[Senate Report 114-292]
[From the U.S. Government Publishing Office]
Calendar No. 545
114th Congress } { Report
SENATE
2d Session } { 114-292
_______________________________________________________________________
ADMINISTRATIVE LEAVE ACT OF 2016
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2450
TO AMEND TITLE 5, UNITED STATES CODE, TO ADDRESS
ADMINISTRATIVE LEAVE FOR FEDERAL EMPLOYEES, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
July 6, 2016.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-010 WASHINGTON : 2016
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
John A. Kane, Minority Senior Governmental Affairs Advisor
Laura W. Kilbride, Chief Clerk
Calendar No. 545
114th Congress } { Report
SENATE
2d Session } { 114-292
======================================================================
ADMINISTRATIVE LEAVE ACT OF 2016
_______
July 6, 2016.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2450]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2450), to amend
title 5, United States Code, to address administrative leave
for Federal employees, and for other purposes, having
considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary.............................................1
II. Background and Need for the Legislation.........................2
III. Legislative History.............................................8
IV. Section-by-Section Analysis.....................................9
V. Evaluation of Regulatory Impact................................12
VI. Congressional Budget Office Cost Estimate......................12
VII. Changes in Existing Law Made by the Bill, as Reported..........13
I. Purpose and Summary
S. 2450, the Administrative Leave Act of 2016, defines
``administrative leave'' for the first time in Federal statute,
limits the broad variation of its use by Federal agencies, and
encourages Federal agencies to use administrative leave only as
a last resort by utilizing tools like temporary reassignment or
telework arrangements where possible. Given the lack of
uniformity of the use of administrative leave across the
Federal Government and the cost to the taxpayers of its abuse
by some agencies, this bill also requires agencies to keep
better accounting of when they use administrative leave and
other forms of non-duty paid leave.
II. Background and the Need for Legislation
Current law
Administrative leave is the term used to describe a Federal
employee's excused absence from work that is typically without
loss of pay, and without charge to other types of leave the
employee is statutorily granted.\1\ There is no specific
statutory authority for an agency to grant administrative
leave; however, the Office of Personnel Management (OPM) has
issued multiple forms of guidance on its use.\2\ In addition,
in some cases, Congress has legislatively authorized certain
types of non-duty paid leave.\3\
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\1\Gov't Accountability Office, GAO-15-79, Federal Paid
Administrative Leave: Additional Guidance Needed To Improve OPM Data 3
(Oct. 2014), available at http://www.gao.gov/assets/670/666566.pdf
[hereinafter Federal Paid Administrative Leave].
\2\Id. at 3-8. OPM has also claimed that authority to grant an
excused absence derives from the inherent authority for heads of
agencies to prescribe regulations for the government of their
organizations under 5 U.S.C. Sec. Sec. 301-302. See Pay & Leave, Fact
Sheet: Administrative Leave, OPM.gov, https://www.opm.gov/policy-data-
oversight/pay-leave/leave-administration/fact-sheets/administrative-
leave/ (last visited June 29, 2016).
\3\Federal Paid Administrative Leave at 13-14 (citing 5 U.S.C.
Sec. Sec. 6326, 6328, 6321 (military, law enforcement and firefighter
funerals); 5 U.S.C. Sec. 6327 (bone-marrow donors and organ donors); 5
U.S.C. Sec. 6325 (employees injured by hostile action while serving
abroad)).
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Federal regulations issued by OPM provide that paid leave
may be permissible in situations where another type of leave,
such as sick or annual leave, would be inappropriate like an
absence for just an hour, as opposed to half a day;\4\ where
employees are granted excused absence from the agency;\5\ and
where an employee's presence in the workplace is considered
threatening to individuals or government property, or could
otherwise jeopardize a legitimate government interest and an
action--a removal or suspension--has been proposed against the
employee.\6\
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\4\5 C.F.R. Sec. 630.206.
\5\5 C.F.R. Sec. 610.301 et seq.
\6\5 U.S.C. Sec. Sec. 7513(a) and 7514; 5 C.F.R.
Sec. Sec. 752.404(b)(3) and 752.604(b)(2).
