Administrative Leave, Investigative Leave, and Notice Leave

<RULE> OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Parts 630 and 752</CFR> <RIN>RIN 3206-AN59</RIN> <SUBJECT>Administrative Leave, Investigative Leave, and Notice Leave</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This final rule is effective on January 16, 2025. <E T="03">Compliance date:</E> Agencies must issue internal policies consistent with this rule and any applicable collective bargaining obligations no later than September 13, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For matters related to general administrative leave, Bryce Baker by email at <E T="03">LeavePolicy@opm.gov</E> or by telephone at (202) 606-2858; for matters related to investigative leave or notice leave, Timothy Curry by email at <E T="03">employeeaccountability@opm.gov</E> or by telephone at (202) 606-2930. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Executive Summary</HD> 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. <SU>1</SU> <FTREF/> 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. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  Enacted under section 1138 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328, 130 Stat. 2000, Dec. 23, 2016). </FTNT> <FTNT> <SU>2</SU>  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 T="03">e.g.,</E> 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 T="03">e.g.,</E> § 630.1401 instead of 5 CFR 630.1401). </FTNT> 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, <E T="03">i.e.,</E> by September 19, 2017. OPM published proposed regulations for all three sections on July 13, 2017, <SU>3</SU> <FTREF/> and issued regulations implementing § 6329c, weather and safety leave, on April 10, 2018. <SU>4</SU> <FTREF/> <FTNT> <SU>3</SU>  82 FR 32263. </FTNT> <FTNT> <SU>4</SU>  83 FR 15291. </FTNT> 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. <HD SOURCE="HD1">II. Background</HD> 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. <SU>5</SU> <FTREF/> 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. <FTNT> <SU>5</SU>   <E T="03">See, e.g.,</E> Off. of Pers. Mgmt., “Fact Sheet: Administrative Leave,” at <E T="03">https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/administrative-leave/.</E> </FTNT> 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. <SU>6</SU> <FTREF/> GAO examined the paid administrative leave policies at five selected Federal agencies. <SU>7</SU> <FTREF/> 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 T="03">e.g.,</E> weather and safety reasons, personnel investigation reasons). <FTNT> <SU>6</SU>   <E T="03">See</E> Gov't Accountability Off., “Federal Paid Administrative Leave,” Oct. 2014, at <E T="03">https://www.gao.gov/assets/gao-15-79.pdf.</E> </FTNT> <FTNT> <SU>7</SU>  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. </FTNT> 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 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. <SU>8</SU> <FTREF/> 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). <FTNT> <SU>8</SU>   <E T="03">See</E> House Report 114-520, (Aug. 25, 2016), accompanying H.R. 4359, at <E T="03">https://www.govinfo.gov/content/pkg/CRPT-114hrpt520/html/CRPT-114hrpt520.htm;</E> Senate Report 114-292, (July 6, 2016), accompanying S. 2450, at <E T="03">https://www.govinfo.gov/content/pkg/CRPT-114srpt292/html/CRPT-114srpt292.htm.</E> </FTNT> 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 eit ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 310k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━