weather and safety
reasons, personnel investigation reasons).
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\6\ See Gov't Accountability Off., ``Federal Paid Administrative
Leave,'' Oct. 2014, at <a href="https://www.gao.gov/assets/gao-15-79.pdf">https://www.gao.gov/assets/gao-15-79.pdf</a>.
\7\ The five agencies GAO reviewed were the Departments of
Defense, the Interior, and Veterans Affairs, the General Services
Administration, and the U.S. Agency for International Development.
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GAO concluded that ``Federal agencies have the discretion to grant
paid administrative leave to employees to help manage their workforces
when it is in their best interest to do so. This discretion is
important in ensuring that employees are not placed in dangerous
circumstances, have access to professional development opportunities,
and are able to participate in civic activities during work hours,''
but that administrative leave should be managed effectively since it is
a cost to the taxpayer. GAO made two recommendations: that OPM, in
coordination with agencies, (1) develop guidance on which activities to
enter, or
[[Page 102257]]
not enter, as paid administrative leave in agency time and attendance
systems, and (2) provide updated and specific guidance to payroll
service providers on which activities to report, or not report, to the
paid administrative leave data element in the Enterprise Human
Resources Integration database.
Congress extensively cited the GAO report in 2016 House and Senate
committee reports regarding draft bills for Federal administrative
leave.\8\ Those committee reports also included background information
on the development of the legislative text that eventually became the
Administrative Leave Act. As discussed further, below, while Congress
sought to address and better record all forms of paid administrative
leave, its primary focus when enacting the Administrative Leave Act was
on leave related to misconduct, performance, or other reasons prompting
an investigation (as opposed to general administrative leave unrelated
to an investigation).
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\8\ See House Report 114-520, (Aug. 25, 2016), accompanying H.R.
4359, at <a href="https://www.govinfo.gov/content/pkg/CRPT-114hrpt520/html/CRPT-114hrpt520.htm">https://www.govinfo.gov/content/pkg/CRPT-114hrpt520/html/CRPT-114hrpt520.htm</a>; Senate Report 114-292, (July 6, 2016),
accompanying S. 2450, at <a href="https://www.govinfo.gov/content/pkg/CRPT-114srpt292/html/CRPT-114srpt292.htm">https://www.govinfo.gov/content/pkg/CRPT-114srpt292/html/CRPT-114srpt292.htm</a>.
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In the sense of Congress provisions in section 1138(b) of the
Administrative Leave Act, Congress expressed the need for legislation
to address concerns that usage of administrative leave had sometimes
exceeded reasonable amounts and resulted in significant costs to the
Government. Congress wanted agencies to (1) use administrative leave
sparingly and reasonably, (2) consider alternatives to use of
administrative leave when employees are under investigation, and (3)
act expeditiously to conclude investigations and either return the
employee to duty or take an appropriate personnel action. Congress also
wanted agencies to keep accurate records regarding the use of
administrative leave for various purposes.
As explained in the ``Executive Summary,'' the Act added three new
sections in title 5, U.S. Code, that provide for specific categories of
paid leave and requirements that apply to each:
<bullet> Section 6329a regarding administrative leave;
<bullet> Section 6329b regarding investigative leave and notice
leave; and
<bullet> Section 6329c regarding weather and safety leave.
The Act directed OPM to prescribe regulations to carry out these
three sections and guide agencies regarding these new leave categories.
Specifically, under section 6329a, OPM is required to prescribe
regulations that provide guidance to agencies regarding (1) acceptable
uses of administrative leave and (2) the proper recording of
administrative leave and other leave authorized by law. Under section
6329b, OPM is required to prescribe regulations regarding (1) the
acceptable uses of investigative leave and notice leave, (2) the proper
recording of investigative leave and notice leave, (3) baseline factors
that an agency must consider when making a determination that the
continued presence of an 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, and
(4) procedures and criteria for the approval of an extension of a
period of investigative leave. And section 6329c required OPM to
prescribe regulations regarding (1) the appropriate purposes for
providing weather and safety leave and (2) the proper recording of
weather and safety leave.
The Administrative Leave Act provided that OPM prescribe these
regulations no later than 270 calendar days after its enactment on
December 23, 2016--i.e., by September 19, 2017. OPM published proposed
regulations on July 13, 2017.\9\ OPM proposed to add three new subparts
to 5 CFR part 630 that correspond to the three new statutory sections
in 5 U.S.C. chapter 63: subpart N, Administrative Leave (implementing
section 6329a); subpart O, Investigative Leave and Notice Leave
(implementing section 6329b); and subpart P, Weather and Safety Leave
(implementing section 6329c).
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\9\ See 82 FR 32263.
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The Act further directed that agencies ``revise and implement the
internal policies of the agency,'' to meet the statutory requirements
pertaining to administrative leave, investigative leave, and notice
leave no later than 270 calendar days after the date on which OPM
issues its regulations.\10\ There was no similar agency implementation
provision in the law governing weather and safety leave.
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\10\ See 5 U.S.C. 6329a(c)(2), 6329b(h)(2).
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The 30-day comment period for the proposed regulations ended on
August 14, 2017. After consideration of the comments received, and in
recognition of the different implementation dates for the new leave
categories under the Act, OPM determined that it would better serve
agencies if the regulations at subpart P, Weather and Safety Leave,
were issued first, separately from the regulations addressing the other
leave categories. The regulations on weather and safety leave were
published on April 10, 2018, and became effective on May 10, 2018. In
that final rule, OPM stated it would delay enforcement of the reporting
requirements for weather and safety leave pending this final rule (see
83 FR 15291); accordingly, agencies must begin reporting weather and
safety leave not later than 270 days after the date of publication.
The effective date for these regulations addressing administrative
leave (subpart N) and investigative and notice leave (subpart O) is 30
days after the date of publication and the compliance date is set as
270 days after the date of publication. This compliance date is
consistent with the provisions in sections 6329a(c)(2) and 6329b(h)(2),
which require that agencies revise and implement their internal
policies consistent with the Act within 270 calendar days from the date
OPM prescribes the regulations. That same effective and compliance
dates apply to OPM's amendments to Sec. Sec. 752.404(b)(3) and
752.604(b)(2), which are conforming amendments related to subpart O.
Agencies are responsible for compliance with time limits provided for
in the Act, these OPM regulations, and any related guidance.
III. Regulatory Amendments and Related Comments
A. Summary of Regulatory Changes
In this final rule, OPM is adding two new subparts to 5 CFR part
630 that correspond to new statutory sections in 5 U.S.C. chapter 63:
subpart N, Administrative Leave (implementing 5 U.S.C. 6329a), and
subpart O, Investigative Leave and Notice Leave (implementing 5 U.S.C.
6329b).
Administrative leave is permitted--at an agency's discretion but
subject to statutory and regulatory requirements--when an agency
determines that no other paid leave is available under other law. Under
section 6329a(b)(1), an agency ``may place'' an employee on
administrative leave for no more than 10 total workdays in any given
calendar year.
Investigative leave and notice leave are permitted--at an agency's
discretion but subject to statutory and regulatory requirements--when
an agency determines that an employee must be removed from the
workplace while under investigation or during a notice period (i.e.,
the period beginning on the date the employee is provided a notice of
proposed adverse action and ending on either (1) the effective date of
the
[[Page 102258]]
adverse action or (2) the date the agency notifies the employee that no
adverse action will be taken). These two types of 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. Use of
investigative leave is subject to time limitations and special
approvals for extensions.
Both the law and these regulations also address recordkeeping and
reporting requirements with which agencies must comply. Agencies must
keep separate records on each type of leave provided under the Act:
administrative leave,\11\ investigative leave, notice leave, and
weather and safety leave.
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\11\ As described below, this final rule provides for two
subcategories of administrative leave: (1) administrative leave for
investigative purposes (related to employee conduct or performance)
and (2) administrative leave for all other purposes.
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OPM is also making several editorial changes from its proposed
regulatory text. In Sec. 630.1504(g), OPM has changed the reference to
the Committee on Oversight and Government Reform to the Committee on
Oversight and Accountability to reflect the change in the name of the
relevant committee in the House of Representatives since the passage of
the Act. OPM is also revising its proposed regulatory text to adopt
gender neutral language. Finally, OPM is revising the Authority
citations for part 752 to comply with 1 CFR part 21, subpart B, without
substantive change.
B. Digest of Public Comments
OPM received 78 comments on the proposed regulations from agency
representatives (18), unions (7), other organizations (6), and
individuals (47).\12\ In the next section, we address general or
overarching comments on the proposed rule. In the sections that follow,
we address comments related to specific proposals.
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\12\ OPM received an additional 13 comments that contained
personally identifiable information and were removed from
<a href="http://regulations.gov">regulations.gov</a> but OPM still considered them in conjunction with
this final rule. Four of the total comments received were neither
posted to the docket on <a href="http://regulations.gov">regulations.gov</a> nor considered in this final
rule because they are irrelevant to issues discussed in the proposed
rule.
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C. General Comments
Comment re Coding in Payroll System: Multiple commenters requested
guidance about how the new types of leave should be coded in the
payroll system to accurately account for and track the use of these new
leave provisions. An agency questioned the need for a separate category
for administrative leave used for investigative purposes and suggested
coding such leave as investigative leave.
OPM response: The regulations specify that an agency must track the
use of the new categories of leave using five categories: (1)
administrative leave for investigative purposes (related to employee
conduct, performance, or other reasons prompting an investigation), (2)
administrative leave for other purposes, (3) investigative leave, (4)
notice leave, and (5) weather and safety leave (published separately at
83 FR 15291).
The two categories related to investigations are necessary because
the law bars use of investigative leave under section 6329b until the
employee has reached the 10-workday annual limit for administrative
leave for investigative purposes under section 6329a.\13\ That means
that agencies will use an initial period of administrative leave for
investigative purposes unless and until that period is exhausted before
the provisions of section 6329b apply. This is the reason the type of
administrative leave must be separately tracked. The regulations do not
address details regarding the coding of leave in agency payroll systems
or in OPM's Government payroll databases. OPM will be providing payroll
and shared service providers with instructions on how to properly code
the various types of leave.
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\13\ See infra Section IV.(B.) regarding OPM's interpretation
that the annual 10 workday limitation in section 6329a of the
Administrative Leave Act was meant to apply to management-initiated
actions to ``place'' an employee on administrative leave, with or
without the employee's consent, for the purpose of investigating an
employee's conduct or performance that could lead to an adverse
personnel action.
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Comment re Leave Reporting: An organization expressed concern that
the proposed regulations require agencies only to report on their use
of administrative leave and not investigative leave or notice leave.
The same organization also expressed concern that having reports
prepared by the GAO submitted every 5 years is too infrequent. Instead,
the organization stated that agencies should be required to maintain
real-time, current tallies of all types of paid leave available on its
public website, rather than ``buried in obscure, long, after-the-fact
reports.''
OPM response: The commenter is incorrect that the regulations do
not require reporting on the use of investigative leave and notice
leave. The regulations at Sec. 630.1506(c) require that data on usage
of investigative leave and notice leave be included in data reports to
OPM. Payroll providers submit payroll data to OPM every biweekly pay
period. Thus, agencies and OPM will have greater visibility into
administrative, investigative, and notice leave usage, which may be
used to generate reports as necessary. The 5-year period for GAO's
report is a statutory requirement, which OPM has no authority to
change, nor does OPM have the authority to impose on GAO the obligation
to submit additional reports to Congress.\14\
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\14\ See section 1138(d)(2) of Public Law 114-328 (5 U.S.C.
6329a (Editorial Notes)).
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Comments re Existing Collective Bargaining Agreements: A union
requested clarification that any OPM-issued ``guidance'' does not
interfere with the union's bargaining rights or legal obligations in
existing collective bargaining agreements. Also, an individual
commented that excused absence provided under a negotiated collective
bargaining agreement should be excluded from the limits in subpart N.
OPM Response: Statutory and regulatory requirements affect
collective bargaining agreements in different ways. To the extent that
existing agency collective bargaining agreements contain provisions
that are inconsistent with the statutory provisions of the
Administrative Leave Act (including sections 6329a, 6329b, or 6329c),
the Act supersedes conflicting provisions in agency collective
bargaining agreements as a matter of law. Regulations issued pursuant
to the Administrative Leave Act, however, cannot nullify the terms of
an existing collective bargaining agreement for the duration of the
agreement. If an agency collective bargaining agreement is in effect
before the date these regulations are prescribed,\15\ then any
provisions in the regulations (other than those restating statutory
requirements which are immediately enforceable) that conflict with the
agreement may be enforced only when the current term of the collective
bargaining agreement expires (whether or not the agreement is
[[Page 102259]]
officially reopened for negotiations or is automatically renewed
through a rollover provision). But agency collective bargaining
agreements that take effect on or after the date these regulations are
prescribed must comport with the requirements of this regulation. Any
conflicting provisions will be unlawful and may not be enforced. To the
extent that provisions in agency collective bargaining agreements are
consistent with the Act and accompanying regulations, those provisions
remain in effect unless and until the provisions are renegotiated.
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\15\ See 5 U.S.C. 7116(a)(7) (explaining it shall be an unfair
labor practice for an agency to ``enforce a rule or regulation . . .
which is in conflict with any applicable collective bargaining
agreement if the agreement was in effect before the date the rule or
regulation was prescribed[.]'').
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Moreover, OPM will issue interpretative guidance relating to these
regulations. Any collective bargaining provision reached after the date
these regulations are prescribed that conflicts with the regulations
would be unlawful and non-negotiable, and, if included in a collective
bargaining agreement, unenforceable by the Federal Labor Relations
Authority (FLRA or the Authority) or an arbitrator.
Comment re Disciplining Managers: An organization expressed concern
that the proposed regulations would not prevent abuse in the form of
excessive investigative leave and notice leave, since managers would
not be held accountable in a meaningful way for inappropriate use of
these types of leave--they do not subject managers who approve
excessive leave to discipline and there is no ``down side'' for them in
terms of adverse career consequences. The organization stated that such
excessive leave affects both the taxpayer and the agency by allowing
human resources to be wasted. The organization also expressed concern
that excessive investigative leave damages the targeted employee's
professional prospects and reputation. For instance, employees can be
left in lengthy ``leave-limbos'' without due process protection where
they are viewed by management as ``inconvenient, an irritant, or a
political threat.''
OPM response: The statute governing investigative leave (section
6329b) established various accountability mechanisms to prevent use of
investigative leave beyond specified limits and controls. Those
mechanisms include standards on appropriate usage (supplemented by
regulations), time limits, approval levels, reports to Congress,
recordkeeping, and GAO reviews. OPM notes that, as required by law,
these regulations deal with the granting of leave and do not regulate
agency decisions regarding investigations or adverse actions.
Although the Administrative Leave Act did not establish time limits
for notice leave, notice leave may be used only when an agency has
issued a notice of proposed adverse action. Also, agencies must keep
records regarding the use of notice leave and those records are subject
to review by Congress, OPM, GAO, and other oversight or adjudicative
bodies. Data on the use of notice leave can reveal any excessive use
that warrants additional scrutiny.
Finally, the regulations are not intended to be a substitute for
agencies' own compliance and remedial efforts relating to potential
program abuse. But OPM notes that due process protections would not
apply to an employee in a paid status because there would be no
deprivation of property while on investigative leave or notice leave.
Comment re OPM's Oversight of Agency Practices: An organization
commented that OPM's proposed regulations would not place
responsibility on OPM to police agency practices with respect to
investigative leave and notice leave but would, instead, allow agencies
to police themselves. The organization stated that the regulations make
no provision for ensuring that agencies establish necessary agency
rules or that agency rules are consistent with OPM regulations. The
organization suggested that OPM exercise oversight over agency
practices.
OPM response: As described above, the Administrative Leave Act
authorized OPM to issue regulations dealing with the appropriate uses
and proper recording of the new types of leave. Although OPM has a
general oversight function, Congress imposed no specific obligation on
OPM to monitor or police agency practices with respect to the Act. OPM
will take steps, however, to enforce the rules to the extent permitted
by resources and consistent with other significant priorities. OPM can
and will intervene, for example, if it becomes aware that an agency is
not complying with the law and regulations for which OPM is
responsible. At the same time, each agency, along with its Inspectors
General, is responsible for evaluating agency personnel programs and
the actions of its managers. The Act also gave GAO a specific
responsibility to evaluate agencies' implementation of investigative
leave and notice leave every 5 years.
Comment re Required Hours While Teleworking: One commenter noted
the telework-related provisions in the proposed regulations and
expressed concern that Federal employees were not performing required
hours of work while teleworking.
OPM response: The Telework Enhancement Act of 2010, which built on
earlier enactments, specifies roles, responsibilities, and expectations
for all Federal executive agencies regarding telework policies,
employee eligibility and participation, program implementation, and
reporting. Under that statute, each agency is responsible for
monitoring whether employees are performing required hours of work
while teleworking. These regulations merely recognize the option of
telework under authority of 5 U.S.C. chapter 65 and explain how
telework relates to the new types of leave.
D. Comments Related to Specific Regulatory Amendments
OPM discusses the regulatory changes to part 630 before turning to
conforming changes to part 752.
Amendment to Sec. 630.206(a)
Comment: Three unions, one professional association, and an
individual objected to the removal of the provision at Sec. 630.206(a)
that agencies traditionally used to excuse employee absences of less
than 1 hour. The union and the professional association said there are
valid reasons for employee tardiness for which administrative leave
should be granted. The union also mentioned the hardship on employees
with children in daycare. The union said that agencies should continue
to have their current discretion to grant excused absence in any such
circumstances. A second union added that it was unfortunate that OPM
believes it necessary to remove this provision without any firm data
indicating some type of adverse impact. A third union expressed concern
about the second approval level now required and believed that removal
of the provision is outside the scope of what Congress intended to
address with the legislation. The professional association and an
individual objected to the change because of the administrative burden.