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Additionally, OPM has issued guidance to agencies through
memoranda and media that discuss appropriate circumstances for
the use of administrative leave in broad terms. As summarized
by the Government Accountability Office (GAO),
OPM provides 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 head of the agency, (3) it will clearly enhance
professional development or skills of the employee in
his or her current position, or (4) it is brief and
determined to be in the interest of the agency.\7\
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\7\Federal Paid Administrative Leave at 5; See Pay & Leave, Fact
Sheet: Administrative Leave, OPM.gov, https://www.opm.gov/policy-data-
oversight/pay-leave/leave-administration/fact-sheets/administrative-
leave/ (last visited June 29, 2016).
Some situations have been explicitly discussed and green-
lighted by OPM in guidance. For example, OPM says agencies may
count voting, donating blood, taking work-required
examinations, or attending conventions as administrative
leave.\8\ More recently, OPM issued guidance to agencies on the
use of administrative leave that addressed administrative leave
related to unacceptable performance and misconduct. Like its
regulation on administrative leave after an adverse action has
been proposed, the guidance provides that an agency may place
an employee in paid, non-duty status during an investigation
``when the agency believes the employee poses a threat to his
own safety or the safety of others, the agency mission, or
Government systems or property while the investigation is
pending,'' and that ``[w]here absences are for longer than
brief periods, administrative leave is generally
inappropriate.''\9\
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\8\See Pay & Leave, Fact Sheet: Administrative Leave, OPM.gov,
https://www.opm.gov/policy-data-oversight/pay-leave/leave-
administration/fact-sheets/administrative-leave/ (last visited June 29,
2016).
\9\Id.
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The Merit Systems Protection Board and the Federal Labor
Relations Authority have similarly found that agency use of
administrative leave should be a ``short-term,''\10\ brief, or
occasional\11\ solution. OPM has also provided guidance that,
in the case of workplace violence, administrative leave may be
necessary but should be ``an immediate, temporary solution''
and the agency should seek a ``longer-term'' action.\12\ The
GAO has concluded that ``administrative leave for lengthy
periods of time is inappropriate unless it is in connection
with furthering a function of the agency.''\13\
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\10\Brown v. United States Postal Service, 64 M.S.P.R. 425, 431
(1994); Miller v. Dep't of Defense, 45 M.S.P.R. 263, 266 (1990); To the
Chairman, U.S. Civil Service Commission, 38 Comp. Gen. 203 (1958).
\11\United States Dep't of the Air Force & Sport Air Traffic
Controllers Organization, 65 F.L.R.A 387 (2010).
\12\OPM, Dealing with Workplace Violence: A Guide for Agency
Planners 106 (1998), available at https://www.opm.gov/policy-data-
oversight/worklife/reference-materials/workplaceviolence.pdf.
\13\Federal Paid Administrative Leave at 7.
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Missing from current law, however, is detailed statutory
direction on appropriate purposes for the use of administrative
leave. Nor is there a statutory limit on the amount of time a
Federal employee may be placed on administrative leave. In the
absence of this congressional direction, these decisions have
always been left to the discretion of the agency, are subject
to abuse and wide variations in agency practice.
Committee oversight
Agency use of administrative leave is rarely public.
However, in 2012, the Inspector General for the National
Archives, Paul Brachfeld, was placed on administrative leave by
the Archivist in response to allegations of wrongdoing against
him.\14\ Mr. Brachfeld remained on administrative leave for two
years, stirring a conversation about the proper use of such
leave.\15\ His prolonged paid leave cost taxpayers $300,000 in
salary and several hundred thousand dollars in legal fees.\16\
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\14\Report of Administrative Investigation for the Council of the
Inspectors General on Integrity and Efficiency (Mar. 28, 2014),
available at http://www.govexec.com/media/gbc/docs/pdfs_edit/
080514cc1.pdf.
\15\Lisa Rein, Embattled National Archives IG to retire after probe
finds misconduct, Wash. Post (Aug. 4, 2014), https://
www.washingtonpost.com/news/federal-eye/wp/2014/08/04/embattled-
national-archives-ig-to-retire-after-probe-finds-misconduct/.
