The 2016 law created the new categories of investigative leave and notice leave after findings that agencies had kept employees in paid status for months while under investigation. Image: miniartkur/Shutterstock.com
By: FEDweek StaffOPM has finalized rules first proposed in 2017 to overhaul a variety of policies regarding when federal employees can be excused from duty with pay and without charge to another form of leave such as annual leave or sick leave.
Rules in the December 17 Federal Register carry out a law passed in 2016 designed to standardize and put legal authority behind some practices that had built up over the years.
That 2016 law formally authorized the practice of administrative leave (also commonly called excused absence) and specified situations in which it can be used, while also creating new specific forms of leave for other situations where administrative leave traditionally had been used—“investigative leave”; “notice leave”; and “weather and safety leave.”
The portion of the rules regarding weather and safety leave had been finalized in 2018 and have been in effect since then, but the portions regarding the other forms have been pending since being proposed. Agencies “will now have the benefit of codified parameters for these new leave categories,” OPM said.
It said the rules regarding administrative leave are “consistent with longstanding policies and practices.” They allow up to 10 workdays in a calendar year for absence that (in its words): is directly related to the agency’s mission; is officially sponsored or sanctioned by the agency; will clearly enhance the professional development or skills of the employee in the employee’s current position; or is in the interest of the agency or of the government as a whole.
Those would include, for example, attendance at a meeting of a professional association and participation in agency-sponsored blood donation, health promotion and similar events. OPM stressed, though, that “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.”
The 2016 law created the new categories of investigative leave and notice leave after GAO reports and congressional investigations revealed that agencies had kept employees in paid status for months—and in some cases for years—while investigations continued after discipline was proposed but no final action was taken.
In general, employees subject to an investigation that could lead to disciplinary action could be put on investigative leave if the agency determined that the employee’s continued presence at work would represent a threat to other employees, property or other government interests. The agency first would have to consider assigning the employee to other duties, using unpaid leave, allowing the employee to use other forms of paid leave, or requiring the employee to work offsite, if eligible.
Investigative leave could be extended in up to 30-day segments up to three times during an investigation; afterward, the agency would have to return the employee to work or take disciplinary action. Employees would receive various notice rights and placement on investigative leave for more than 70 days would be appealable as a form of retaliation under whistleblower protection law.
Paid “notice leave” would be available for up to the period of the notice of a pending disciplinary action, within the same guidelines applying to investigative leave.
Agencies have nine months to bring their policies in line with the rules. OPM said it would issue further guidance.
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