An agency asked if this removes a supervisor's authority to grant 59
minutes of excused absence. Another agency asked if the removal of the
provision meant that the authority was now under the new administrative
leave regulations. An individual suggested that the administrative
leave regulations allow for use of a 59-minute rule without second-
level management approval (e.g., to deal with employees who arrive
late).
OPM response: The new OPM regulation is not eliminating the
possibility of an agency granting administrative leave in appropriate
circumstances when an employee arrives late but is simply clarifying
the authority under which the agency is
[[Page 102260]]
authorizing such administrative leave. There was never clear authority
to grant excused absence for leave less than one hour under annual and
sick leave statutes. As we explained in the preamble of the proposed
rule, Sec. 630.206(a) was not an authority for creating a type of paid
time off, but merely recognized the existence of agency authority to
provide brief periods of excused absence under Comptroller General
decisions. Now that OPM has authority to regulate the use of
administrative leave under section 6329a, it is appropriate for this
application of administrative leave to be covered under these new
regulations.
Since section 6329a is now the exclusive authority for
administrative leave for employees covered by title 5, U.S. Code, any
excused absence for tardiness should be documented as administrative
leave and included in agency reports so that, among other reasons
described in this preamble, Congress has complete information about
administrative leave. Agencies have discretion under the section 6329a
authority to continue to grant administrative leave for these brief
periods, if determined to be appropriate.
The preferred action is to continue allowing employees to adjust
their stop time under a flexible work schedule within the flexible time
bands established by the agency or to use annual or other appropriate
leave. OPM recognizes, however, that there may be occasions when an
agency believes administrative leave is appropriate. Subject to the
principles and prohibitions in Sec. 630.1403, agencies have
considerable discretion in granting such administrative leave.
As described further below, these regulations only require a second
level of approval to grant administrative leave if an agency head or
authorized delegee has not adopted policies that allow first-line
supervisors to grant a specified amount of administrative leave in a
specifically defined circumstance.
Regarding the administrative burden concern, agencies must account
for all hours within an employee's tour of duty, regardless of whether
the employee is at work, on leave or leave without pay, using
compensatory time off or credit hours, or is absent for any other
reason. A decision not to provide administrative leave for absences
under 1 hour simply requires application of normal procedures.
Subpart N--Administrative Leave
Section 630.1401--Purpose and Applicability
Comment: One agency asked if the Administrative Leave Act replaced
agency authority under 5 U.S.C. 301-302 or if agencies still retain
authority to grant administrative leave on matters not addressed in the
regulations. An individual asked whether the Administrative Leave Act
eliminated, superseded, or replaced the authority in sections 301-302.
The individual noted that the limits imposed by the Act would nullify
existing collective bargaining agreement provisions on the granting of
administrative leave and that agencies may want to continue to use the
sections 301-302 authority to preserve those provisions.
OPM response: The statutory language of the Act does not
specifically address agencies' preexisting authority in sections 301-
302. Section 301 provides in pertinent part that the ``head of an
Executive department . . . may prescribe regulations for the government
of his department, [and] the conduct of its employees . . . .'' Section
302 authorizes an agency head to delegate the authority ``to take final
action on matters pertaining to the employment, direction, and general
administration of personnel under his [or her] agency.'' OPM does not
regulate agencies' management authority under sections 301-302 (or
other statutes that grant agencies similar management authority to
grant particular types of leave), so in this final rule OPM does not
opine as to what agencies can or cannot do under sections 301-302.
It is OPM's view, however, that section 6329a is the exclusive
administrative leave authority for employees covered by title 5, U.S.
Code. Section 6329a of the Act defines ``administrative leave'' as
leave without loss of or reduction in (1) pay; (2) leave to which an
employee is otherwise entitled under law; or (3) credit time for time
or service; and ``that is not authorized under any other provision of
law.'' [Emphasis supplied]. Investigative leave and notice leave are
similarly defined, except that investigative leave may only be approved
for an employee who is the subject of an investigation (section
6329b(a)(7)), and notice leave may only be approved for an employee who
is in a notice period (section 6329b(a)(8)).
The Administrative Leave Act in section 6329a(c)(1) states that the
``Director . . . shall prescribe regulations to carry out this section;
and prescribe regulations that provide guidance to agencies regarding
acceptable agency uses of administrative leave and the proper recording
of administrative leave and other leave authorized by law.'' Under
section 6329b(h)(1) of the Act, the ``Director shall prescribe
regulations to carry out this section, including guidance to agencies
regarding acceptable purposes for the use of investigative leave and
notice leave.'' This subsection also provides that OPM shall regulate
``the proper recording'' of investigative leave and notice leave, ``and
other leave authorized by law.'' Section 6329c(d) provides similar
language regarding appropriate purposes for, and proper recording of,
weather and safety leave.
Thus, the Act gives OPM authority to regulate regarding acceptable
purposes for using administrative leave, investigative leave, notice
leave, and weather and safety leave, and requires OPM to regulate the
``proper recording'' of those types of leave, as well as other leave
authorized by law.
As noted above, the specific issue of the continued vitality of
other excused absences under sections 301-302 (i.e., other excused
absences not defined as a type of administrative leave under the Act)
is beyond the scope of these regulations, and we do not address their
use in this final rule.
Agencies should be mindful, though, that any such grants may also
be subject to internal and external oversight, including scrutiny by
the agency Office of the Inspector General, GAO, and Congress, and
agencies may have to justify any extraneous uses.
Comment: The individual also asked whether the Act currently
impacts collective bargaining agreements and agency policies or if the
impact will occur when agencies implement their policies in 270 days.
OPM response: The provisions of the Administrative Leave Act
supersede any conflicting provisions in agency policies or a collective
bargaining agreement. Once this regulation is prescribed, any new
collective bargaining agreement must be consistent with the regulation.
Any conflicting provisions in a pre-existing collective bargaining
agreement will prevail over regulatory requirements only until such
time as the current term of the collective bargaining agreement expires
(whether or not the agreement is officially reopened for negotiations
or is automatically renewed through a rollover provision). As provided
in the Act, agencies must ``revise and implement the internal policies
of the agency'' no later than 270 days after related regulations are
prescribed so that those policies
[[Page 102261]]
conform with the law and regulations.\16\ There is no similar delayed
agency implementation provision governing weather and safety leave, and
thus the weather and safety leave regulations were implemented 30 days
after the April 10, 2018, publication date.
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\16\ See sections 6329a(c)(2) and 6329b(h)(2). In the proposed
rule, OPM stated that, for the final rule, OPM intended to specify
that the regulations for subparts N and O (dealing with
administrative leave and investigative/notice leave, respectively)
``will take effect 270 days after publication by specifying a
separate `implementation date.''' 82 FR 33263, 33264.To be clear,
the effective date of this final rule is 30 days after publication
and the date by which agencies must revise and implement their
internal policies to meet the requirements of the Administrative
Leave Act and these regulations is 270 days from the date these
regulations are published.
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Comment: One individual commented that the statutory authority at
section 6329a(d) conflicts with the statutory authority at 38 U.S.C.
7421 and asked how OPM would reconcile the two. The same individual
asked how 38 U.S.C. 717 applied to proposed Sec. Sec. 630.1404(a) and
630.1504(a).
OPM response: Chapter 74 of title 38, U.S. Code, applies to
personnel of the Veterans Health Administration (VHA), a component of
the Department of Veterans Affairs. The statute at 38 U.S.C. 7421
applies exclusively to VHA physicians, dentists, podiatrists,
optometrists, registered nurses, physician assistants, expanded-duty
dental auxiliaries, and chiropractors. While these employees are, by
default, covered by title 5, U.S. Code, leave provisions (since they
are ``employees'' under 5 U.S.C. 2105), the Department of Veterans
Affairs (VA) may, generally, use the section 7421 authority to exclude
them from title 5, U.S. Code, leave provisions and to create
alternative leave rules for them. However, in each of the sections
6329a, 6329b, and 6329c, there are provisions requiring VA to apply
those sections ``notwithstanding'' the section 7421 authority.\17\ The
Administrative Leave Act provisions, therefore, apply to VHA employees
notwithstanding the section 7421 authority to prescribe leave benefits.
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\17\ See sections 6329a(d), 6329b(i), and 6329c(e).
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The statute at 38 U.S.C. 717 was enacted via Public Law 114-315,
title V, section 503(a)(1) on December 16, 2016, while the
Administrative Leave Act was enacted a few days later on December 23,
2016. Under section 717, the Secretary of the VA may not place any
covered individual (i.e., those subject to an investigation or who are
facing disciplinary action) on administrative leave, or any other type
of paid non-duty status without charge to leave, for more than a total
of 14 days during any 365-day period.\18\ Section 717 also authorizes
the Secretary of VA to waive the 14-day limit if the Secretary notifies
Congress of the reasons for an extension. That VA employees are covered
under a VA-specific administrative leave limitation does not except
them from coverage under the Administrative Leave Act. We note that VA
employees are covered under the Administrative Leave Act's definition
of ``agency'' under sections 6329a(a)(2)(B), 6329b(a)(1)(B), and
6329c(a)(1)(B). Both laws can be applied simultaneously.
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\18\ Notably, the 14-day annual limitation on the number of days
the VA may ``place'' an employee on administrative leave or other
paid non-duty status in 38 U.S.C. 717, enacted days before the
Administrative Leave Act, applies only to VA employees who are
subject to an investigation to determine whether they should be
subject to any disciplinary action under title 38 or title 5 or
against whom any disciplinary action is proposed or initiated under
title 38 or title 5. See 38 U.S.C. 717(c). This further supports
OPM's reading that the 10-day annual period in section 6329a(b)(1),
limiting the number of days an agency ``may place'' an employee on
administrative leave under the Administrative Leave Act was meant to
apply to agency-directed administrative leave for investigative
purposes, as explained below.
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Comment: Nine individuals opposed the application of the
administrative leave regulations, and particularly the 10-workday
calendar year limit, to VA employees. These individuals cited several
activities for which they maintained VA granted excused absences in the
past, including research, teaching, training, medical education and
certification, attending conferences and scientific meetings, travel to
other VA stations or Federal agencies for support or educational
purposes, conducting grant reviews or serving on panels at other
agencies, reporting on VA research findings and models to stakeholders
and professional societies, and sabbaticals. The individuals felt that
the regulations would seriously impair VA patient care, education, and
research efforts and would negatively affect recruitment and retention.
OPM response: Congress specifically provided in the Administrative
Leave Act that section 6329a ``shall apply'' to an employee covered by
38 U.S.C. 7421(b), ``notwithstanding subsection (a) of section 7421.''
Through this enactment, Congress required VA employees covered by leave
programs established under section 7421(a) to be subject to section
6329a. While these VA employees are covered by the statute, as
explained later in this preamble, the annual 10-workday period only
applies to administrative leave for investigative purposes. Also, many
of the activities cited by the commenters might more appropriately be
classified as ``on-duty'' time, which does not require the granting of
administrative leave. For instance, if VA determines that research,
teaching, grant reviews or other support activities are components of
an employee's duties and are justified under agency appropriations,
these activities would not require the granting of administrative
leave. Likewise, administrative leave is not needed for training,
conferences, and meetings that are authorized under sections 4109 and
4110 and the regulations at Sec. 410.404.
However, administrative leave is generally not appropriate for
sabbaticals that would provide paid time off for lengthy periods of
time. When Congress has sought to allow certain Federal employees to
take sabbaticals, it has provided specific authority via
legislation.\19\ We note that VA may consider whether it can provide
sabbaticals under its section 7421 authority to establish ``conditions
of employment.'' VA may also consider whether certain sabbaticals
qualify as special work assignments rather than as ``leave'' (as can be
done with certain assignments made under 5 U.S.C. 3371-3376).
---------------------------------------------------------------------------
\19\ See, e.g., 5 U.S.C. 3151(a)(7), 3396(c); 50 U.S.C.
3610(a)(1)(G).
---------------------------------------------------------------------------
Comment: One commenter believed that VA activities for which
excused absence had been granted in the past would no longer qualify
because proposed Sec. 630.1403(a)(3) limits the duration of
administrative leave to ``not more than 1 workday.''
OPM response: OPM's final rule does not bar leave longer than 1
workday. While Sec. 630.1403(a)(3) states that administrative leave
``is appropriately used for brief or short periods of time--usually for
not more than 1 workday'' it specifies that ``[a]n incidence of
administrative leave lasting more than 1 workday may be approved when
determined to be appropriate by an agency.''
Section 630.1402--Definitions
Comment: The preamble discussion on the proposed Sec. 630.1402
stated that the 5 days of excused absence for employees returning from
active military duty granted by the Presidential memorandum of November
14, 2003, is not considered administrative leave. One commenter asked
if this meant that the 5 days would no longer be granted or if the 5
days now belong to a separate leave category.
OPM response: The 5 days of excused absence for employees returning
from active military duty is authorized by a Presidential directive. As
noted in the
[[Page 102262]]
definition of administrative leave in Sec. 630.1402, administrative
leave does not encompass leave authorized by Presidential directives.
The President is acting under the President's authority under the
Constitution; thus, excused absence provided by Presidential directive
is leave that is authorized under another provision of law and is
excluded from the statutory definition of administrative leave in
section 6329a(a)(1). Also, section 6329a limits only actions by
agencies, not actions by the President. Thus, the 5 days of excused
absence authorized by the Presidential memorandum is not administrative
leave under section 6329(a)(1) and, as such, these regulations do not
affect this entitlement.
Comment: An agency requested clarification on the proper use of
administrative leave authorized by Congress or Presidential directive,
which the agency said appears inconsistent with the regulatory
provision at Sec. 630.1403(a)(2) that administrative leave be granted
sparingly. The agency also requested that OPM expressly address other
potential uses of administrative leave to aid agencies that will need
to renegotiate labor agreements in light of the statutory 10-workday
calendar year limit in section 6329a.
OPM response: The definition of administrative leave in Sec.
630.1402 excludes paid leave authorized by statutes other than section
6329a and by Presidential directives issued under the President's
authority. Therefore, the treatment of leave authorized by other
statutes and Presidential directives is excluded from these subpart N
regulations.
Comment: One agency said that in sections of the proposed rule, OPM
used the term administrative leave to refer to investigative leave,
notice leave, and weather and safety leave. The agency recommended that
OPM redefine administrative leave to exclude these other types of
leave.
OPM response: Following review of the proposed rule, OPM did not
find any instances where the term was used incorrectly. The definition
of administrative leave in Sec. 630.1402 clearly provides that it
applies only to leave authorized under section 6329a and subpart N.
Comment: Three agencies and an individual asked about other paid
leave in relation to the regulations--specifically, court leave, bone
marrow and organ donation leave, funeral leave, disabled veteran leave,
and the 4 hours of excused absence for preventive health screenings for
employees with low sick leave balances under Presidential Memorandum of
January 4, 2001. Commenters asked whether these types of leave were
subject to the 10-workday annual limit under section 6329a.
OPM response: Leave entitlements authorized under other statutes or
Presidential directives are not subject to section 6329a and subpart N,
so they are not considered administrative leave. Also, as explained
below, the 10-day annual limit in section 6329a applies to
administrative leave for investigative purposes, not the types of
leaves identified in the comments above.
Comment: An agency recommended adding a definition for ``excused
absence.''
OPM response: The Act did not define ``excused absence'' and the
regulations refer to ``excused absence'' only in the definition of
Presidential directive, the meaning of which is self-evident.
Therefore, OPM is not adding this definition as we do not consider it
to be necessary.
Comment: One agency recommended that the definition of agency
conform to the definition of agency in the annual and sick leave
regulations.
OPM response: The term agency has differing definitions in five
other subparts of 5 CFR part 630. Accordingly, OPM has defined agency
in Sec. 630.1402 based on the statutory definition at section
6329a(a)(2). The definition of ``agency'' specified in the Act must be
applied in these regulations. OPM has also clarified the meaning of the
term agency in the context of describing an authorized agency official
empowered to make a determination and take action.
Section 630.1403--Principles and Prohibitions
Comment: One agency commented that the regulations governing agency
use of administrative leave are too restrictive and that, without a
statutory basis, they specifically target collective bargaining
agreements as well as administrative leave used for the benefit of a
labor organization. A union objected to the general principles set out
in Sec. 630.1403(a)(1), which the union said OPM based on unspecified
past OPM policy and guidance and unnamed Comptroller General decisions.
OPM response: The regulations establish parameters for the granting
of administrative leave in accordance with appropriations laws and for
differentiating administrative leave from on-duty time and other
authorized paid absences. The proposed rule at Sec. 630.1403(a)(1)
established three criteria where administrative leave is allowed: (1)
the absence is directly related to the agency's mission, (2) the
absence is officially sponsored or sanctioned by the agency, or (3) the
absence is in the interest of the agency or of the Government as a
whole. The proposed regulations reflected basic principles consistent
with the sense of Congress section of the Administrative Leave Act,
which references precedent by the Comptroller General and OPM
guidance.\20\ There are numerous Comptroller General decisions on
administrative leave and excused absence.\21\ OPM policy guidance on
administrative leave is provided in reference materials by OPM \22\ and
historically in the former Federal Personnel Manual. The list of
allowable criteria in the proposed Sec. 630.1403(a)(1) largely
mirrored OPM's longstanding guidance regarding the appropriate uses of
administrative leave. OPM's guidance, however, includes a fourth
category that was excluded from the proposed rule: ``The absence will
clearly enhance the professional development or skills of the employee
in the employee's current position.'' OPM has decided to add this
criterion to the list of allowable uses of administrative leave in the
final rule. Its inclusion allows agencies to act consistent with OPM's
longstanding guidance and provides the flexibility with which agencies
are familiar. OPM will be updating its guidance materials on
administrative leave to reflect these regulations.