\16\Report of Administrative Investigation for the Council of the
Inspectors General on Integrity and Efficiency (Mar. 28, 2014),
available at http://www.govexec.com/media/gbc/docs/pdfs_edit/
080514cc1.pdf.; Letter from Charles E. Grassley, Darrell Issa, and Tom
A. Coburn to The Honorable David S. Ferriero, Feb. 21, 2014.
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This Committee, along with the Committee on Oversight and
Government Reform in the House of Representatives and then-
Ranking Member of the Senate Committee on the Judiciary Charles
Grassley wrote a letter to the Archivist in February 2014
questioning the Archivist's decision and raising concerns that
the extended administrative leave threatened the inspector
general's independence from the agency.\17\ This work resulted
in legislation in 2015, led by Senators Charles Grassley,
Claire McCaskill, and Ron Johnson, to address the use of
administrative leave as it relates to inspectors general.\18\
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\17\Letter from Charles E. Grassley, Darrell Issa, and Tom A.
Coburn to The Honorable David S. Ferriero, Feb. 21, 2014 (on file with
Comm. staff).
\18\S. 579, the Inspector General Empowerment Act of 2015 (114th
Cong.).
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In 2013, then-Ranking Member of the Committee Tom Coburn,
Senator Grassley, and then-Chairman of the Committee on
Oversight and Government Reform, Darrell Issa, asked the GAO to
examine how agencies use paid administrative leave.\19\ As a
result of that request, the GAO issued a public report on the
use of administrative leave in October 2014.\20\ The GAO issued
another report, this time focused just on the use of
administrative leave at the Department of Homeland Security
(DHS), in March 2016.\21\ In addition to the GAO's reviews of
administrative leave, Senator Grassley solicited responses from
eighteen agencies with detailed information on their use of
administrative leave, and issued a memorandum of his staff's
findings from those responses in November 2015.\22\ The
remainder of this Committee Report summarizes the findings of
these reports and the responses from agencies and explains how
S. 2450 addresses the issues raised therein.
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\19\Federal Paid Administrative Leave.
\20\Id.
\21\Gov't Accountability Office, GAO-16-342, Administrative Leave:
Evaluation of DHS'S New Policy Can Help Identify Progress Toward
Reducing Leave Use (Mar. 2016), available at http://www.gao.gov/assets/
680/676011.pdf [hereinafter Administrative Leave: Evaluation of DHS].
\22\Memorandum from Senate Judiciary Committee, Oversight and
Investigations Staff for Senator Charles E. Grassley to the Committee
on the Judiciary, United States Senate, et. al 4-5 (Nov. 30, 2015),
available at http://www.grassley.senate.gov/sites/default/files/news/
upload/Use%20of%20Admin%20leave.pdf [hereinafter Senator Grassley Staff
Administrative Leave Memorandum]. Inquiries to seventeen agencies were
sent by Senators Grassley and Issa; two inquiries were sent by Senator
Grassley. One agency, the Department of Defense, failed to respond and
three additional agencies--the Departments of Agriculture, Commerce,
and Energy--provided incomplete responses to our requests.
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Lack of Documentation and Consistency The 2013 GAO report
found that ``agencies'' policies on paid administrative leave
differ,'' including the way agencies record paid administrative
leave.\23\ The inconsistent policies and varying data across
agencies resulted in GAO concluding that the Federal
Government's use of administrative leave is inadequately
documented, data on its use is ``inaccurate and inconsistent,''
and that ``[a]s a result, OPM does not have an accurate measure
on the use of paid administrative leave across federal agencies
that can be used to inform decision makers on the use of paid
administrative leave.''\24\
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\23\Federal Paid Administrative Leave at 15.
\24\Id. at 31.
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Additionally, Senator Grassley's staff report found that
the lack of clear statutory limits and guidelines on the use of
administrative leave has led to inconsistent practices at
different agencies.
For example, the VA permits employees to use
administrative leave for labor organization and
educational activities, while Interior uses it to
enable teachers and educational support staff to be
paid a prorated, consistent amount during school
breaks. Some agencies, such as HUD and NASA, do not
even use the term ``administrative leave.'' Instead,
HUD issues ``excused absence'' and NASA grants
employees ``excused leave.'' HUD's policy notes that
``excused absence'' is absence from duty that is
administratively authorized, without loss of pay and
without charge to leave. At NASA, ``Center Directors or
their designees may determine administratively other
situations in which employees may be excused from duty
without charge to leave.'' These ``other situations''
include ``plac[ing] employees on excused leave prior to
affecting an adverse action to avoid workplace
disruption during the interim period.'' Although NASA
and HUD do not use the term administrative leave, the
function is the same.
