On February 24, 2025, Elon Musk issued a threat via social media that employees who failed to return to the office would be placed on administrative leave. This threatened action warrants closer analysis.
The return to the office policy and its exceptions have been previously analyzed in this blog. Those polices had directed agencies to submit their return to the office plans by February 7, 2025, and had recommended to agencies to set a target date for implementation of return to the office policies, “subject to any exclusions granted by the agency and any collective bargaining obligations.” However, no date-certain deadline was specified either in the original presidential memorandum or the following OPM guidance documents.
Mr. Musk, in his social media post, threatened that “Starting this week, those who still fail to return to office will be placed on administrative leave.” This social media post did not take into account those with statutory exceptions to return to work that the Office of Personnel Management (OPM) in its guidance issuances had recognized (specifically, employees with reasonable accommodations for their disabilities, and employee spouses of military officers or Foreign Service officers whose remote work is authorized by statute). The social media post further did not take into account other reasons that agencies may have exercised their discretion to adjust the timing of return to the office (for example, delays in locating and securing space for employee occupancy).
The question also arises as to who could place employees on administrative leave, and whether it could be done in these circumstances. As previously discussed in this blog, administrative leave is capped by statute to 10 work days per year. OPM has asserted in a December 2024 final rule that this statutory cap only applies to certain uses of administrative leave, although that interpretation has not necessarily been tested in court as of yet. Further, the threat would appear to be inconsistent with several requirements under the OPM administrative leave regulations (5 C.F.R. § 630.1401 et seq.) which came into force January 16, 2025 under the December 2024 final rule. These regulations generally contemplate only the employing agency making the determination as to whether or not to grant administrative leave to its own employees in a given instance, stating for example that “An agency must retain the discretion to grant or not grant administrative leave in any circumstance based on agency judgments regarding mission needs.” See 5 C.F.R. § 630.1403(a)(4). No express provision of either the administrative leave statute or of OPM’s administrative leave regulations provide specific authority to an outside party to direct an employing agency to place its employees on administrative leave if the employing agency does not wish to do so. Accordingly, it is unclear if Mr. Musk, OPM or the Department of Government Efficiency (DOGE) would have direct authority to force an agency to directly place employees on administrative leave, as opposed to the decision on administrative leave placement being made by the employing agency’s management (which would presumably take into account the employing agency’s own selected timeframes and deadlines for return to the office).
If you are a federal employee with a disability which prevents you from successfully performing your job on-site or otherwise have concerns about these changes in telework and remote work policy, and wish to discuss your rights, consider contacting Gilbert Employment Law, P.C. to request an initial consultation.