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The Office of Personnel Management is set to publish a final rule Tuesday that would finally implement provisions of a seven-year-old law aimed at reducing agencies’ ability to put federal workers accused of misconduct on prolonged stints of administrative leave.
In 2016, Congress enacted the Administrative Leave Act as part of the 2017 National Defense Authorization Act. The law tries to reduce agencies’ reliance on placing federal workers who are under investigation into employment limbo—paid but unable to work—for long stretches of time. It also updated the government’s policies on weather and safety leave.
Though OPM proposed regulations to implement all of the law’s provisions in 2017, only the provisions governing weather and safety leave actually made it across the finish line. But earlier this year, the environmental advocacy group Public Employees for Environmental Responsibility sued the HR agency seeking to force it to act.
In a final rule set for publication Tuesday in the Federal Register, OPM formally implemented the 2016 law’s restrictions on administrative leave. While the new rule will be effective Jan. 17, 2025, agencies have until October to comply with the new restrictions on administrative leave.
“In ‘the sense of Congress’ provisions 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,” OPM wrote. “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.”
Under the new rule, agencies are limited to placing an employee on administrative leave in connection with a personnel investigation for 10 workdays per calendar year. If more than 10 days is needed to complete an investigation, agencies may put the employee on investigative leave in 30-day increments. If an employee is on administrative or investigative leave for more than 90 days, the agency must notify Congress and provide information justifying the decision.
Additionally, agencies may utilize notice leave to remove a federal employee from the workplace in conjunction with a proposed adverse action. But officials should gauge whether the leave can be avoided through requiring the employee to work remotely while the investigation runs its course.
“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,” OPM wrote. “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.”
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