In addition, individual agencies' policies on the
appropriate length of time for administrative leave
vary widely. Indeed, the vast majority of the agencies
within our sample placed no specific time limit on the
use of paid administrative leave pending an
investigation or personnel action. Rather, those
agencies that addressed such a circumstance noted that
employees may be placed on administrative leave for
whatever time is necessary to effect a personnel action
or pending completion of an investigation.\25\
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\25\Senator Grassley Staff Administrative Leave Memorandum at 6-7
(internal citations omitted).
These inconsistent policies are troubling not just because
it is difficult to conduct proper oversight over the use of
paid administrative leave without accurate data, but because
some agencies currently record leave that is otherwise
authorized in statute by Congress--certain union activities,
certain military activities, serving as an organ donor, and
jury duty--as administrative leave.\26\ When agencies
improperly record these types of leave as administrative leave,
it is difficult for agency watchdogs--including Congress--to
determine how much administrative leave is actually being used
and to hold agencies accountable for its use.
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\26\Federal Paid Administrative Leave at 13-16.
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Senator Grassley's staff report also found that agencies
placed employees on paid administrative leave without providing
adequate justification.\27\ The report stated that many
agencies that used administrative leave did not articulate how
the employees posed threats to themselves, other employees, or
government resources.\28\ This was unsurprising given the
report's finding that few agencies had approval requirements
for administrative leave greater than a certain time
period.\29\ The Department of Justice, which had implemented
guidance in 2002 requiring managers to explain the basis for
placing an employee on administrative leave and to obtain
authorization from the Department's Chief Human Capital Officer
for an extension beyond ten days, was relatively more
successful in limiting extended administrative leave--i.e.,
leave for more than one year.\30\
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\27\Senator Grassley Staff Administrative Leave Memorandum at 10-
16.
\28\Id. at 11.
\29\Id. at 7.
\30\Id. at 13.
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In contrast, other agencies that had placed employees on
administrative leave for extended periods of time could not
justify the length of such leave nor why investigations or
other actions took so long.\31\ In some cases, agencies
reported that while misconduct investigations and disciplinary
actions remain pending, their hands are tied; yet, it was not
clear why such lengthy periods of time were required to
investigate alleged misconduct or the extent to which
alternatives--such as reassignment or indefinite suspension--
had been considered in conjunction with investigators.\32\ The
lack of documentation inhibits proper oversight.
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\31\Id. at 16-18.
\32\Id. at 16.
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Cost to the Taxpayers and the Employee of Extended Leave As
noted by the Senior Executives Association, ``[t]he manner in
which administrative leave has sometimes been abused by federal
agencies has been unfair to employees, agencies, and American
taxpayers.''\33\
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\33\Letter from Jason Briefel, Interim President of the Senior
Executives Association, to the Honorable Ron Johnson, Chairman, and the
Honorable Tom Carper, Ranking Member of the Committee on Homeland
Security and Governmental Affairs (Feb. 9, 2016) (on file with Comm.
staff).
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Although GAO's data were incomplete, the 2013 report
concluded that between fiscal years (FY) 2011 and 2013, at
least 263 employees were on administrative leave for one to
three years, costing the American taxpayer--paying both
salaries and benefits for the employees who were forbidden to
work--approximately $31 million.\34\
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\34\Federal Paid Administrative Leave at 26.
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Employees placed on leave due to ongoing investigations for
alleged misconduct have--in some cases--stayed on the Federal
Government payroll for years. In FY2014, DHS and the Department
of Veterans Affairs alone spent more than $40 million in
estimated salaries for employees on administrative leave for
one month or more.\35\
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\35\Senator Grassley Staff Administrative Leave Memorandum at 9,
Fig. 1.
