Federal Manager's Daily Report

Among the provisions of the newly finalized rules from OPM carrying out a 2018 executive order on disciplinary policies is an emphasis on agency use of the probationary period for new employees—one year in most cases although two years at DoD.

Agencies are to “utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his or her services during this period if the employee fails to demonstrate fully his or her qualifications for continued employment,” the rules say.

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As part of that process, agencies must arrange to notify supervisors three months before the end of a subordinate’s probationary period and then again one month before, and “advise a supervisor to make an affirmative decision regarding an employee’s fitness for continued employment or otherwise take appropriate action.”

MSPB has reported that in some cases supervisors do not know that such a period is ending and miss opportunities to take actions before employees complete the period and gain full appeal rights.

Said OPM in explanatory text, “The rule does not change the procedures for terminating a probationer’s appointment; it merely requires that agencies notify supervisors to make an assessment of the probationer’s overall fitness and qualifications for continued employment at prescribed timeframes before the conclusion of the probationary period.”

“Current regulation, as reinforced by E.O. 13839 and previous OPM guidance, already provides that an agency shall utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his services during this period if he fails to demonstrate fully his qualifications for continued employment,” it adds.

In response to a union’s comment that the government loses its investment in new employees—especially those in positions requiring extensive training—by firing them, OPM said that “it would be more wasteful to retain the individual past the probationary period, allow him or her to acquire career status (and adverse action rights), and then be forced to pursue a formal performance-based action or adverse action to remove an employee who had proven to be unable to perform the duties of the position in an acceptable manner even before those rights accrued.”

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Federal Manager’s Handbook, 5th Ed.