---------------------------------------------------------------------------
\20\ See section 1138(b)(1) of the Act.
\21\ See e.g., Comptroller General decision B 156287, February
5, 1975, at <a href="http://www.gao.gov/products/452029#mt=e-report">http://www.gao.gov/products/452029#mt=e-report</a>.
Comptroller General decisions may be found at <a href="http://www.gao.gov/search?advanced=1">http://www.gao.gov/search?advanced=1</a>.
\22\ See infra note 5.
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Comment: Two agencies, three unions, and a professional association
commented on the provision at Sec. 630.1403(a)(4) that prohibits
agencies from establishing administrative leave as an ongoing or
recurring entitlement. One agency said that the provision appeared to
be aimed at banning all collective bargaining agreement language that
provides for the granting of administrative leave in specified
circumstances. Another agency asked if the provision prohibited agency
policy from addressing administrative leave for blood donations and
voting. Two unions objected on the basis that an employee who qualifies
for the administrative leave should receive it regardless of whether
the provision of the leave is recurring. One union said that this
provision was not needed because birthdays and the day after a Thursday
holiday could be listed as a specific prohibited use under paragraph
(b) of the section. The union also felt that
[[Page 102263]]
requiring leave to be granted on an ad hoc basis would lead to uneven
application. The professional association noted that, in its
experience, administrative leave for recurring events, like birthdays
and in conjunction with holidays, has not been granted to employees
with any frequency. In addition, it said that Sec. 630.1403(a)(4) as
it pertains to administrative leave in conjunction with holidays is
erroneous, in that these are generally granted under the administrative
dismissal authority at 5 CFR part 610, subpart C. The association also
believed that this section was contrary to the authority of the
President to close the Federal government by executive order.
OPM response: The proposed regulations at Sec. 630.1403(a)(4) were
not intended to bar recurring use of administrative leave; the intent
was to bar establishing a recurring use as an entitlement. The plain
language of the Act makes clear that the approval of administrative
leave is at the agency's discretion, and that such leave is not an
entitlement of the employee.\23\ OPM's intent was to ensure that
agencies retain control of administrative leave and are always able to
grant or deny use of such leave based on mission needs. Otherwise, the
authority could be used in a manner never contemplated by Congress--to
create new open-ended entitlements to ``holidays'' or new types of paid
leave entitlements with no agency discretion--an area over which
Congress has traditionally asserted control.\24\
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\23\ See section 6329a(b)(1), stating that an agency ``may''
approve administrative leave.
\24\ Congress has the authority to establish recurring
entitlements to paid time off in law (e.g., paid holidays under
chapter 61 or various types of paid leave under chapter 63), and,
thus, the creation of new recurring paid time off entitlements
should be reserved to Congress.
---------------------------------------------------------------------------
OPM appreciates these comments and clarifies that this provision
does not prohibit agencies from providing administrative leave on an ad
hoc basis or limited basis for a recurring activity that otherwise
meets one of the acceptable use criteria. For example, agencies may
establish in policy, approved by the agency head, that authorized
agency officials may make ad hoc determinations to grant administrative
leave for a specified activity (e.g., blood donations or voting). Such
a policy might provide that a first-level supervisor can grant, on an
ad hoc basis, up to 4 hours of administrative leave to an employee to
donate blood in an agency-sponsored drive after determining that such
leave is appropriate.
OPM has revised the regulatory language to ensure that it conveys
the intended purpose--namely, that (1) administrative leave is not an
entitlement, and an agency retains the discretion to grant or not grant
administrative leave in any circumstance based on agency judgments
regarding mission needs, (2) generally, administrative leave should be
granted on an ad hoc, event-specific, or time-limited basis, and (3)
there is no categorical prohibition on administrative leave being
granted for a recurring event, but rather that it cannot be a recurring
entitlement that eliminates agency discretion.
The regulatory language in Sec. 630.1403(a)(4), moreover, does not
include separate requirements for recurring events like employee
birthdays or holidays. In the preamble to the proposed regulations, OPM
stated that agencies should not provide administrative leave for
employees' birthdays or the day following a Thursday holiday as a
recurring entitlement (that is, with no agency discretion to consider
mission needs). As explained above, OPM is clarifying in these
regulations that agencies may not use administrative leave to establish
recurring entitlements that eliminate agency discretion over granting
the leave.
A commenter expressed the view that Sec. 630.1403(a)(4) was
contrary to the authority of the President to close the Federal
Government by executive order. The President may establish a special
holiday under 5 U.S.C. 6103(b). Such a holiday is not a use of
administrative leave and is not governed by section 6329a or these
regulations.\25\
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\25\ See the definition of administrative leave under Sec.
630.1402.
---------------------------------------------------------------------------
A commenter also misunderstands the application 5 CFR part 610,
subpart C, which applies only to a very small segment of Federal
employees paid at daily, hourly, or piecework rates who could not
otherwise receive paid time off received by most employees (e.g., on a
holiday). It cannot be used as an authority to grant administrative
dismissals to other employees.\26\
---------------------------------------------------------------------------
\26\ See also section 6104.
---------------------------------------------------------------------------
Comment: Two agencies and a union asked for OPM to clarify whether
administrative leave is used for union official time. One agency felt
that the regulations specifically targeted administrative leave used
for the benefit of a labor organization.
OPM response: Union official time granted pursuant to 5 U.S.C. 7131
is a specific type of work time during which the employee otherwise
would be performing the duties of the employee's assigned position, for
which grants of administrative leave would not be necessary or
appropriate. By definition, administrative leave does not include
activities that qualify as hours of work (Sec. 630.1402). Under
section 7131, official time is treated as work time for which employees
receive basic pay. Section 7131(a) and (c) authorize official time for
specific representational purposes. Section 7131(b) prohibits official
time for internal union business. And section 7131(d) provides
authority for an agency and exclusive representative to negotiate
official time for any other matter covered by 5 U.S.C. chapter 71 and
which they agree to be reasonable, necessary, and in the public
interest. Finally, payroll systems already have separate payroll codes
for the various categories of official time, which are not impacted by
these regulations. Therefore, agencies have sufficient authority to
provide official time for use by representatives of a labor
organization.
Finally, these regulations do not target any particular use or use
by any group. Rather, they are designed to comply with statutory
requirements and to implement Congress' intent as to what comprises the
acceptable uses of administrative leave.
Comment: One agency and two individuals were concerned with the
impact of the regulations on settlement agreements. The agency noted
that it made extended administrative leave substitutions on timekeeping
records pursuant to orders, settlements, and agency decisions. One
individual stated that excused absence under a third-party settlement
agreement should be excluded from the limits under subpart N.
OPM response: As a general principle, settlements must comport with
applicable law and regulation. They may not include provisions that
provide aspects of relief that the agency is not free to grant under
applicable law. If an agency determines, on a prospective basis, that
it is appropriate to use administrative leave under section 6329a as
part of a settlement agreement, such use will be subject to its
statutory conditions and regulatory requirements. If other statutory
authorities are relied on to grant paid nonduty status on a prospective
basis as part of a settlement agreement, then the paid nonduty status
is not considered to be administrative leave under section 6329a.
A retroactive period of paid nonduty status may be provided under
the Back Pay Act (section 5596) or under a settlement under that law.
Such a period of paid nonduty status does not
[[Page 102264]]
constitute administrative leave under section 6329a since it is not
``leave'' and is authorized by operation of another law. Retroactive
salary payments to cover a period of erroneous separation are a
correction of an erroneous personnel action that is authorized under
the back pay law. These payments would be included under the definition
of ``pay, allowances, and differentials'' in Sec. 550.803 (pay, leave,
and other monetary employment benefits to which an employee is entitled
by statute or regulation). They are payments for nonwork periods
authorized by the back pay law, not a use of discretionary
administrative leave, and should not be designated as administrative
leave in timekeeping records.
Comment: One individual commenter argued that agencies should not
grant administrative leave prior to a holiday.
OPM response: Administrative leave is an agency discretionary
authority; therefore, each agency makes determinations regarding when
and for what purposes (including as a goodwill gesture to address
employee morale) it provides administrative leave. The regulations at
Sec. 630.1403 set out certain principles and prohibitions on use of
administrative leave but do not otherwise restrict agencies from
exercising their discretionary authority in granting this leave. OPM is
adding a new paragraph (6) in Sec. 630.1403(a) that lists factors
agencies are required to consider as they develop policies and make
case-specific decisions regarding the use of administrative leave.
Consideration of these factors, in combination with guiding principles,
will help agencies exercise their discretion with respect to
administrative leave in a prudent manner.
Comment: Two unions opposed the provision at proposed Sec.
630.1403(a)(3) that states administrative leave is appropriately used
for brief or short periods of time. One of the unions stated that the
duration should be at the agency's discretion or as provided under
negotiated policies. Both unions recommended that OPM remove the
provision so as not to mislead agencies on Congressional intent.
OPM response: The ``Sense of Congress'' provisions at section
1138(b)(2) of the Administrative Leave Act explicitly state that
``administrative leave should be used sparingly.'' At section
1138(b)(1)(A), Congress recognized the ``established precedent of the
Comptroller General'' and ``guidance provided by the Office of
Personnel Management'' as having provided appropriate and reasonable
standards for Governmentwide administrative leave policy. Numerous
Comptroller General decisions have held that administrative leave
should be granted only for brief periods of time. This has been OPM's
longstanding policy as reflected in its historical guidance and its
public fact sheet on administrative leave. OPM notes that while Sec.
630.1403(a)(3) states that administrative leave is appropriately used
for brief periods of time, it also permits agencies the ability to
approve longer periods when appropriate, at their discretion. This
caveat is described further, below, with regard to agency-specific
policies established by the head of an agency.
Comment: An individual recommended that employees be permitted to
use administrative leave for voluntary community service.
OPM response: OPM does not believe that the proposed Sec.
630.1403(b)(4) would have barred administrative leave for voluntary
community service. It provided that such administrative leave was
permitted if it was officially sponsored or sanctioned by the head of
the agency based on the agency's mission or Governmentwide interests,
which ties these provisions with the general principles in Sec.
630.1401(a)(1). As explained previously, however, OPM will include a
fourth category to the general principles in Sec. 630.1403(a)(1) that
was excluded from the proposed rule: the absence will clearly enhance
the professional development or skills of the employee in the
employee's current position. The inclusion is consistent with OPM's
longstanding guidance. OPM also is not adopting the proposed
prohibition in Sec. 630.1403(b)(4), since it is unnecessary; the
requirements to satisfy one or more of the general principles in Sec.
630.1401(a)(1) and to operate under approved agency policies is
sufficient to prevent inappropriate use of administrative leave in
community service situations.
Comment: Another individual commented that the regulations should
discuss scenarios where administrative leave is not needed because
employees are considered to be on duty time. A second commenter
recommended that OPM add guidance that sets parameters on the granting
of administrative leave for holiday parties, employee recognition days,
and similar infrequent social events. A union commented that OPM should
note that on-duty activities such as award ceremonies and training can
be voluntary in nature.
OPM response: Certain activities occurring during an employee's
work hours are generally considered on-duty events for which
administrative leave does not apply. These include agency-sponsored
events (e.g., award ceremonies), employee human resources matters,
management-approved team-building activities (e.g., holiday social
gatherings), and training, conferences, and meetings that are
authorized under sections 4109 and 4110 and the regulations at Sec.
410.404. At the agency's discretion, attendance at these on-duty
activities can be voluntary. Other activities, although they occur
during employee work hours, are generally not considered on-duty
activities. For example, activities related to employee wellness and
health generally are not considered as duty time; however, longstanding
policy reflected in Comptroller General decisions is that the agency
interest in employee health justifies use of brief periods of
administrative leave for these activities. Agencies will retain
discretion in determining whether certain activities are on-duty events
for purposes of implementing the Administrative Leave Act and this
final rule.
Comment: A union believed that dual status employees should receive
administrative leave for required military medical examinations and the
diagnosis and treatment of medical conditions caused or aggravated by
military service.
OPM response: If the employing agency determines that this is an
appropriate use under the general principles at Sec. 630.1403(a), it
has the discretion to grant administrative leave.
Comment: One agency stated that the administrative leave definition
should exclude leave for Federal employees stationed overseas when they
observe foreign holidays. The same agency asked whether administrative
leave may still be provided for rest and recuperation (R&R).
OPM response: OPM has no authority under laws it administers to
authorize paid time off for local holidays in foreign areas beyond the
holidays provided under section 6103. An agency may, however, use the
administrative leave authority in section 6329a if it determines the
circumstances comply with the OPM regulations. For example, under Sec.
630.1403(a)(4) in this final rule, an agency must retain the discretion
to grant or not grant administrative leave in any particular
circumstance based on agency judgments regarding mission needs. An
agency cannot, therefore, create a paid holiday in a foreign area as an
absolute entitlement. We expect that agencies with employees in foreign
areas will determine whether to grant administrative leave in
connection with a foreign holiday to some or all employees on a case-
by-case basis. If
[[Page 102265]]
there is a safety-related basis for the time off, use of weather and
safety leave may be appropriate. Agencies may also continue to provide
administrative leave for R&R if the employing agency determines that
this is an appropriate use under the general principles at Sec.
630.1403(a).
Comment: Three agencies and a union sought clarification on
physical fitness activities during duty hours. One of the agencies and
the union recommended that physical fitness be classified as an on-duty
activity and not require the granting of administrative leave. One
agency asked if long-term physical fitness activities would be
prohibited as a recurring activity under Sec. 630.1403(a)(4). Two of
the agencies were concerned that the limitation on administrative leave
would have a negative effect on wellness programs, with one agency
stating that the limitation would significantly affect participation in
agency-sanctioned and administered physical fitness activities. The
same agency also requested that OPM clarify the application of this
rulemaking on employees who have physical fitness requirements in
connection to their position; i.e., military technicians of the
Reserves and National Guard who must maintain military membership as a
condition of employment of their civilian position. The union
recommended that these dual status employees be authorized to engage in
voluntary physical training as official hours of work.
OPM response: Agencies, at their discretion, may permit employees
with job-related fitness requirements (such as law enforcement
officers) to participate in physical fitness programs while on duty.
For other employees, physical fitness activities should normally be
performed outside of duty hours unless an employee is using annual
leave. When covered by a flexible work schedule, an employee may be
able to shift work hours to create mid-tour breaks during which
physical fitness activities may be performed. If an agency determines
it is appropriate to provide administrative leave for brief periods of
physical fitness activities for a limited time, it may grant such
administrative leave on an ad hoc basis.
The Comptroller General has found that ``official duty time'' for
physical fitness activities is appropriate only for employees covered
by a mandatory physical fitness program due to the strenuous nature of
the position.\27\ That decision indicated that administrative leave was
inappropriate for other employees in the absence of supporting guidance
from OPM. OPM later issued guidance to recognize that short periods of
excused absence (by definition, not ``duty'' time) could be provided to
employees in positions without mandatory physical fitness
requirements.\28\ All administrative leave granted under section 6329a,
including that which is granted for fitness programs, would have to be
recorded and reported, as described below.
---------------------------------------------------------------------------
\27\ See e.g., Comptroller General decision B-218840, Sept. 6,
1985, 64 Comp. Gen. 835 at <a href="http://www.gao.gov/products/438969#mt=e-report">http://www.gao.gov/products/438969#mt=e-report</a>.
\28\ See e.g., subchapter 11 of FPM Chapter 630, Sept. 23, 1991,
and FPM Letters 792-15, April 14, 1986, and 792-23, June 25, 1992.
---------------------------------------------------------------------------
Comment: An agency asked if the regulations will impact the 24
hours an agency grants for a Permanent Change of Station (PCS). The
agency also asked if the 10-workday limit impacts administrative leave
granted to new hires as a relocation incentive.
OPM response: Employees on approved house-hunting trips under
chapter 302, subpart C, of the Federal Travel Regulations are in duty
status and do not require administrative leave.\29\ Also, as explained
below, the 10-workday limit in section 6329a does not apply to this
type of leave.
---------------------------------------------------------------------------
\29\ See 41 CFR 302-5.17 and Comptroller General decision B-
203196, Feb. 3, 1982.
---------------------------------------------------------------------------
Comment: One union requested that OPM eliminate the requirement in
proposed Sec. 630.1403(a)(5)(i) that administrative leave be permitted
under policies established by the head of the agency and instead
require only that administrative leave be permitted under ``written
agency policies.'' The union said that the definition of head of the
agency is unclear and overly restrictive, noting its application to
Department of Defense subordinate departments.
OPM response: OPM does not consider the definition of head of the
agency in Sec. 630.1402 to be unclear. Agency is defined in that
section as meaning an Executive agency as defined at 5 U.S.C. 105.
Under the statute, Executive agency means an ``Executive department, a
Government corporation, and an independent establishment.'' The
Executive departments are set out at 5 U.S.C. 101 and include the DoD.
Therefore, under the regulations, administrative leave policies for
subordinate departments under the DoD, or any other agency, must remain
within the discretion of the agency and must be established (or
approved) by the head of the agency to help prevent abuse and to
address Congressional concerns about inappropriate use of
administrative leave. Agency heads are directly accountable for agency
administrative leave policies. This regulation does not mandate how
specific the agency top-level policy is and does not preclude
subordinate organizations from making more specific policies under a
delegation of authority. Those agency head policies may include general
principles as well as specific rules. An agency head may delegate
authority to lower-level officials to establish more specific policies
if they are consistent with the agency head's overarching policies. To
assist agencies in developing appropriate policies on use of
administrative leave, OPM is adding a new paragraph (6) in Sec.