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GAO's recent review of DHS's uses of administrative leave
concluded that from FY 2011 to FY 2015, 116 DHS employees were
on administrative leave for at least one year, costing American
taxpayers $19.8 million.\36\ The vast majority of these
individuals were eventually separated from the agency.\37\ One
example highlighted in the report is that of a law enforcement
agent who had been on administrative leave for over three years
while under investigation.\38\ This individual alone cost
taxpayers $455,000 in salary and benefits.\39\
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\36\Administrative Leave: Evaluation of DHS at 8.
\37\Id. at 11.
\38\Id. at 8.
\39\Id.
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Unlike an agency decision to remove or suspend an employee,
however, an agency decision to place an employee on
administrative leave is not an appealable action.\40\
Accordingly, employees such as the law enforcement agent on
leave for more than three years at DHS, have no way to contest
a decision to place them on indefinite administrative leave.
This is especially problematic as there is reason to believe
that administrative leave could be abused by an agency to
retaliate against a whistleblower. While the employee receives
pay, he or she faces significant uncertainty about the future
of their career. Employees may wait years while their career
languishes because their agencies have not proposed or
determined whether to take an adverse personnel action.
According to the Professional Managers Association,
administrative leave ``has been used by agencies to drag out
investigations, leaving workers in limbo for unreasonable
periods of time.''\41\
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\40\See Dixon v. United States Postal Service, 69 M.S.P.R. 171
(1995).
\41\Letter from Thomas R. Burger, Executive Director, to the
Honorable Ron Johnson, Chairman, and the Honorable Tom Carper, Ranking
Member of the Committee on Homeland Security and Governmental Affairs
(Feb. 9, 2016) (on file with Comm. staff).
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S. 2450 Provisions--Administrative leave reform
S. 2450 establishes in statute for the first time a
definition of administrative leave that is separate from other
forms of paid leave or excused absence already authorized and
limits the use of administrative leave to five consecutive days
at a time. This will reduce the wide variation as to what is
categorized as administrative leave throughout the Federal
Government and reduce its potential for abuse.
It also provides a separate authorization for leave that
becomes necessary as a result of weather or safety issues. As
has been agency practice, the bill allows agencies to use
excused absences for an employee or group of employees who
cannot safely travel to or from work. This covers circumstances
such as inclement weather, communicable disease exposure, and
chemical spills, among others. Consistent with OPM guidance and
the Telework Enhancement Act of 2010, the use of telework is
encouraged to support continuity of operations and continued
productivity even when Federal offices are closed.
Separate from the maximum five-day administrative leave,
the bill establishes two new forms of leave for excused
absences due to personnel matters: investigative and notice
leave. Before using investigative leave or notice leave,
however, agencies must first determine whether the continued
presence of the employee 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. These criteria codify existing OPM regulations, as
discussed above. This ``threat determination'' is a personnel
action under section 2302, which means that employees can
challenge it if made for retaliatory, discriminatory, or other
enumerated improper purposes. Otherwise, consistent with
current case law, the placement on investigative leave or
notice leave is not an adverse action.
If the agency determines that the employee poses such a
threat, the agency must consider other options before using
investigative or notice leave, including: assigning the
employee to duties in which the employee is no longer a threat,
requiring the employee to telework, allowing the employee to
voluntarily take another type of leave, and curtailing the
notice period. No authority is established to permit agencies
to require employees to take accrued leave, which would amount
to a constructive suspension.\42\
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\42\Information Sheet No. 11, Enforced Leave, U.S. Merit Systems
Protection Board, available at http://www.mspb.gov/MSPBSEARCH/
viewdocs.aspx?docnumber=367904&version=368537& application=HTML.
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If an agency determines it must use investigative leave
after conducting the aforementioned determinations, it may
place an employee on investigative leave for up to ten days
(i.e., two weeks of time) while the agency or other
investigative entity investigates the matter. If an agency
needs to use more than ten days, it must go through a more
rigorous approval process to ensure fairness, transparency, and
accountability. To that end, the agency's Chief Human Capital
Officer (or his or her designee), with input from the
investigator conducting the relevant investigation, may grant
extensions of up to 30 days each beyond the first ten days for
a total of no more than 120 days of investigative leave, or
approximately six months. In most cases, an agency should be
able to conduct an efficient investigation within this time and
it is important that an individual be returned to work or have
their case resolved as soon as possible.
