Fedweek

Final rules from OPM carrying out a 2018 executive order on disciplinary policies stress that agencies need not make more than what is required by law before taking discipline for performance-based reasons.

The rules underscore that agencies need not take any steps beyond the Civil Service Reform Act’s requirement that assist employees in improving performance deemed unacceptable before they are subject to disciplinary action. Any further make it difficult for agencies to take disciplinary actions and to have those actions upheld on appeal, an explanatory statement says.

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The rules say the obligation to help an employee improve “may be discharged through measures, such as supervisory assistance, taken prior to the beginning of the opportunity period in addition to measures taken during the opportunity period. The agency must take some measures to provide assistance during the opportunity period in order to both comply with [the law] and provide an opportunity to demonstrate acceptable performance.”

“The nature of assistance provided is in the sole and exclusive discretion of the agency. No additional performance assistance period or similar informal period shall be provided prior to or in addition to the opportunity period,” the rules say.

Once an agency has met that obligation, they say, an agency “may propose a reduction-in-grade or removal action if the employee’s performance during or following the opportunity to demonstrate acceptable performance is unacceptable in one or more of the critical elements for which the employee was afforded an opportunity to demonstrate acceptable performance.”

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Federal Manager’s Handbook, 5th Ed.