630.1403(a) that lists factors agencies are required to consider.
Comment: Five agencies, a union, and an individual expressed
concerns with proposed Sec. 630.1403(a)(5)(ii), which provides that a
determination to grant administrative leave for an absence must be
reviewed and approved by an agency official higher than the official
making the determination (unless there is no higher-level official).
The agencies felt that this requirement diminished the authority of
first-level supervisors, who they believed should be able to grant
administrative leave for specific situations, such as blood donations
or for occasions where less than an hour is needed. Two agencies and
the union said a second level of review should not be needed where
administrative leave is provided under agency policy. One agency
believed the second level of review to be an administrative burden and
recommended that heads of agencies have the authority to delegate
further, such as to the heads of installations. Another agency said
that the requirement would be time consuming for second-level
officials, particularly for routine events. The union expressed concern
that the second level of approval would cause administrative delays to
the detriment of the employee, especially when the second-level
official is not in the same building or there is a time zone
difference. The union also said it was unaware of any evidence showing
administrative leave abuse not related to investigations and concluded
that the requirement for second-level review was unnecessary and
inefficient. The individual suggested allowing agencies to determine
the appropriate procedures and level of review.
OPM response: As explained above, agencies may establish policies,
approved by the head of the agency (or the agency head's delegee), that
provide specific circumstances (blood drives, voting, etc.) in which
supervisors may grant a stated amount of administrative leave to
employees without the need for
[[Page 102266]]
second-level review. OPM is revising the regulations to make clear that
second-level approval is not necessary when a specific type of use and
amount of administrative leave is permitted under agency head policies
or supplemental policies issued by agency officials with specific
delegated authority. At the same time, to support prudent use of
administrative leave, OPM is adding a new paragraph (6) in Sec.
630.1403(a) that lists factors agencies must consider in developing
policies on use of administrative leave.
Comment: An agency asked what the intent is for the prohibition on
administrative leave use for personal benefits in proposed Sec.
630.1403(b)(2) and whether it precluded agencies from providing
administrative leave for other purposes.
OPM response: The proposed Sec. 630.1403(b)(2) would have barred
administrative leave to participate in an event for the employee's
personal benefit or the benefit of an outside organization; however,
there was an exception to the bar based on a determination that the
employee's participation would satisfy one or more of the general
principles in Sec. 630.1401(a)(1). As explained above, however, OPM is
adding a fourth category to Sec. 630.1403(a)(1) that is excluded from
the proposed rule: the absence will clearly enhance the professional
development or skills of the employee in the employee's current
position. We are therefore not adopting the proposed prohibition in
Sec. 630.1403(b)(2), since it is unnecessary and arguably inconsistent
with the additional acceptable use in Sec. 630.1403(a)(1). The
requirement to satisfy one or more of the general principles in Sec.
630.1401(a)(1) and to operate under approved agency policies is
sufficient to prevent inappropriate use of administrative leave in
situations that provide a personal benefit to an employee or benefit an
outside organization.
Comment: One agency objected to the prohibition in proposed Sec.
630.1403(b)(3) against granting administrative leave to recognize the
performance or contributions of employees. The agency felt that this
provision limited an agency's ability to recognize its high performers
in a cost-effective manner.
OPM response: The provision at proposed Sec. 630.1403(b)(3)
prohibits an agency from granting administrative leave as a reward to
employees but does not limit the agency's ability to grant time off as
a reward under other legal authority. As OPM noted in the preamble of
the proposed rule, the proper personnel authorities for recognizing the
performance or contributions of employees are cash awards and time-off
awards (e.g., under section 4502(e) and 5 CFR 451.104).
Comment: Another agency commented that the regulations will
necessitate a change in the timekeeping for 10-month faculty at an
academy as their two non-working months were recorded as administrative
leave.
OPM response: OPM agrees; these employees are in an off-duty paid
status, not on administrative leave. The agency will need to work with
its payroll provider for the appropriate coding under the timekeeping
system.
Section 630.1404--Calendar Year Limitation
Comment: A union asked for clarification on whether the calendar
year for purposes of applying the 10-workday limit for placement on
administrative leave is January 1 to December 31 or is 12 consecutive
months from any day during the year. Two agencies recommended that, for
consistency, administrative leave be tracked by the year used for other
leave purposes. An individual said that all other leave (except
military leave) is based on the leave year and that using a calendar
year for administrative leave would be difficult. The individual
recommended using the leave year or payroll calendar year. The same
individual asked if a period of administrative leave that continues
into another year counts toward the 10-workday limit for the new year.
Another individual asked that OPM consider using a rolling year instead
of a calendar year. Another commenter suggested that OPM's proposed
rule, applying the 10-workday limitation to all administrative leave
was incorrect and that it should only apply to administrative leave for
investigative purposes.
OPM response: First, OPM agrees that the 10-workday limitation in
section 6329a of the Administrative Leave Act does not apply to general
uses of administrative leave, but instead was meant to apply to
management-initiated actions to ``place'' an employee on administrative
leave, with or without the employee's consent, for the purpose of
investigating an employee's conduct, performance, or other reasons
prompting an investigation that could lead to an adverse personnel
outcome. OPM is therefore modifying this aspect of its proposed rule.
Section 6329a states that: ``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.'' \30\ The language--``an agency may
place''--suggests that the action to put the employee in administrative
leave status is initiated and controlled by management, with or without
the employee's consent. Indeed, this is the same language that Congress
used to describe an employee being in investigative leave or notice
leave.\31\ It is plainly not the language that Congress used throughout
5 U.S.C. chapter 63 to describe other types of leave. Instead, chapter
63 uses the more obvious ``grant,'' and it does so with respect to
multiple types of leave.\32\ Also, there is a direct connection to the
10-workday annual limit in the law governing investigative leave in
section 6329b. Section 6329b(b)(3)(A) bars use of investigative leave
until the ``expiration of the 10 workday period described in section
6329a(b)(1).'' This connection supports the conclusion that the 10-
workday annual limit was intended to cover the same investigations as
those described in section 6329b, not more general uses of
administrative leave.
---------------------------------------------------------------------------
\30\ Section 6329a(b)(1) (emphasis added).
\31\ Section 6329b(b)(1) (``An agency may . . . place an
employee in investigative leave if the employee is the subject of an
investigation; [or] notice leave if the employee is in a notice
period.); Section 6329b(b)(2) (``An agency may place an employee in
[investigative leave or notice leave] only if the agency has
[identifying conditions]'').
\32\ See, e.g., section 6302(d) (``The annual leave . . . may be
granted at any time during the year''); section 6305 (``After 24
months of continuous service . . . an employee may be granted 24
months [of home leave]); section 6310 (``The head of the agency
concerned may grant leave of absence . . . to alien employees'');
section 6323 (``[Military leave] granted . . . shall not exceed 22
work days.'').
---------------------------------------------------------------------------
Moreover, interpreting the 10-workday annual limit as applicable to
more general uses of administrative leave could lead to illogical
results. Take, for example, an employee who in January is placed on 10
days of administrative leave for investigatory purposes. After those 10
days, the agency determines that there is no need to place the employee
on investigative leave and the employee returns to her normal work
status. If the 10-day annual limitation applies to general uses of
administrative leave, then, for the remainder of the year, the employee
would never be able to use administrative leave--not for voting, or a
blood drive, or a COVID vaccine, or any other plainly acceptable and
appropriate use--because the employee had already been placed on
administrative leave for investigatory purposes. OPM does not believe
that Congress intended such a nonsensical result.
This understanding of the 10-workday limitation on administrative
leave--that
[[Page 102267]]
it only applies to agency-directed placement on administrative leave
for investigative purposes--not only is firmly grounded in the
statutory text and structure but is also consistent with and supported
by the legislative history. The House and Senate Reports indicate that
the Administrative Leave Act was primarily created in response to
concerns about abuse related to disciplinary proceedings. Both Reports
heavily cite the 2014 GAO report specifically focused on these types of
abuses. The main impetus for the Act was to address (1) inconsistent
use of administrative leave among agencies and excessive use of
administrative leave while conducting misconduct and disciplinary
proceedings and (2) inconsistent recordkeeping which made oversight of
administrative leave difficult.
The legislative history evolved over time but remained focused on
administrative leave relating to employee performance, conduct, and
other reasons that would prompt an investigation.
The House Report stated that H.R. 4359 ``creates a standard process
for the use of administrative leave in cases of misconduct and poor
performance, which will help curb the overuse of administrative leave
within the federal government.'' It explained that, under the bill,
Federal employees could not be placed on administrative leave for more
than 14 days during any year for misconduct or poor performance. The
House bill's ``rules of construction'' emphasized this point, saying
``nothing in the amendment shall be construed to . . . limit the number
of days that an employee may be placed on administrative leave, or any
other paid non-duty status without charge to leave, for reasons
unrelated to misconduct or performance.''
The Senate Report on S. 2450 cited OPM administrative leave
guidance, including the four acceptable factors for granting
administrative leave, but did so as background and was not critical of
this guidance or the factors. The Senate bill's time cap focused on
limiting an agency from placing an employee on administrative leave for
a period of more than 5 consecutive days and addressed sections 301-
302, but only to say that the authority could not be used to get around
this consecutive-day limitation. It also stated that agencies should
not circumvent the consecutive-day cap by putting an employee on leave,
taking them off, and putting them back on again. Ultimately, the
language regarding the 5-day consecutive period and the reference to
sections 301-302 did not make it into the final statutory language of
the Administrative Leave Act. But the Senate bill's 5-day (consecutive)
cap was focused on investigation-related administrative leave.
The structure of the statutory language in section 6329a--``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''--
resembles the language in the Senate bill: ``An agency may place an
employee in administrative leave for a period of not more than 5
consecutive days.'' As explained further, below, section 6329b(b)(3)
references this 10-day period, stating ``Upon the expiration of the 10
work day period described in section 6329a(b)(1) with respect to an
employee, and if an agency determines that an extended investigation of
the employee is necessary, the agency may place the employee in
investigative leave for a period of not more than 30 work days.'' The
Senate bill, S. 2450, regarding ``investigative leave and notice
leave'' proposed a similar clause relating to investigative leave
titled ``Duration of leave,'' which states that, ``Subject to
extensions of a period of investigative leave for which an employee may
be eligible . . ., the initial placement of an employee in
investigative leave shall be for a period not longer than 10 days.''
Under S. 2450, if additional time was necessary after the ``initial
placement,'' the employee could then be placed on extended
investigative leave. This parallel structure further supports the
position that the 10-day period in section 6329a was meant to apply to
administrative leave for investigative purposes and that, at the
expiration of that ``initial placement,'' if necessary, the employee
would be placed on a period of investigative leave.
In sum, the best reading of the relevant 10-day provision, based on
the text, structure, and legislative history, is that it applies only
to agency-directed placement on administrative leave for investigative
purposes, including prior to placement on investigative leave, but
excluding placement on general administrative leave related to other
allowable uses. Accordingly, we are revising the proposed regulations
in Sec. Sec. 630.1404 and 630.1504(a). As part of the revisions, we
are clarifying that the bar in section 6329b(b)(3)(A)--under which
investigative leave may not be used unless the 10-workday annual limit
has first been met--applies only to the placement of an employee on an
initial period of investigative leave. The bar does not apply to an
extension of investigative leave under section 6329b(c) (regulated in
Sec. 630.1504(f)) or a further extension of investigative leave under
section 6329b(d) (regulated in Sec. 630.1504(g)). Thus, for example,
if a particular investigation of an employee begins in one calendar
year and is extended or further extended in the next calendar year,
there is no requirement to use 10 workdays of administrative leave for
investigative purposes before approving an extension in the next
calendar year.
Section 6329a(b)(1) also requires that the ``calendar year'' be
used for this purpose, which in common usage is January 1 to December
31. OPM does not believe that any other period was intended by
Congress. Because OPM has determined that the 10-workday annual limit
applies only to administrative leave for investigative purpose, such
administrative leave counts only against the 10-workday limit in the
year it is used. For example, a six-day continuous period (excluding
non-workdays) of administrative leave split evenly over the end of 2024
and the beginning of 2025 would have 3 days applied to each year's
limit.
Comment: Three agencies, one union, and one individual opposed the
requirement in proposed Sec. 630.1404(a) that administrative leave
used in different agencies must be aggregated so that an employee can
be placed on administrative leave for no more than 10 workdays across
agencies. One agency and the union said that the requirement to
aggregate is not contained in the law. The union believed that, if
Congressional intent was that this leave should be aggregated, the law
would have stated the requirement differently. The union said that
Congress clearly wrote the law to cover only an individual agency. One
agency commented that the regulation imposes an unnecessary reporting
and tracking requirement. Another agency said the requirement places an
administrative burden on the new agency. A third agency noted that
employees who reached their administrative leave limit because of an
investigation, even though cleared, could not be granted administrative
leave at the new agency. The individual believed that OPM's
interpretation places an undue restriction on agencies that hire an
individual who already reached the 10-day cap at the individual's
former agency.
OPM response: As explained above, OPM reads section 6329a(b)(1) as
applying the 10-workday annual limit only to administrative leave in
which an employee is placed for investigative purposes. Because of this
determination, OPM agrees that the annual limit applies on a per-agency
basis.
[[Page 102268]]
Otherwise, the result would not track the intent of Congress and the
purpose of the statute, as it would mean that one agency may place an
employee on 10 days of leave pending an investigation; but, if the
employee moves to another agency, then the second agency would not have
the 10 days available within the same calendar year if needed. The 10-
workday annual limit was intended to allow an agency to remove an
employee from the workplace in the initial stages of an investigation
without having to invoke the additional procedures in section 6329b.
The annual count should therefore reset when an employee moves to
another Federal agency. OPM is revising Sec. 630.1404 to make clear
that the 10-workday annual limit separately is applied to each agency
that employs the employee during a calendar year. OPM is not adopting
proposed paragraphs (c) through (e) of Sec. 630.1404, since those
paragraphs were based on the prior interpretation that the 10-workday
annual limit applied to all types of administrative leave. Also, OPM is
not adopting proposed Sec. 630.1407, which would have imposed special
recordkeeping and reporting requirements for employees who transferred
or separated from an agency so that a gaining agency employing the
employee in the same calendar year would be able to apply the 10-
workday annual limit on administrative leave. With OPM's revised
reading of the 10-workday limit and its application to employees
transferring agencies within a calendar year, this section is no longer
applicable.
Comment: An individual asked, in relation to the conversion of days
to hours in proposed Sec. 630.1404(b), how to determine the limit if
part-time employees change their schedule in the middle of a period of
administrative leave. The commenter also asked how to calculate the
limitation if the change is retroactive.
OPM response: Under this final rule, the 10-workday annual limit
applies only to administrative leave for investigative purposes. While
that narrows the affected population of employees, there remains a need
to address the calculation of days for employees in that population who
have part-time or uncommon tours of duty. The proposed regulations on
the 10-workday annual limit did address such employees but did not
address the scenario of an employee switching to a different type of
work schedule during the calendar year. OPM is adding a new paragraph
(b)(4) in Sec. 630.1404 to provide a methodology for addressing this
scenario. In general, the methodology requires converting hours of
administrative leave for employees on part-time or uncommon tours of
duty to their equivalent value for an employee on a full-time tour.
Then the actual hours of administrative leave used as a full-time
employee and the converted hours of administrative leave used as a
part-time or uncommon tour employee can be summed together and the
resulting sum would be applied against the 80-hour limit for full-time
employees. This can be done on a retroactive basis, where the result
could mean that the employee's placement on administrative leave for
investigative purposes has met or exceeded the limitation and any
additional leave for investigative purposes would have to comply with
the requirements of section 6329b.
OPM is also adding a new paragraph (j)(4) in Sec. 630.1504
(dealing with the 30-workday and 70-workday limits associated with
investigative leave) to address the same scenario of changing work
schedules by incorporating the same methodology used in Sec.
630.1404(b)(4).
Comment: Two unions, four agencies, and two individuals opposed the
requirement in proposed Sec. 630.1404(d) that agencies must first
exhaust an employee's 10-workday limit on administrative leave before
placing the employee on investigative leave. One union commented that
there is no requirement in the Administrative Leave Act to first
exhaust the limit on administrative leave. Both unions and two agencies
noted that an employee placed on investigative leave, even though
cleared during the investigation, could no longer be granted
administrative leave for the remainder of the calendar year. An
individual similarly thought the requirement was unfair. Another
individual said there was no explanation for why administrative leave
must be exhausted before investigative leave is used but not before
notice leave is used. An agency said that the requirement is confusing,
will be difficult to administer, and has no added value.
Additionally, a professional association said that the Act only
specifies a 10-day cap on administrative leave with regard to
investigative leave. The association believed the imposition of a 10-
day cap on all administrative leave by the regulations would inhibit
meetings between agency leaders and professional associations. Another
agency asked that OPM clarify how it is not enforced leave when an
agency is required to place an employee in nonpay status when the 10-
workday cap is exhausted and the employee is not able to work or use
leave during new administrative leave events.
OPM response: Section 6329a(b)(1) of the Administrative Leave Act
specifies that an agency may not ``place'' an employee on
administrative leave for more than 10 workdays per calendar year.
Section 6329b(b)(3)(A) expressly requires that the 10-workday period of
administrative leave be exhausted before an employee can be placed in
investigative leave. (There is no similar requirement regarding notice
leave.) In OPM's proposed regulations, we interpreted the 10-workday
annual limit in section 6329a as applying to all types of
administrative leave. Based on comments received and further analysis,
we have revised our reading of this section, as explained elsewhere in
this preamble. These regulations provide that the 10-workday annual
limit applies only to administrative leave in which an employee is
placed for purposes of an investigation of an employee's conduct,
performance, or other reasons prompting an investigation. We conclude
that the purpose of the 10-workday annual limit is to allow an agency
to commence an investigation expeditiously without the additional
requirements that follow in section 6329b. This revised reading
addresses various concerns raised by the commenters. For example, and
as explained above, this revised reading avoids situations where
employees placed on administrative leave and later cleared of any
wrongdoing following an investigation are deemed nevertheless to have
exhausted their available annual allotment of administrative leave.
