Co-written with Chloe Barrett

The Office of Personnel Management (OPM) published a final rule today in the Federal Register. The final rule implements the Administrative Leave Act of 2016. Before the Administrative Leave Act, agencies could put employees on paid administrative leave for unlimited time periods, sometimes extending for years, leaving the employee in limbo while incurring costs for the taxpayer. The Act, however, caps administrative leave at 10 workdays per calendar year and requires agencies to log administrative leave.

The Act also created several new categories of leave to cover certain previously common administrative leave uses.  Relevant to OPM’s new final rule, employees under investigation can be placed on “investigation leave” for 30-90 work days (or in the alternative, placed on enforced telework); further extensions only occur with notice to Congress.  Further, the Act created “notice leave” for employees receiving notices of proposed adverse actions, to last the duration of the notice/response period for the proposed adverse action.  Additionally, placement on investigation leave over 70 workdays can give rise to a whistleblower reprisal complaint.

OPM had originally issued its proposed rule for the administrative leave, investigative leave and notice leave provisions of the Act in July 2017.  It has ultimately taken OPM over 7 years to issue this final rule on administrative leave, investigative leave and notice leave.  The final rule is effective January 16, 2025, but agencies will have until September 13, 2025 to update their internal policies to implement the new regulations, which OPM indicated would not be retroactive in effect.

In the final rule, OPM refused to automatically require the exclusion of employees from the workplace on investigative leave or notice leave, instead delineating specific standards for placement on investigative leave or notice leave (as opposed to other measures such as telework or detail).  OPM confirmed that the notice leave rules do not by themselves determine  the maximum time for an employee’s notice period prior to a decision on discipline, and noted that agencies could retain an employee briefly on investigative leave for the time period between the completion of the formal investigation and the issuance of proposed discipline.

OPM clarified that the Administrative Leave Act leave categories do  not impact leave available under other legal authorities and statutes (for example, official time provisions for certain union matters or under Permanent Change of Station regulations), nor does  the Act limit use of unpaid leave.  For the enforced telework provision, OPM specified that the telework time would not be treated as investigative or notice leave time.  OPM also indicated that it anticipated that certain categories of time that certain agencies historically logged as administrative leave (such as time for attending certain work-related training and conferences) should instead be simply treated as duty time.  Finally, OPM noted that agencies are still permitted to offer administrative days off provided they opt to do so in a given year, and that the President’s authority to direct days off by executive order is unaffected by the Act.

 

If you are federal employee and wish to discuss how the Administrative Leave Act and OPM’s new regulations impacts your rights, consider contacting Gilbert Employment Law, to request an initial consultation.