Comment: An agency stated that the requirement to place an employee
in a leave without pay (LWOP) status may be appealed by the employee as
a ``constructive suspension'' if the employee did not request it.
OPM response: As explained above, OPM has revised its
interpretation of section 6329a to clarify that the 10-workday annual
limit only applies to administrative leave for investigative purposes.
This change should address the agency's concern regarding scenarios
that could lead to LWOP status, since such a status will not be
triggered by the effects of these regulations. Comment: An agency asked
if there is an exception to the 10-workday limitation that would allow
employees more time to participate in Employee Assistance Program (EAP)
services.
OPM response: As explained above, OPM has revised its
interpretation of section 6329a to clarify that the 10-workday annual
limit applies only to administrative leave for investigative
[[Page 102269]]
purposes. An employee's participation in EAP services would be at the
agency's discretion based on the Administrative Leave Act, these
regulations, the agency's policies, and any other authorities or
guidance relating to administrative leave.
Section 630.1406--Records and Reporting
Comment: Three agencies commented that ample time is needed to
modify time and attendance systems because of the new reporting
requirements. A fourth agency said that WebTA will need to be revised
to include the new categories of leave. One of the agencies said that
the systems should have the capability for alerts when leave limits are
exceeded. An individual asked if the reporting will be in hours rather
than days.
OPM response: OPM is working with agency payroll and shared service
providers to prepare for the modification of current recordkeeping
systems to accommodate the new data reporting requirements. As provided
by the statute, agencies have 270 calendar days from the date of
publication of these regulations to make the necessary changes in their
recordkeeping and reporting systems. Agencies should communicate any
needs for special functionality, such as alerts, to their payroll and
shared service providers. Reporting of administrative leave will be by
hours (or fractional increments of hours) used, not days of use.
Comment: One agency recommended eliminating the reporting of
administrative leave that is used for investigative purposes, noting
the extra burden involved and arguing that the law does not require
reporting this category of leave.
OPM response: Section 6329a(c)(1)(B)(ii) requires OPM to regulate
the proper recording of administrative leave. There is no exclusion for
administrative leave used for investigative purposes. It is important
to identify this specific usage, just as it is important to track how
the other types of leave under the Act are used, especially since this
type of administrative leave counts towards the 10-workday annual limit
in section 6329a. OPM also anticipates Congressional interest in data
on leave used specifically for investigative purposes separate from
data on administrative leave used for general purposes. Therefore, we
are not removing the requirement for the reporting of administrative
leave used for investigative purposes.
Comment: The same agency recommended that OPM create two new
timekeeping codes--one for back pay to preclude it from being recorded
as administrative leave, and another for weather and safety leave to
preclude individual agencies from developing their own specific code.
OPM response: OPM does not set the timekeeping codes used by
agencies and therefore does not create these codes. Payroll and shared
service providers specify the timekeeping codes to be used by their
client agencies. In terms of data reporting to OPM's central payroll
data system, OPM will establish data categories for the new types of
leave established under the Administrative Leave Act. OPM established a
payroll data category for weather and safety leave in 2018. OPM
anticipates establishing a catch-all data category for paid time off
granted under any authority that is not covered by any other specific
payroll data category. OPM also may consider establishing data
categories for other types of paid time off.
Comment: Two unions raised concerns about the protection of
employees' rights under the Privacy Act (section 552a) with respect to
agency records and reports on the use of administrative leave. The
unions were concerned about the possible inappropriate dissemination of
recorded details regarding the purpose of the leave (e.g., medical
concerns) or other sensitive information. They indicated a need for
additional instructions for agencies to protect employees from
inadvertent or improper disclosures. One of the unions recommended that
OPM provide more detailed instructions in Sec. 630.1406 regarding the
reporting requirements.
OPM response: Any records an agency keeps on the use of
administrative leave are subject to regular Privacy Act requirements.
Section 630.1406 requires that usage of administrative leave under
section 6329a and subpart N be recorded and reported using two
subcategories: (1) administrative leave used for investigative purposes
and (2) administrative leave for all other purposes. Section 630.1406
does not require the recording or reporting of additional details
regarding why administrative leave was granted. However, section
1138(d)(2) of the Administrative Leave Act requires GAO provide reports
to Congress every 5 years that evaluate the use of the section 6329a
authority to grant administrative leave. Therefore, it is conceivable
that GAO could seek additional information to the extent it is
available in agency records.
Section 630.1407--Separation or Transfer
Comment: Four agencies commented on the certification and
transmittal of administrative leave records for transferring employees.
One agency stated that the new procedural requirements represent a
significant administrative burden for agency compliance. The agency
requested clarification on the manner of certification required and
recommended that ample time be provided for agencies to make changes to
their automated systems. The agency also recommended that OPM change
the word ``one'' in the first sentence to ``each.'' Another agency
asked if OPM will update Standard Form 1150 (Record of Leave Data) to
accommodate the data reporting. Two other agencies expressed concern
about the ability to transfer administrative leave records without
modifications to the current system.
OPM response: OPM is not adopting the proposed Sec. 630.1407,
which had required transmittal of administrative leave records for
transferring or separating employees. This change was made because OPM
is clarifying that the 10-workday annual limit in section 6329a resets
if an employee is transferred to a new agency.
Comment: An individual asked how the gaining agency will know the
number of administrative leave days that have been used, especially for
part-time employees, if the reporting is in hours. The individual also
asked about situations where a part-time employee transfers to a full-
time position with another agency or a full-time employee transfers to
a part-time position and more hours are used under the full-time
position than the part-time position allows.
OPM response: Administrative leave, like other forms of leave, must
necessarily be used and recorded in increments of hours (or appropriate
fractions of an hour). Thus, OPM's regulations provide that
administrative leave must be converted to hours, considering whether
the employee had a full-time, part-time, or uncommon tour of duty
(Sec. 630.1404(b)). The proposed regulations did not address the
scenario of an employee changing the type of work schedule during a
calendar year, but OPM is adding a provision in the issued regulations
to address this scenario. (See the new paragraph (4) in Sec.
630.1404(b).) Because the regulations apply the 10-workday annual limit
only to administrative leave for investigative purposes, the need to
track hours vis-a-vis the limit
[[Page 102270]]
and to convert hours for employees with part-time and uncommon tours of
duty is confined to uses of administrative leave for investigative
purposes. We note, as described above, that the 10-workday annual limit
in section 6329a resets if an employee is transferred to a new agency.
Subpart O--Investigative Leave and Notice Leave
General Comments
Comment: An agency observed that the proposed regulations did not
address how to handle active investigation cases that are ongoing at
the time the subpart O regulations become effective. The agency
requested guidance regarding whether employees in ongoing cases on the
implementation date would (1) be placed in an initial period of 30
workdays of investigative leave or (2) be placed first on
administrative leave until the 10-workday limit is exhausted and then
on investigative leave.
OPM response: An agency must revise and implement its internal
policies to comply with subparts N and O within 270 days after
publication of these regulations. Afterwards, use of administrative
leave for investigative purposes must comply with these regulations by,
first, exhausting the use of administrative leave under subpart N,
followed by placing the employee on investigative leave under subpart
O. The agency should not count any time an employee spent in an
administrative leave status, even for investigative purposes, prior to
it revising and implementing its internal policies towards the
limitations established in these regulations.
Comment: An individual presented a scenario in which an employee
who holds a non-critical sensitive position loses clearance eligibility
and files an appeal over such loss. There are no non-critical sensitive
positions in which to place the employee pending adjudication of the
employee's appeal, and since an indefinite suspension is not
permissible on grounds of clearance suspension, the commenter asked how
this situation would fit under the proposed rules. An agency commented
that the proposed regulations do not adequately address situations in
which an employee's security clearance has been revoked or suspended
and they are unable to perform work without proper security clearance.
Employees are therefore placed on administrative leave in adherence
with adjudicative requirements and to secure information pending final
determination of their appeal of the revocation or suspension. The
agency stated that the proposed regulations need to provide additional
clarity regarding ``alternative use of administrative leave.''
OPM response: If an investigation is being conducted by an
investigative entity (as those terms are defined under Sec. 630.1502),
in connection with the suspension or revocation of a security
clearance, or an appeal from such an action, and the agency completes
the required determinations of Sec. 630.1503(b), then the agency may
place the employee on administrative leave for investigative purposes
until the 10-workday annual limit is exhausted, and then on
investigative leave. The commenter's reference to ``alternative use of
administrative leave'' appears to refer to what the statute calls
investigative leave. Based on this comment, OPM will further amend the
regulatory definition of the term investigation at Sec. 630.1502 to
make clear that periods of time during which an appeal of a security
clearance revocation or suspension is pending should be considered part
of an investigation within the meaning of this regulatory framework.
Notice leave would not be applicable until such time as the employee
receives notice of a proposed adverse action. To clarify that
investigative leave may only be used when an investigation is being
conducted by a person or persons meeting the definition of the term
investigative entity, OPM is amending the definition of the term
investigation to specifically refer to ``an inquiry by an investigative
entity.'' Separately, under this hypothetical example, an agency may
seek an indefinite suspension pending a final determination once it
preliminarily determines to suspend or revoke an employee's access, or
eligibility for access, to classified information, in the absence of
contrary provisions found in an internal agency policy or collective
bargaining agreement. Investigative leave under this scenario,
therefore, is not the only available option.
Comment: An agency commented that the proposed regulations should
include an additional category of leave that allows an agency to use
excused absence from duty when a petition for review is pending before
the Merit Systems Protection Board (MSPB or Board). Currently, if an
Administrative Judge reverses or mitigates a removal action, an agency
is required to place the employee back in a pay status even if the
decision is appealed to the full Board for review. The agency concluded
that, under the proposed regulations, an agency would be limited to
using the 10 workdays of general administrative leave under subpart N
and then be required to return the employee to a duty status. The
agency believes that this is problematic since the employee does not
meet the criteria for investigative leave or notice leave, yet it would
continue to be in the best interest of the government not to have this
employee in a duty status.
OPM response: By definition, the term administrative leave excludes
leave that is authorized under any other provision of law (section
6329a(a)(1)(B) and Sec. 630.1402). The agency comment is describing a
situation in which an Administrative Judge is providing interim relief
by restoring a separated employee to employment status pending the
outcome of a petition for review, as authorized under section
7701(b)(2)(A)(ii)(II) and 7701(b)(2)(B). Under those statutory
provisions, the agency may determine that the return or presence of the
employee at the place of employment would be unduly disruptive to the
work environment. If so, the employee is entitled to receive pay while
in nonduty status during that interim period as if in duty status.
Since another law authorizes pay for this type of nonduty status, it
would not be appropriate to use administrative leave.
Comment: An agency asked if investigative leave counts when
considering an excessive absence charge.
OPM response: Charges and penalties for attendance-related matters
are outside the scope of this regulation. OPM notes, though, that in
this scenario, the employee would be placed on investigative leave by
action of an agency so we would not generally consider it appropriate
to include investigative leave as a basis for an excessive absence
charge. Additionally, it would not be appropriate to place an employee
on investigative leave pending a potential adverse action if the
employee is already absent from duty and, therefore, in a leave status.
Comment: An agency asked if OPM will issue guidance or provide
further clarification on actions that take place during the
investigative process--specifically, whether it is appropriate to
include time preparing the investigative report and recommendations as
a part of the investigative process.
OPM response: An agency may appropriately include time spent
preparing an investigative report (including recommended actions) as
part of the investigation period and thus continue investigative leave
during that time. Similarly, as discussed in OPM's response to a
comment concerning the definition of the term notice period and its
potential impact on settlement
[[Page 102271]]
agreement negotiations, an agency may appropriately keep an employee in
investigation status and investigative leave status while it is
deciding whether to propose and/or preparing a notice of proposed
adverse action. Based on these observations, OPM has amended the
definition of the term investigation to include time spent preparing an
investigative report and recommendation(s).
Section 630.1502--Definitions
Comment: An agency commented that the definition of the term
investigation is overbroad and subjective. The agency stated that ``an
investigation is defined as alleged misconduct that could result in
adverse action.'' The agency further stated that it is unclear why the
definition only refers to adverse actions and that the language is
contradictory because there is a subsequent reference to disciplinary
action.
OPM response: The term investigation encompasses a variety of
inquiries that could eventually result in an adverse action as well as
internal probes expressly focused on whether to commence an adverse
action. Those actions could include, for example, an internal probe to
determine the appropriateness of continued eligibility for access to
classified information, or eligibility for logical or physical access
to agency systems and facilities, as well as inquiries by the agency's
Inspector General, the Office of Special Counsel, or the Attorney
General--focused on their areas of jurisdiction--that could eventually
produce information eventually leading to an action that is adverse to
the employee. OPM has modified the definition of investigation in this
final rule to remove the reference to disciplinary action. Finally, the
modified language used to define the term investigation allows for an
agency to fact-find and examine under a variety of circumstances and
situations.
Comment: An agency requested clarification on the meaning of
certain terms within the definition of investigation: specifically,
``similar authority,'' ``other matters that could lead to disciplinary
action,'' and ``disciplinary action.'' The agency believes these terms
are key to the scope of the new investigative leave provisions and,
therefore, important to clarify.
OPM response: The phrase ``or similar authority'' in the definition
of investigation refers to those agencies that operate under a
different statutory authority that is equivalent to 5 U.S.C. chapter
75. Those agencies take adverse actions (or their equivalents) under
authorities similar to 5 CFR part 752. The phrase ``other matters that
could lead to disciplinary action'' may include a variety of
circumstances and is intentionally broad to allow for agency discretion
in such situations. The term ``disciplinary action'' in the proposed
rule refers to an agency's administrative action taken to address an
employee's misconduct. Nevertheless, OPM has revised the definition of
``investigation'' to eliminate the term ``disciplinary action'' and
clarify that the regulation is intended to cover all types of matters
that could lead to outcomes adverse to the employee--not only adverse
actions taken under chapter 75 or similar authority.
Comment: An agency suggested the words ``logical'' access be
changed to ``logistical'' access, with respect to the definition of the
term investigation.
OPM response: The term ``logical access'' comes from Homeland
Security Presidential Directive-12 (HSPD-12), dated August 27, 2004,
and is used with respect to use of information systems.\33\ It is the
correct terminology in this context.
---------------------------------------------------------------------------
\33\ See HSPD-12, ] 12 (``As promptly as possible . . . the
heads of executive department and agencies shall, to the maximum
extent practicable, require the use of identification by Federal
employees and contractors that meets the Standard in gaining . . .
logical access to Federally controlled information systems.'').
---------------------------------------------------------------------------
Comment: A union referenced the proposed regulatory definition of
the term investigation--specifically, the third prong, ``other matters
that could lead to disciplinary action.'' It asked if, in situations
related to the investigation of an Equal Employment Opportunity (EEO)
complaint, management could use the third prong of the definition of
investigation to retaliate against the employee for filing an EEO
complaint. The union stated that there should be explicit language that
would not easily allow management to consider an employee who has filed
an EEO complaint to be ``under investigation'' and be placed on
investigative leave.
OPM response: The definition of investigation adequately describes
the scope of the matters that may result in an inquiry by an
investigative entity and the specific requested language is
unnecessary. An employee's EEO complaint may result in an EEO
investigation; however, that employee is not ``under investigation'' as
a result of filing a complaint. Filing an EEO complaint is a protected
right under existing statutes and there are existing laws to protect an
employee from reprisal. Accordingly, this regulation does not consider
the mere filing of an EEO complaint to be an action that could bring
the employee under investigation, require the use of investigative
leave, and lead to an adverse action.
Comment: An agency questioned whether the term investigative entity
includes agency attorneys under the category ``other agency
representatives.''
OPM response: The definition of the term investigative entity
provides examples of what may be considered an internal investigative
unit. It is not intended to be an exhaustive list. For example, agency
counsel could be considered part of an investigative unit as an agency
representative if they serve in that capacity.
Comment: An agency commented that the definition of investigative
entity should be expanded to include external investigative units of
any agency outside the agency granting investigative leave that have a
role in the investigation of an employee. Agencies or investigative
units outside the initial agency conducting the inquiry may be
responsible for delays, including civil, criminal, or judicial
proceedings that are not controlled by, or the responsibility of, the
investigating agency. The agency asserted that these delays would
require additional requests and approval of investigative leave beyond
the initial period of 30 workdays and subsequent extensions of 30
workdays not to exceed the 90-day limit. The agency recommended that
definition of investigative entity be amended as follows: ``(1) An
external federal, international, state, or local investigative
authority or internal investigative unit of an agency granting
investigative leave under this subpart, which may be composed of one or
more persons, such as supervisors, managers, human resources
practitioners, personnel security staff, workplace violence prevention
team members, or other agency representatives; . . . .''
OPM response: Section 6329b(a)(6) defines the term investigative
entity as a limited, enumerated list of entities within the federal
government. Because the Act already defines investigative entity in a
restrictive way, OPM has determined not to expand upon this language to
include ``external'' authorities not countenanced under the statute.
Comment: An agency commented that the proposed definition of the
term notice period may inhibit the ability to use notice leave in
circumstances where the parties engage in negotiation of a resignation/
retirement agreement, after investigative leave but prior to the agency
proposing an adverse action. The agency stated that, under the proposed
regulation, agencies could not place an employee on notice leave (prior
to
[[Page 102272]]
proposing removal) and that this may eliminate or adversely impact the
ability of the parties to engage in settlement negotiations (e.g.,
regarding resignation/retirement) or at least create a gap in coverage
in some circumstances while an agreement is being negotiated.
OPM response: The agency is correct in stating that use of notice
leave is restricted to the notice period. The regulation is consistent
with the Act, which expressly requires that the notice period begin on
the date an employee is provided notice of a proposed adverse action
(section 6329b(a)(9)). Until the notice of proposed adverse action is
issued to the employee, that employee will remain in investigation
status, and if the criteria are met, the employee will be in an
investigative leave status as well. Thus, an agency can avoid any gap
and provide for consecutive use of the two types of leave, as
appropriate.
Comment: An agency commented that proposed Sec. Sec. 630.1502 and
630.1505(b) both discuss the limits on the length of notice leave, but
there is ambiguity because the term ``duration'' does not appear within
the definition of notice period in Sec. 630.1502. The agency suggested
amending the definition of notice period so that it reads, ``Notice
period means a period, the duration of which begins on the date . . .''
OPM response: OPM does not view these sections as being ambiguous.
Section 630.1502 establishes that the notice period begins on the date
on which an employee is provided notice, as required by law, of a
proposed adverse action against the employee and ends on the effective
date of the adverse action or on the date on which the agency notifies
the employee that no adverse action will be taken. This period of time
is the duration of the notice period. Section 630.1505(b) establishes
that the placement of an employee on notice leave shall be for a period
not longer than the duration of the notice period.
Comment: A union recommended that the definition of participating
in a telework program in proposed Sec. 630.1502 be expanded to allow
employees who are eligible to participate in a telework program, but
not currently participating in such a program, to elect to voluntarily
telework in lieu of being placed on investigative leave, subject to
agency approval. The union stated this would be consistent with the
statutory goals of limiting the amount of time that an employee who is
under investigation is in a leave status and not performing work for
the agency.
OPM response: OPM's regulations in Sec. 630.1503(c) set how an
agency can ``require'' telework for employees who are currently (or
very recently) ``participating in a telework program.'' \34\ OPM has
determined that it would not be appropriate to require telework by
employees who are not currently (or very recently) participating in a
telework program since they would lack a voluntarily established
telework arrangement. There is, therefore, no need to amend the
definition of participating in a telework program to allow voluntary
telework, since the term is used in subpart O only in connection with
telework ``required'' by the agency. Voluntary telework is an option an
agency may consider. If an employee who has not been participating in a
telework program is willing to voluntarily begin such participation to
avoid being placed on investigative leave, and if the agency concludes
that permitting telework in these circumstances would not 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,
there is no regulatory bar and no need for a special authority. It is a
way of keeping the employee in duty status through telework duties,
which is consistent with Sec. 630.1503(b)(2)(i). Once an employee
begins to voluntarily participate in a telework program, the employee
would be a current participant and thereafter could be ``required'' to
telework in lieu of investigative leave.
---------------------------------------------------------------------------
\34\ The condition for current or recent participation is found
in Sec. 630.1503(c)(1)(iii), not in the definition in Sec.
630.1502.
---------------------------------------------------------------------------
Sec. 630.1503(a), (b), and (e)--Authority and Requirements for
Investigative Leave and Notice Leave; Baseline Factors
Comment: An agency stated that part of the intent of notice/
investigative leave is to protect the public from harm and that OPM
needs to be more specific as to whether this refers to co-workers or
any person in the public located anywhere, as this is a condition
agency management must consider in making a leave determination.
OPM response: OPM believes that the language of the regulation is
sufficiently clear. Section 630.1503(e) states that, in making a
determination regarding the criteria listed under paragraph (b)(1) of
that section, an agency must consider, in part, whether the employee
will pose an unacceptable risk to the life, safety, or health of
employees, contractors, vendors or visitors to a Federal facility.
Comment: An agency asked who is an ``authorized agency official,''
for determining investigative leave and notice leave.
OPM response: For notice leave and the initial placement on
investigative leave, the agency head has discretion to determine who
constitutes an authorized agency official.\35\ For extensions of
investigative leave, approval levels are set in statute and the
regulations.\36\
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\35\ See Sec. 630.1502 definition of agency in the context of
describing who can make determinations and take actions.
\36\ See section 6329b(c) and (d) and Sec. 630.1504(f) and (g).
---------------------------------------------------------------------------
Comment: An agency commented it is unclear whether second-level
approval is required for investigative leave and notice leave.
OPM response: Section 630.1403(a)(5)(ii) in this final rule
requires that general administrative leave under subpart N be
``reviewed and approved by an official of the agency who is (or is
acting) at a higher level than the official making the determination''
if the specific type of use and amount of leave for that use has not
been authorized under established agency policy, but this requirement
is not applicable to investigative leave and notice leave under subpart
O. Additionally, while incremental extensions of investigative leave
under Sec. 630.1504(f)(1) are permitted only if approved by the Chief
Human Capital Officer (CHCO) of an agency, or the designee of the CHCO
(or, in the case of an employee of an Office of the Inspector General,
the Inspector General or designee), there is no such requirement for
notice leave because extensions are not applicable to notice leave.
Thus, agencies have the discretion to establish the appropriate
authority level for granting notice leave within their organizations,
without regard to the regulatory requirements imposed for general
administrative leave and extensions of investigative leave.
Comment: Two agencies were concerned that agencies would be
required to take an employee off investigative leave during the period
between completion of an investigation and issuance of a notice of
proposed adverse action. One agency stated that requiring an employee
to come back to work during this period would defeat the intent of the
law and would run counter to the determination that placed the employee
on investigative leave in the first place. The other agency noted that
it is only after an investigation has been completed that an adverse
action is usually considered and, depending on the complexity of the
case, it takes time
[[Page 102273]]
to prepare a proposed adverse action. The same agency pointed to the
proposed regulation in Sec. 630.1504(h), which stated: ``An agency may
not further extend a period of investigative leave on or after the date
that is 30 calendar days after the completion of the investigation of
the employee by an investigative entity,'' suggesting there could be a
gap in leave.
OPM response: It is true that notice leave may not commence until
the employee has received a notice of proposed adverse action. The law
does not establish any particular cut-off event for investigative
leave; however, and, so long as the agency is still engaged in the
process of considering the evidence, framing potential charges, and
assessing whether any additional investigation is required, the agency
may reasonably regard the investigation as not yet concluded. As
described above, an agency can avoid any gap in leave by providing for
consecutive use of the two types of leave, as appropriate. An agency
may keep an employee in investigation status and covered by
investigative leave until it issues a notice of proposed adverse
action. The regulation Sec. 630.1504(h) referenced in one of the
agencies' comments does not prevent an agency from considering
necessary work on a planned notice of adverse action to be part of the
period of investigation. In any event, Sec. 630.1504(h) applies only
to ``further'' extensions of investigative leave under Sec.
630.1504(g).\37\ OPM is clarifying this in the issued regulations.
---------------------------------------------------------------------------
\37\ See also section 6329b(d)(1) and (3).
---------------------------------------------------------------------------
Comment: An agency referenced the preamble of the proposed
regulations related to Sec. 630.1503(a)(2)(i), which stated,
``Agencies should be mindful, however, of any internal procedures
related to the preparation and approval of adverse action before it is
issued.'' The agency commented that agencies should also be mindful of
collective bargaining provisions since compliance with such provisions
is required under chapter 71.
OPM response: OPM agrees that agencies should also be mindful of
relevant, enforceable collective bargaining provisions but notes that,
while some procedures and arrangements related to adverse actions are
negotiable, the right to discipline is reserved to agency management by
5 U.S.C. 7106.
Comment: An agency indicated that proposed Sec. 630.1503(b)
requires a ``determination'' to initially place an employee on
investigative leave or notice leave but does not clarify whether this
determination must be made in writing or identify who makes the
determination.
OPM response: The proposed regulations did not directly address
these points. The initial determination to place an employee on
investigative leave or notice leave will be made by the appropriate
agency official at the agency's discretion and after the agency has
made the required determinations. However, any extensions of
investigative leave must be approved by certain designated officials
based on a written determination. Based on the comment, OPM is revising
Sec. 630.1503(b) to explicitly require a written determination to
support the initial decision to place an employee on investigative
leave or notice leave. This is consistent with the recordkeeping
requirements in Sec. 630.1506, which requires that an agency maintain
an accurate record of the placement of an employee on investigative
leave or notice leave.
Comment: An agency stated that the word ``threat'' in proposed
Sec. 630.1503(b)(1)(i) either needs to be defined or changed to ``a
disruption to the workplace.'' Without this definition, the agency
contends that its managers will revert to the analysis in Metz v.
Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986) (directing
MSPB adjudicators to consider the listener's reactions, the listener's
apprehension of harm, the speaker's intent, any conditional nature of
the statements, and the attendant circumstances in sustaining adverse
actions based upon threats). The agency asserted that not all workplace
disruptions rise to the level of threat or imminent threat and believes
that the language in the proposed rule would limit management's
flexibility in removing employees from the workplace pending completion
of an inquiry or investigation.
OPM response: We understand the concern, although Metz dealt with
oral or written threats as the bases for the underlying adverse action,
and the court's analysis was limited to that specific scenario. The
Act, in contrast, uses the word ``threat'' to mean a broader variety of
risks the employee could pose toward agency people, information,
facilities, and information systems if the employee were permitted to
continue to have access to the workplace or agency systems during the
pendency of the employee's investigation. Thus, the word is used
differently than in Metz.
Consideration of this comment, however, has caused us to make
revisions. The statute, especially the fourth category of potential
harms, authorizes an agency to determine whether the employee's
presence is consistent with a legitimate Government interest. This
provision is similar to the undue-disruption determination regarding
interim relief in section 7701(b)(2)(A), which is unreviewable.\38\
Accordingly, we have added language to the proposed regulation at Sec.
630.1503(a) to make clear that all determinations made under section
6329b are within the authority of the agency.
---------------------------------------------------------------------------
\38\ See King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994).
---------------------------------------------------------------------------
Comment: A commenter stated that proposed Sec. 630.1503(b)(1)(ii)
is too narrow and the regulation should be broadened to address
obstruction, rather than just destruction of evidence, because
destroying evidence is only one way that an employee could obstruct, or
attempt to obstruct, an investigation.
OPM response: The language in Sec. 630.1503(b)(1)(ii) is the exact
language used in the Act. The language does not preclude obstruction as
part of the determination, especially since the fourth category under
the statutory requirements is broad, asking whether the continued
presence of the employee in the workplace during the investigation or
while in the notice period may ``otherwise jeopardize legitimate
Government interests.'' Accordingly, the requested revision is
unnecessary.
Comment: An agency referenced proposed Sec. 630.1503(b)(2)(i)
which sets the option, in lieu of investigative or notice leave, of
keeping an employee in a duty status by assigning the employee to
duties in which the employee does not pose a threat. The agency noted
that, while not stated in the proposed regulation, the preamble of the
proposed rule stated, ``The duties should be at the same grade level as
the employee's current position.'' The agency stated that they may not
have duties available at the same grade level as the employee's current
position, but they may have duties available at a lower-grade level and
it would be preferable to have the employee perform duties that further
the agency's mission, rather than placing the employee on
administrative or investigative leave.
OPM response: OPM agrees that, while employees should generally be
assigned duties at the same grade level as the employee's current
position, it may not always be possible. Such inability does not
prevent the agency from assigning the employee to other duties under
Sec. 630.1503(b)(2)(i) particularly when such duties are temporary in
nature as contemplated in this scenario.
[[Page 102274]]
Comment: Two unions referenced proposed Sec. 630.1503(b)(2)(ii),
which is related to the voluntary use of other forms of paid or unpaid
time off in lieu of investigative leave or notice leave. The unions
stated that this provision should be clarified so that agencies do not
overtly or implicitly encourage employees to use their other forms of
leave. The unions further stated that OPM should require agencies to
notify employees that the use of other forms of leave in lieu of
investigative leave is strictly voluntary and that the employee has the
right to use paid investigative leave instead.
OPM response: Consistent with section 6329b(b)(2)(B)(ii), Sec.
630.1503(b)(2)(ii) sets the option of ``allowing'' an employee to
voluntarily take leave (paid or unpaid) or other forms of paid time
off, as appropriate under the rules governing each category of leave or
paid time off. An employee who is under investigation or in a notice
period may elect to take annual leave, sick leave (as appropriate),
restored annual leave, or any leave earned under subchapter I of
chapter 63, U.S. Code. The employee may also elect to use other paid
time off to remain in a pay status, such as compensatory time off
earned through overtime work, compensatory time off for travel, and
credit hours under a flexible work schedule, as appropriate. An
employee may elect to take leave or other paid time off for which the
employee is eligible on an intermittent basis, as appropriate, during a
period of investigative leave or notice leave. As stated in the
preamble of the proposed regulations, ``Agencies may not require
employees to take accrued leave or other time off as a substitute for
investigative leave or notice leave.'' Section 630.1503(d)(1) provides
that an employee on investigative leave or notice leave must be
prepared to report to work at any time during the employee's regularly
scheduled tour of duty or must obtain approval of the appropriate leave
to eliminate the possible obligation to report to work if the employee
will be unable to report promptly if called. Because of this
requirement, it may be advantageous for an employee to voluntarily
request to use leave or time off in place of investigative leave or
notice leave if they may be unavailable to report to work. Because
Sec. 630.1503(b)(2)(ii) makes clear that use of other leave or time
off is voluntary, OPM is making no change to the provision.
Comment: An individual stated that the proposed Sec.
630.1503(b)(2)(ii) and (b)(3) are unclear and at odds with OPM's
explanation of them in the preamble to the proposed rule. The
individual asserted that the proposed regulations specify that, to
place an employee in investigative leave or notice leave, agencies must
consider allowing employees to voluntarily take leave and determine
that this option would ``not be appropriate,'' but that the regulation
contains no explanation of circumstances when it would not be
appropriate to allow an employee to voluntarily take leave during an
investigation or notice period. The individual argued that this could
lead to inconsistent implementation and confusion among Federal
agencies. The individual further stated that, if appropriateness is
measured solely by the rules governing each category of leave or paid
time off, an agency could potentially never determine to place an
employee in investigative leave or notice leave as long as the employee
had a positive balance of leave or other paid time off that could be
used during an investigation or notice period. The individual believes
OPM should clarify these provisions in the regulations and its
explanation to give agencies clearer guidance regarding the
circumstances under which it would not be appropriate to allow an
employee to voluntarily take leave in lieu of investigative leave or
notice leave.
OPM response: OPM disagrees and considers the regulations to be
clear as written. Section 630.1503(b)(2)(ii) states that an agency can
``allow'' the employee to ``voluntarily'' take leave (paid or unpaid)
or paid time off, as appropriate under the rules governing each
category of leave or paid time off. The language ``as appropriate under
the rules governing each category of leave or paid time off'' refers to
the permissible uses of the various types of leave. For example, under
Sec. 630.1503(b)(2)(ii), it would not be appropriate to allow an
employee to voluntarily take sick leave to avoid reporting for duty,
when directed, during a period of investigative leave or notice leave,
unless the leave was otherwise a permissible use of sick leave.
Accordingly, when the agency makes its determination under Sec.
630.1503(b)(3) as to whether any of the options under Sec.
630.1503(b)(2) are appropriate, the agency will find that Sec.
630.1503(b)(2)(ii) is not an available option if the agency denies the
employee's leave request. Conversely, if an employee requests leave
that is appropriate under the rules governing that category of leave,
then the agency will determine, under Sec. 630.1503(b)(3), that there
is an appropriate option. Section 630.1503(d)(1) requires that an
employee on investigative leave or notice leave be prepared to report
to work at any time during the employee's regularly scheduled tour of
duty or obtain approval of another form of leave, as appropriate, if
the employee will be unable to report promptly if called.
Comment: With respect to proposed Sec. 630.1503(b)(2)(ii), two
agencies asserted that it is unrealistic to assume an employee would
elect to take other forms of paid leave in lieu of administrative
leave. However, if an employee is on administrative leave, it would be
reasonable to require the employee to substitute more appropriate leave
types if the employee becomes ill, wishes to invoke annual leave to
take a trip, etc. The agencies recommended a modification to the
provision such that, while on administrative leave, an employee is
required to substitute with other paid leave where appropriate. The
agencies believed this change would allow agencies to record an
employee's time more accurately.
OPM response: The agencies' concern is already addressed within the
regulation. Section 630.1503(d) allows the employee to request annual
or sick leave (as appropriate) while on investigative or notice leave
because the employee must be prepared to report to work at any time
during the employee's regularly scheduled tour of duty. If the employee
anticipates a possible inability to report promptly, the employee must
obtain approval of another form of leave in advance of the date or
dates that the employee will be unavailable.
Comment: Two agencies referenced use-or-lose leave and its
relationship with proposed Sec. 630.1503(b)(2)(ii). The agencies noted
that this section does not address a situation when an employee is on
investigative leave or notice leave and has (or will have) an annual
leave balance in excess of the maximum carryover of 240 hours (for non
SES-employees). The agencies asked whether an agency can require
employees who are in a ``use-or-lose'' status to use their annual
leave, or if restored leave should be granted.
OPM response: The procedures and requirements for restoration of
annual leave are not impacted by this rule. Being placed on
investigative leave or notice leave does not relieve an employee of the
responsibility to schedule annual leave that would otherwise be
forfeited. If the employee fails to request and schedule the use of
annual leave that would otherwise be forfeited, the agency cannot
restore it to the employee. If the agency denies such
[[Page 102275]]
a timely request, the agency is required to restore the annual leave.
Comment: Two agencies asserted that the OPM proposed rule sets an
almost unattainable standard by requiring that an agency establish that
an employee ``will'' (as opposed to ``may reasonably'') pose a risk of
harm to others and/or Government property to justify placing the
employee on investigative leave or notice leave. The agencies stated
that ``reasonable'' concern should be sufficient to invoke
investigative leave or notice leave. One agency objected to language in
the proposed regulations stating that ``The agency may not arbitrarily
place individuals on investigative leave or notice leave based upon
fear of a future risk without engaging in an individualized assessment
that establishes that there is a significant risk of substantial harm
that cannot be eliminated or reduced by other means,'' and argued that
this assessment and high standard would create a less safe working
environment for civil servants, which was not the intent of Congress.
The agency suggested that the factors do not consider situations where
an employee's presence in the workplace is not a threat to safety but
would be disruptive and the agency should not have to reach the
threshold of threats of harm for an employee to be removed from the
workplace. The agency believed that requiring an agency to ``establish
that there is a significant risk of substantial harm'' hampers the
ability of that agency to continue everyday operations uninterrupted.
OPM response: OPM agrees that requiring a showing of a
``significant risk'' would set an inappropriately high standard.
Neither the Act nor the regulatory text establishes such a standard
though. Under Sec. 630.1503(b), an agency may place an employee on
investigative leave or notice leave when it determines that the
continued presence of the employee ``may'' (1) pose a threat to the
employee or others, (2) result in the destruction of evidence relevant
to an investigation, (3) result in loss of or damage to Government
property, or (4) otherwise jeopardize legitimate Government interests.
The baseline factors set out at Sec. 630.1503(e) guide the Sec.
630.1503(b) determination--each factor must be considered when
determining whether an employee should be placed on investigative leave
or notice leave. As noted in the proposed regulations, ``agencies
should exercise independent, reasonable judgment in evaluating each
particular situation,'' \39\ including the discretion and
responsibility to assess and determine what constitutes ``other impacts
of the employee's continued presence in the workplace detrimental to
legitimate Government interests'' under Sec. 630.1503(e)(3). An agency
has discretion to determine that an individual poses an unacceptable
risk to the life, safety, health, or privacy interests of others and/or
Government property, which is sufficient to invoke investigative leave
or notice leave. We have revised the regulation accordingly.
---------------------------------------------------------------------------
\39\ 82 FR 32268.
---------------------------------------------------------------------------
Comment: An agency noted that the baseline factors include an
evaluation of the duration of the risk; the nature and severity of the
potential harm; how likely it is that the potential harm will occur;
and how imminent the potential harm is. The agency believes that these
are difficult factors to evaluate and urges OPM to provide examples or
further explanation regarding these factors. The commenter also
requested OPM explain how agencies' policies regarding workplace
violence would impact any individual assessment.
OPM response: The baseline factors in Sec. 630.1503(e) are to be
used as a starting point when determining whether an employee should be
placed on investigative leave or notice leave. OPM expects agencies to
exercise independent, reasonable judgment in evaluating each particular
situation. The baseline factors, while a required consideration, are
meant to be applied to the specifics of each individual situation.
Agencies should review their workplace violence policies to determine
how they interact with the requirements of the new regulations.
Comment: A union referenced the baseline factors in proposed Sec.
630.1503(e), specifically (e)(1), ``the nature and severity of the
employee's exhibited or alleged behavior'' and asked if this would
apply to employee posts on social media.
OPM response: As previously noted, the baseline factors in Sec.
630.1503(e) are a starting point in determining whether an employee
should be placed on investigative leave or notice leave. Each baseline
factor must be considered. OPM expects agencies to exercise
independent, reasonable judgment in evaluating each situation, and
agencies should consult with their human resources office or their
general counsel's office, or both, to the extent appropriate, before
placing an employee on investigative leave or notice leave. An
employee's social media activity, either by itself or in conjunction
with other information, may prompt an evaluation under the baseline
factors.
Comment: An individual stated that the baseline factor at proposed
Sec. 630.1503(e)(3)(ii), regarding risk to the Government's physical
assets or information systems, should be amended to include intangible
assets, such as rights in intellectual property.
OPM response: The examples of legitimate Government interests in
Sec. 630.1503(e)(3) are not a comprehensive list. An agency may
consider other legitimate Government interests, including any
intellectual property rights the Government might possess as well.
Comment: An agency stated that there might be due process concerns
when an employee's access to government computers and/or systems is
terminated or suspended. The agency questioned how the agency would
allow the employee access to electronic data for the purposes of
``defending him/herself'' if an action were taken against the employee.
OPM response: This comment is outside the scope of this regulation.
The procedural requirements for taking an adverse or performance-based
action are not impacted by this rule.
Section 630.1503(c)--Required Telework
Comment: An agency asserted that proposed Sec. 630.1503(c)
establishes that telework is an alternative to investigative leave but
omits any reference to notice leave. The agency sought clarification
regarding whether telework is an option during notice leave.
OPM response: Section 630.1503(c) pertains to an agency's authority
to ``require'' an employee in an investigation status to telework. The
Administrative Leave Act added section 6502(c) in the telework law.\40\
The section expressly authorizes agencies to require an employee to
telework in lieu of investigative leave. Section 6329b includes agency
requirements for reporting on employees required to telework under
section 6502(c). But while section 6502(c) deals with required telework
as an alternative to investigative leave, there is no similar provision
providing for required telework in lieu of notice leave. However, there
is no prohibition on an employee teleworking, consistent with an
agency's internal policy, in lieu of notice leave, if the agency
determines that is appropriate. OPM does not believe further
clarification is necessary in the regulatory text.
---------------------------------------------------------------------------
\40\ See 5 U.S.C. 6502(c).
---------------------------------------------------------------------------
Comment: Two agencies observed that section 6502(c) seems to
require an agency to place an employee on investigative leave before
the agency
[[Page 102276]]
may require telework. One agency contended that an employee on
investigative leave cannot be teleworking at the same time, which
section 6502(c) seems to suggest is possible. The other agency
contended that OPM regulations were not consistent with section
6502(c)--that employees should be placed on investigative leave before
an agency can require telework. In addition, a union was concerned that
an employee performing required telework in lieu of investigative leave
would be considered, inaccurately, to be on investigative leave. The
union recommended adding an express statement in the regulations that
placement in a telework status does not constitute investigative leave
status.
OPM response: OPM agrees with one agency's conclusion that, by
definition, an employee in a required telework status is in a work
status, not an investigative leave status. Since ``work'' does not
constitute ``leave,'' OPM is not adding a statement to that effect, as
recommended by the union, because it is unnecessary. Also, in this
rulemaking, OPM interprets section 6502(c) to mean that telework may be
required only when the employee would satisfy the legal conditions for
investigative leave under section 6329b and would otherwise be placed
on such leave.\41\ If an employee should be placed on investigative
leave following the required 10-workday period in section 6329a, it
would not make sense to require a de minimis period of investigative
leave before required telework can begin. The key point is that an
agency may not require telework under section 6502(c) unless the
employee would be placed on investigative leave but for the telework.
---------------------------------------------------------------------------
\41\ See Sec. 630.1503(c)(1).
---------------------------------------------------------------------------
Comment: An agency and an individual questioned OPM's authority to
direct an employee to telework in lieu of investigative leave, since
telework has always been voluntary. The agency raised concerns that an
employee's home may not always be available for business purposes--
e.g., a spouse needs to use the home office or children are at home on
certain days.
OPM response: As described above, the Administrative Leave Act
added section 6502(c) in the telework law in 2016. It expressly
authorizes agencies to require an employee to telework in lieu of
investigative leave. Consistent with section 6502(c), Sec.
630.1503(c)(2) provides that any voluntary telework agreement must be
superseded as necessary to comply with an agency's action to require
telework. OPM is exercising its regulatory authority in a manner
consistent with the authority granted pursuant to the Act.
Agency telework policies will govern whether telework is
appropriate in specific circumstances. OPM notes that agencies can
change their telework policies and make special exceptions to policies
for employees who are required to telework under section 6502(c).
Comment: An agency recommended that OPM clarify in the regulations
that agencies have discretion to require telework in lieu of
investigative leave and to specify the duration and location of that
telework assignment (e.g., home versus agency telework center). The
agency stated this clarification would stem potential litigation under
collective bargaining agreements and provisions relating to voluntary
telework under the regular telework law. The agency noted a parallel
example of an OPM regulation in Sec. 531.605(d)(4) giving agencies
discretion to determine an employee's official worksite.
OPM response: OPM agrees with the agency recommendation. Section
6502(c) authorizes agencies to ``require'' telework based on agency
determinations.\42\ The authority to require telework necessarily
includes an obligation to specify the duration and location of the
telework assignment. Accordingly, OPM is revising the regulation at
Sec. 630.1503(c) to clarify that the agency determination to require
telework (including all related conditions and requirements), like the
other determinations under these regulations, are to be made at the
agency's discretion. Furthermore, since required telework is in lieu of
placement in an investigative leave status, OPM is revising these
regulations to require agencies to provide the employee with a written
explanation regarding the required telework, similar to the explanation
provided to employees when placed on investigative leave in paragraph
(c) of section 630.1504.
---------------------------------------------------------------------------
\42\ See the language ``the agency determines'' in section
6502(c)(1) and (3).
---------------------------------------------------------------------------
Comment: An individual commented that proposed Sec. 630.1503(c)(2)
is unnecessarily duplicative of Sec. 630.1503(c)(1)(ii).
OPM response: Paragraph (c)(1)(ii) of Sec. 630.1503 is a brief
restatement of the statutory requirements of section 6502(c)(2),
whereas paragraph (c)(2) explains the meaning of ``eligible to
telework'' as used in paragraph (c)(1)(ii). To avoid redundancy, OPM
has shortened paragraph (c)(1)(ii) to state only the statutory
requirement that an employee be eligible to telework with paragraph
(c)(2) providing additional details regarding eligibility and agency
implementation.
Comment: An agency noted that most agency telework policies
terminate or suspend participation for employees with either a conduct
or performance issue, which the agency viewed as conflicting with the
proposed regulation providing for telework as a possible alternative to
investigative leave. The agency contended that OPM would need to carve
out an exception to such agency telework policies. Two other agencies
expressed concern that telework would be seen as a reward for
misconduct and would likely produce no benefit for the agency. The two
agencies acknowledged that agencies would not be required to use the
telework option but were concerned that there would be pressure to
allow telework in these instances. The two agencies stated that
telework should not be allowed unless employees have a fully successful
performance rating, a good conduct record, and are not a potential
threat to agency facilities or personnel. An individual commenter
raised similar concerns about allowing employees with performance,
conduct, or behavioral problems to telework, contrary to normal agency
policies.
OPM response: While the Administrative Leave Act requires agencies
to consider certain options before approving use of investigative leave
(see section 6329b(b)(2)), the Act does not require agencies to
consider the telework option (see section 6502(c)). An agency has
discretion in deciding whether it will require telework by an employee
who would otherwise be placed in investigative leave, subject to the
conditions set forth in law and regulation. As stated in Sec.
630.1503(c)(1)(ii), telework may be required only if the employee is
eligible to telework under the conditions set forth in section 6502(a)
and (b)(4)--e.g., an employee is not eligible if the employee has been
officially disciplined for certain reasons, such as for viewing
pornography on a Government computer. As further stated in Sec.
630.1503(c)(1)(i), before an agency requires telework, it must
determine that it would not pose certain risks to Government personnel,
property, or other interests. After applying the above-described
conditions, the agency still has the discretion to not require telework
if it determines it would be inappropriate.\43\ Given the degree of
agency discretion, OPM does not believe the regulations would conflict
with agencies' existing telework policies. OPM notes that, although the
use of
[[Page 102277]]
telework is not subject to the approval and reporting accountability
measures in place for use of investigative leave, agencies should
continue to manage telework and hold employees accountable for
productive work based on their experience in administering telework
programs.
---------------------------------------------------------------------------
\43\ See Sec. 630.1503(c)(1)(iv).
---------------------------------------------------------------------------
Comment: Two agencies questioned whether agencies are responsible
for providing equipment necessary for an employee to telework when
required in lieu of investigative leave. One agency noted that the
preamble to the proposed regulations stated that an agency must provide
employees who are required to telework in lieu of investigative leave
with appropriate equipment. The other agency asked about funding the
employee's internet capability at home. Both agencies raised the
possibility of legal issues associated with requiring employees to
telework at home when they must consume personal resources to conduct
Government business. One agency also asked if OPM would be issuing
updated telework guidance in conjunction with this final rule.
OPM response: Congress provided specific legal authority in section
6502(c) for agencies to require telework in lieu of investigative
leave. Since telework will be required only for employees who are
current (or recent) \44\ telework program participants, it is
anticipated that any mandatory telework would be consistent with and
would apply the terms of the employee's regular telework arrangement
and that, as a condition of teleworking, employees would have already
satisfied all eligibility criteria, including procuring necessary
equipment. Any issues related to agency obligations to spend funds to
support telework in an employee's home are outside the scope of these
regulations. OPM will consider whether updating its existing telework
guidance and leave guidance is necessary.
---------------------------------------------------------------------------
\44\ See following comment and response for an explanation of
the qualification that telework participation be current or recent.
---------------------------------------------------------------------------
Comment: An agency objected to proposed Sec. 630.1503(c)(1)(iii),
which provides that telework may be required only for an employee who
has been participating in a telework program during some portion of the
30-day period immediately preceding the commencement of investigative
leave (or the commencement of required telework in lieu of such leave).
The agency stated that management should be given greater flexibility
to require telework by changing the regulation to either (1) have no
time requirement (i.e., require past participation at any time) or (2)
extend the time requirement from 30 days to 180 days. The agency
maintained that the law does not require that an employee must have
been participating in a telework program prior to being placed in one
in lieu of investigative leave.
OPM response: As OPM stated in the preamble for the proposed
regulations,\45\ this condition limiting telework in lieu of
investigative leave only for employees who are current (or recent)
telework program participants was based on OPM's understanding of
Congressional intent. Section 6502(c) references the eligibility
conditions in section 6502(b), which applies to ``participation'' in a
telework program. This language indicates that Congress intended to
allow agencies to require telework of employees who were already
telework program participants. The 30-day time period was adopted, in
part, as a protection against an employee cancelling participation in a
telework program shortly before the agency would require telework. OPM
considers this to be a sufficient period of time to accomplish that
objective.
---------------------------------------------------------------------------
\45\ 82 FR at 32270.
---------------------------------------------------------------------------
Comment: A union objected to the proposed Sec. 630.1503(c)(3),
which states an agency may place an employee in absent without leave
status if an employee who is required to telework under Sec.
630.1503(c)(1) is absent from telework duty without approval (i.e.,
AWOL). An agency also raised concerns about the possibility of placing
an employee on AWOL status. The union was concerned that an agency
might incorrectly determine that an employee on telework duty was
absent from work after a brief absence from the telework site or
failure to respond immediately to an inquiry from the employer. For
example, a supervisor might call the employee on telework duty when the
employee is teleworking from outside the home or unable to immediately
take the call and make the inaccurate assumption that the employee is
absent from telework duty. The union added this risk is compounded by
an employee's flexibility in determining a telework location.
OPM response: This regulation states that an agency ``may'' place
an employee in AWOL status if the employee is absent from telework duty
without approval, consistent with agency policies. Before placing an
employee in AWOL status, the supervisor must follow normal agency
policies to determine if the employee is absent without approval. The
regulation does not change these protocols. Agencies are also
responsible for ensuring that telework agreements clearly identify
expectations, including what constitutes an approved telework location.
OPM is therefore not changing this provision.
Comment: An agency understood that some employees not currently
eligible for telework could be required to telework in lieu of
investigative leave. The agency asked if there would be legislative
updates to the telework law or in OPM guidance on teleworkers.
OPM response: The regulations provide that telework may be required
only for an employee who is ``participating in a telework program,'' as
defined in Sec. 630.1502, during some portion of the 30-day period
immediately preceding the commencement of required telework.\46\ Also,
an employee may be required to telework only if he/she is eligible to
telework under section 6502(a) and (b)(4).\47\ The employee must
therefore be telework-eligible under the agency's normal telework
policies and must be a current or recent telework program participant.
The new section 6502(c) that authorizes required telework in lieu of
investigative leave is itself a legislative update. Forecasting any
additional legislative updates is beyond the scope of these
regulations; however, these regulations do not require any further
legislative updates. OPM will consider whether updating its existing
telework guidance and leave guidance is necessary.
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\46\ See Sec. 630.1503(c)(1)(iii).
\47\ See Sec. 630.1503(c)(1)(ii).
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Section 630.1503(d)--Reassessment and Return to Duty
Comment: Regarding proposed Sec. 630.1503(d)(1) and (d)(4), two
agencies asked for the specific time frame in which an employee would
be expected to ``report promptly'' if an agency requires the employee
to return to duty. A third agency asked OPM to consider adding
``normally within 2 hours,'' or include a reasonable standard that
would address what is meant by a ``prompt'' return to work. The agency
opined that the additional language would lead to less confusion
between managers and employees in determining whether an employee has
returned to duty ``promptly.''
OPM response: Agencies are responsible for establishing reporting
requirements and communicating expectations to employees when they are
notified of placement on investigative leave or notice leave, including
what is meant by ``report promptly,'' as this could vary depending
[[Page 102278]]
on an agency's and employee's particular situation.
Comment: An individual stated that proposed Sec. Sec.
630.1503(d)(1) and (d)(4) are substantially similar regarding the
employee's obligation to be available at any time and request leave if
unavailable and recommended edits for brevity and combining the
sections.
OPM response: OPM agrees that there is some redundancy between
paragraphs (d)(1) and (d)(4). In this final rule, the paragraphs are
revised to address that redundancy.
Comment: An agency recommended that proposed Sec. 630.1503(d)(4),
providing that an employee who is placed on investigative leave or
notice leave must be available to report promptly to an approved duty
location, should allow reporting at the start of the next business day
to be considered ``prompt'' reporting. The agency asserted that it may
be impossible for an employee to physically report to work on the same
day the employee is instructed to do so, given mass transit schedules
and other limitations on commuting over which the employee may have no
control. The agency asserted that, at a minimum, the employee should be
permitted to take leave (even if not requested in advance) for the
remainder of that day and report to work without penalty at the start
of the employee's tour of duty on the next business day.
OPM response: Agencies are responsible for establishing reporting
requirements and communicating expectations to employees when they are
notified of placement on investigative leave or notice leave, including
what is meant by ``report promptly,'' as this could vary depending on
an agency's and employee's particular situation.
Section 630.1504(b)--Duration of Investigative Leave
Comment: A union recommended that OPM revise the language in
proposed Sec. 630.1504(b) to clarify that any interruptions in
investigative leave would extend the amount of investigative leave
available by the number of days of interruption. The union asked if, in
the case of an employee whose initial 30-day period of investigative
leave is scheduled to end on July 15, but who opted to take 2 days of
sick leave in the first week of July, the period of investigative leave
would be extended until July 17.
OPM response: Technically, the period of investigative leave is not
extended by interruptions but the calendar date on which the employee
will have been placed on 30 workdays of investigative leave may need to
be adjusted if there are any interruptions in investigative leave. The
duration of investigative leave is based on the number of ``workdays''
on which an employee is on investigative leave. If a period of
investigative leave is interrupted, the employee is not on
investigative leave during the interruption, and those days would not
count against the 30-workday limit. Because investigative leave may be
charged solely on regular workdays, any paid holidays, for example,
would also interrupt investigative leave (see references to
``workdays'' in Sec. 630.1504). OPM will also emphasize this point in
its supporting guidance.
Comment: An agency asked if there is a limit to the hours of
investigative leave that can be authorized.
OPM response: There is no statutory limit; however, agencies must
comply with the requirements for approving extensions (Sec.
630.1504(f)) and further extensions (Sec. 630.1504(g)), both of which
may be made in increments of up to 30 workdays.
Comment: An agency stated that, under the proposed regulations,
agencies can extend the investigative leave and notice leave periods in
30-workday intervals, up to 90 workdays, and may extend the period
beyond 90 workdays where appropriate. The agency believed that these
``open-ended extensions'' are tantamount to unscheduled paid vacation
for employees suspected of misconduct and can, in some instances, be
viewed as disciplinary actions under chapter 75 without due process.
The agency proposed that the investigative leave and/or notice leave
periods be limited to 60 days with no extensions. The agency further
proposed that the CHCO be given the authority to delegate their
authority to grant or deny extensions.
OPM response: First, the agency is incorrect in its interpretation
that notice leave has extensions. Extensions are only applicable to
investigative leave. Additionally, the authority to allow extensions of
investigative leave beyond a total of 60 workdays is specifically
authorized by statute. The extensions to investigative leave are, by
definition, not open-ended, and are neither ``unscheduled paid
vacation'' (because the employee must be ready to return to work at any
time), nor a punishment (as the employee continues to be compensated).
The extensions are meant to further protect the Government from harm to
people, data, systems, and facilities while the investigation is
completed. Once the maximum number of extensions is reached under Sec.
630.1504(f)(2), further extensions require a report to Congress (see
Sec. 630.1504(g)). Accordingly, OPM will not adopt the agency's
proposal that investigative leave and/or notice leave be limited to 60
workdays. Regarding the agency's proposal that the regulations
authorize agency CHCOs to delegate their authority for granting or
denying extensions, the Act and rule already specify that incremental
extensions of investigative leave are permitted only if approved by the
CHCO of an agency or the CHCO's designee. There is no need to delegate
authority to deny a request for an extension, since extensions of
investigative leave will not occur without a positive approval.
Comment: A union referenced the preamble of the proposed Sec.
630.1504 which stated that ``[a]gencies are expected to expeditiously
work to resolve investigations'' (82 FR 32270). The union asserted that
this language does not appear in the text of the proposed regulations
and stated that it is important to include such language in the
regulations because many agencies do not give investigations the
appropriate level of urgency.
OPM response: In section 1138(b) of the Act, Congress indicated
that usage of administrative leave had, in Congress's view, exceeded
reasonable amounts and resulted in significant costs to the Government.
Congress stated that agencies should (1) use administrative leave
sparingly and reasonably, (2) consider alternatives to use of
administrative leave when addressing personnel issues (e.g., employees
are under investigation), and (3) act expeditiously to conclude
investigations and either return the employee to duty or take an
appropriate personnel action. Thus, agencies are expected, by statute,
to conclude investigations expeditiously and to take appropriate action
afterwards. We note, however, that some investigations covered by the
Act are controlled by an entity outside the employing agency, see 5
U.S.C. 6329b(a)(6), and that other investigations within the agency's
control may pose issues that require evidence that takes time to
gather. Neither the statute nor the regulations, therefore, impose a
time limit on the duration of an investigation but they do institute
accountability measures on the use of investigative leave, which will
encourage expeditious and appropriate resolution where the agency
controls the investigation.
Section 630.1504(c)--Written Explanation to Employee Regarding
Placement on Investigative Leave
Comment: Regarding the written notice to an employee under proposed
[[Page 102279]]
Sec. 630.1504(c), advising them that they are being placed on
investigative leave, an agency requested clarification as to the
information required and the information within the discretion of the
agencies to include through implementing policy. The agency also
requested clarification regarding whether an agency must include a
notice of appeal rights in a notice where the employee is placed on
investigative leave for 70 workdays or more, since that is deemed to be
a ``personnel action'' under the prohibited personnel practices
provisions.
OPM response: Section 630.1504(c) states that, if an agency places
an employee on investigative leave, the agency must provide written
explanation that (1) describes the limitations of the leave placement,
including the duration of leave; (2) includes notice that, at the
conclusion of the period of investigative leave, the agency must take
an action under paragraph (d) of this section; and (3) includes notice
that placement on investigative leave for 70 workdays or more is
considered a ``personnel action'' under the prohibited personnel
practices provisions at 5 U.S.C. 2302(b)(8)-(9). These required items
must be included in the written notice to the employee. Inclusion of
anything beyond these items is at an agency's discretion.
Comment: An association recommended that the written determinations
for investigative leave and notice leave detail the agency's rationale
for imposing the leave to assist a potential review by the MSPB, the
Office of Special Counsel, and others. Specifically, the association
requested an amendment to proposed Sec. Sec. 630.1504(c) and
630.1505(c) that agencies must, within the written explanation of leave
to the employee, ``explain the rationale for the agency's
determinations that the employee must be removed from the workplace
based on the criteria in Sec. 630.1503(b)(1) and that the options in
Sec. 630.1503(b)(2) are not appropriate.''
OPM response: Nothing precludes an agency from establishing a
policy for such a practice. OPM declines to mandate such a requirement
through regulation because, in some instances, prematurely disclosing
certain information could negatively affect the integrity of the
investigation.
Comment: An agency noted that section 6329b(b)(4)(A) provides for a
written ``explanation'' of whether the employee was placed on
investigative leave or notice leave and that the statute then details
in the requirements of the explanation. The agency stated that the
proposed rule suggests a greater agency burden regarding this
explanation than what is required under the statute and suggested
amending proposed Sec. 630.1504(c) to include the words ``consisting
of'' instead of ``must include.'' The agency also suggested amending
proposed Sec. 630.1505(c) in the same manner.
OPM response: The additional requirement that OPM added with
respect to the written explanation was to notify the employee of the
70-workday threshold for treating placement on investigative leave as a
``personnel action'' under the prohibited personnel practices
provisions in 5 U.S.C. 2302(b)(8)-(9). OPM determined that notice to
the employee of this treatment was important since it was provided
under the Act (section 6329b(g)). The other regulatory requirements for
the written explanation for an employee placed on notice leave are
consistent with statutory requirements. OPM merely clarified that the
notice period defined the limitation on notice leave. OPM is making no
changes based on these comments.
Comment: An individual stated it was unclear if the written
explanation is required if an employee is placed on 10 days of
administrative leave for investigative purposes.
OPM response: The written explanation required under Sec.
630.1504(c) applies only when an employee is placed on investigative
leave under section 6329b and subpart O. An employee cannot be placed
on such investigative leave until the employee has reached the 10-
workday annual limit on administrative leave for investigative purposes
under section 6329a and subpart N.\48\ Administrative leave for
investigative purposes is not ``investigative leave'' that requires a
written explanation. The regulations are clear in this regard, so OPM
will make no changes based on this comment.
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\48\ See section 6329b(b)(3)(A) and Sec. 630.1504(a)(1).
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Section 630.1504(d)--Agency Actions Related to Investigative Leave
Comment: An agency and a union commented regarding proposed Sec.
630.1504(d), which provides that not later than the day after the last
day of an initial or extended period of investigative leave, an agency
must take one of the following actions: return the employee to duty,
take one or more of the actions under Sec. 630.1503(b)(2), propose or
initiate an adverse action against the employee, or extend the period
of investigative leave. The agency noted that, pursuant to Sec.
630.1505(a), notice leave cannot be initiated until after a notice of
proposed adverse action is issued. The agency stated that Sec.
630.1504(d) presumably requires an agency to leave the employee on
investigative leave after the inquiry is completed to cover the
employee's absence from the workplace during the process of reviewing
the investigation and drafting any adverse action. The union asked if
it is OPM's position that the agency should continue to carry an
employee on investigative leave during the agency's various processes
related to labor/employee relations, so long as the agency still
believes the employee is a threat to the agency/systems/personnel/
general public. The union stated that OPM should clarify if it would be
proper for an agency to use investigative leave while it continues the
labor/employee relations process after an investigation has been
completed but before an adverse action has been proposed.
OPM response: It is correct that notice leave would not commence
until the employee has received a notice of a proposed adverse action.
As noted in the discussion of general comments with respect to the
definition of ``investigation,'' OPM considers the investigation to
include a variety of activities associated with the fact-finding stage,
such as preparation of a report and/or recommendation(s). The
investigation would also include settlement negotiations that could
lead to a recommendation. In short, the investigation includes all of
the steps leading to the agency's decision regarding whether to issue a
notice of proposed action. If an agency is planning to issue a notice
of proposed adverse action based on its investigation, the period of
investigation may be viewed as not completed until the agency issues
the notice. Thus, an agency can avoid any gap and provide for
consecutive use of the two types of leave, where appropriate.
Section 630.1504(f)--Extensions of Investigative Leave
Comment: An agency recommended deleting the requirement that any
extension of the initial 30 workdays of investigative leave must be
approved by the CHCO or designee. The agency argued that this elevates
the approval level too high within the chain of command unnecessarily.
The agency believed that extensions of investigative leave should be
approved by local commanders/directors.
OPM response: The requirement that extensions of investigative
leave be approved by the CHCO or designee is a statutory requirement
under section
[[Page 102280]]
6329b(c). OPM notes, though, that neither the Act nor final rule
specify the appropriate level to which this function can be delegated
and agency CHCOs have the discretion to make such a determination.
Comment: A union recommended that proposed Sec. 630.1504(f)(3) be
revised to include language included on page 32271 of the proposed
regulations indicating that: (1) requests for extensions of
investigative leave should be used sparingly, (2) approving officials
should act in a timely manner on such extensions, and (3) agencies
should not submit automatic requests for extension. The union also
suggested that OPM clarify that the approving official (CHCO or
designee) be required to consult directly with the investigator who is
conducting the investigation, rather than the investigator's supervisor
or some other person not closely familiar with the investigation.
OPM response: Since the statute and regulations establish a process
for approving extensions in 30-workday increments, the referenced
language does not need to be included in the regulatory text. The
process compels timely action and requires the approving official to
make a written determination that use of investigative leave is
warranted with each extension (Sec. 630.1504(f)(3)(i)). This process
also discourages ``automatic'' requests for extensions and promotes
sparing but necessary use of investigative leave. The statutory and
regulatory requirements to report on use of investigative leave also
address these issues. With respect to the union's suggestion that an
approving official consult directly with the investigator conducting
the investigation, the regulatory language ``after consulting with the
investigator responsible for conducting the investigation'' (Sec.
630.1504(f)(3)(ii)) is clear on its face, and is the exact language
used in the statute (see section 6329b(c)(1)). OPM is making no changes
based on these comments.
Section 630.1504(g)--Further Extensions of Investigative Leave
Comment: An agency recommended adding the word ``However'' at the
start of the second sentence in proposed Sec. 630.1504(g), regarding
further extensions of investigative leave after an employee has reached
the maximum number of extensions of investigative leave under paragraph
(f)(2), to make clear that the first sentence is subject to the second
sentence.
OPM response: OPM agrees and is revising Sec. 630.1504(g)
accordingly.
Comment: An agency noted that rare circumstances may require that
an employee be removed from the workplace for more than 90 days and
asked what the process would be for an extension of investigative leave
in these situations, specifically, if the request would go to OPM.
Further, the agency asked if there will be leniency for the ``crime
provision.'' The agency stated that, while indefinite suspensions are
an option, they are frequently not supported by the MSPB because the
employee is only charged and not found guilty.
OPM response: Requests under Sec. 630.1504(g) do not go to OPM.
The so-called ``crime provision'' to which the agency refers is in
chapter 75 of title 5, U.S. Code. It allows an agency to shorten the
notice period of an adverse action where there is reasonable belief
that the employee has committed a crime for which a sentence of
imprisonment may be imposed.\49\ The crime provision found at section
7513(b)(1) and Sec. 752.404(d)(1) is applicable to notice leave under
Sec. 630.1503(b)(2)(iv) but not investigative leave. While notice
leave is not subject to a time limit (other than the length of the
notice period), notice requirements applicable to the particular action
continue to apply.
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\49\ 5 U.S.C. 7513(b)(1).
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Comment: A union expressed concern that agencies might ``tweak'' an
investigation, such as by treating it as a new and different
investigation, to circumvent the Congressional reporting requirements
associated with further extensions of investigative leave under Sec.
630.1504(g). The union recommended that OPM add a regulatory provision
to bar such activity.
OPM response: OPM does not consider it is necessary to add a
regulatory provision stating that agencies may not act inappropriately
in administering investigative leave. OPM notes that there are various
accountability and transparency measures built into the law and
regulations, including written approvals by specified officials,
recordkeeping requirements, reporting requirements, and GAO reviews. It
is also possible for an employee to become subject to new
investigations regarding separate matters, and it is not practical to
establish precise rules regarding when an investigation should be
treated as an entirely new or separate investigation for purposes of
the investigative leave law and regulations. Agency officials are
authorized to exercise their best judgment in the conduct of
investigations and the approval of investigative leave.
Comment: Two agencies recommended that OPM clarify the reporting
requirements regarding employees who are required to telework in lieu
of investigative leave, as regulated in Sec. 630.1504(g)(5),
reflecting the statutory reporting requirement to Congress in section
6329b(d)(1)(E) regarding employees required to telework, triggered when
an agency is approving a ``further'' extension of investigative leave
under section 6329b(d). Both agencies noted that an employee is not on
investigative leave while performing required telework and found it
confusing that a further extension of investigative leave was being
approved for an employee in required telework status under section
6502(c). Both agencies asked whether the report to Congress including
information on telework referred to cases where the employee was
teleworking at some point during an investigation and investigative
leave.
OPM response: As explained above, an employee in required telework
status is in work status, not investigative leave status. However,
section 6502(c) states that an agency may require telework ``if an
agency places an employee in investigative leave.'' In drafting the
regulations, OPM interpreted this to mean that telework may be required
only when the employee would otherwise be placed on investigative
leave.\50\ OPM has concluded that this interpretation reflects the best
reading of the statute because a literal reading would have the effect
of authorizing agencies to compel the performance of regular work
notwithstanding an employee being in a defined leave status, which
would be unworkable. In requiring reporting to Congress on telework for
an employee who is being approved for a ``further'' extension of
investigative leave, OPM believes that Congress did not intend to count
required telework time as if it were investigative leave time. The
purpose of the approval requirements and conditions associated with the
initial and further extensions of investigative leave is to gather
information and control the use of paid time off, not work time. OPM
notes that it is possible that an employee would telework
intermittently and thus have a mix of investigative leave and telework
hours over an investigation period. The reporting requirements in
section 6329b(d)(1)(E) and Sec. 630.1504(g)(5) mean that an agency
must report to Congress on the use of required
[[Page 102281]]
telework for the employee in question during the entire period of
investigation prior to the further extension of investigative leave.
OPM is revising Sec. 630.1504(g)(5) to clarify this point.
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\50\ See Sec. 630.1503(c); see also discussion of this issue in
our responses to comments on Sec. 630.1503(c).
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Section 630.1504(i)--Possible Prohibited Personnel Action
Comment: With regard to proposed Sec. 630.1504(i), an individual
questioned whether 10 days of administrative leave for investigative
purposes would be counted towards the 70-workday threshold that allows
placement in investigative leave to be considered a ``personnel
action'' under the prohibited personnel practices provisions at section
2302(b)(8)-(9).
OPM response: As explained above, an employee must be placed on 10
days of administrative leave for investigative purposes before an
employee can be placed on investigative leave. Until and unless that
period of administrative leave is exhausted, such leave is not
investigative leave under section 6329b and does not count toward the
70-workday threshold in section 6329b(g) and Sec. 630.1504(i).
Comment: An agency requested clarification regarding which entity
would review an employee's claim that placement in investigative leave
for 70 workdays
[…truncated; see source link]Indexed from Federal Register on December 17, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.