Further extensions of investigative leave are permitted in
60-day increments and for an unlimited total amount of time,
but only for the first six years after enactment of the bill,
and only with review by OPM and notice to Congress. The
sponsors of the bill chose to use a six-year sunset on
extensions beyond the first 120 days of investigative leave to:
(1) give agencies sufficient time to develop more efficient
policies for conducting investigations; (2) to give GAO time to
conduct a study on the extent to which further extensions
beyond 120 days are necessary and make recommendations to
Congress; and (3) to give Congress sufficient time to legislate
any adjustments to these policies, if necessary.
At the conclusion of authorized use of investigative leave
an agency must either return the employee to working status in
some capacity or, if warranted, take an adverse action to keep
an employee out of the workplace. While agencies may continue
to investigate, agencies are not permitted to keep employees in
an extended indeterminate status--they must make a decision to
return the employee to work status or take an adverse action,
thus providing a forum with due process protections where an
employee can challenge the agency.
Agencies may use notice leave to effectuate a removal or
suspension action if such an action has been proposed.
Finally, the bill improves the way that agencies record and
keep track of administrative leave to ensure improved
accountability and ability for the agency, Congress, GAO, and
others to conduct oversight.\43\ First, it requires agencies to
record other forms of legislatively authorized excused absence
separately from administrative leave. Agencies will have two
years from enactment to prepare for any necessary changes to
recording practices. The legislation directs OPM to conduct an
initial study to identify existing agency practices to grant
administrative leave for more than five days where such leave
is not already authorized in law. This will ensure that
Congress is aware of circumstances in which administrative
leave has been granted in excess of five days to legislatively
authorize such leave, if warranted.
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\43\Provisions of this bill are to be read consistent with the
Privacy Act. 5 U.S.C. Sec. 552a.
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III. Legislative History
Senator Jon Tester (D-MT) introduced S. 2450 on February
10, 2016 with Senators Chuck Grassley (R-IA), Ron Johnson (R-
WI), and Tom Carper (D-DE). The bill was referred to the
Committee on Homeland Security and Governmental Affairs.
Senators James Lankford (R-OK) and Claire McCaskill (D-MO)
joined as cosponsors on February 8, 2016, and February 9, 2016,
respectively.
The Committee considered S. 2450 at a business meeting on
February 10, 2016. During the business meeting, a substitute
amendment was offered by Senators Tester, Johnson, and Carper,
that made improvements to the bill. The bill, as amended by the
substitute amendment, was ordered reported favorably by voice
vote en bloc. Senators Johnson, McCain, Portman, Paul,
Lankford, Ayotte, Ernst, Sasse, Carper, McCaskill, Tester,
Baldwin, Heitkamp, Booker, and Peters were present for the
vote.
III. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section supplies the short title of the bill, the
Administrative Leave Act of 2016.
Section 2. Sense of Congress
This section states Congress's views that agencies have
excessively used administrative leave--oftentimes recording
paid time off as administrative leave when in fact there is
another more appropriate leave that should be used--and
declares its intent that administrative leave be used
sparingly, as a last resort, and while expeditiously working to
resolve any related investigation so that the employee can
either return to duty or the agency can initiate a personnel
action.
Section 3. Administrative leave
This section amends subchapter II of chapter 63 of Title 5,
United States Code, by adding a new section 6330 and defining
the terms ``administrative leave'', ``agency'', and
``employee.'' This section limits an agency from placing an
employee on administrative leave for a period of more than five
consecutive days. This definition and authority to use
administrative leave is intended to codify the excused absence
that agencies had previously been granting as an exercise of
agency discretion and that agencies justified as pursuant to
historical practice or authority granted by 5 U.S.C.
Sec. Sec. 301-302. This period of five days is not a cap on the
amount of total excused absence an agency may grant to
employees, as longer periods may be used in the case of
investigative and notice leave, detailed below, or other forms
of statutorily authorized paid leave. However, agencies will
not be permitted to provide for excused absence as an exercise
of agency discretion under 5 U.S.C. Sec. Sec. 301-302 or
otherwise outside of that which is authorized by this bill or
other authority provided by statute. Moreover, agencies should
not circumvent the five-day limit by putting an employee on
leave for five days, taking the employee off of leave, and then
placing the employee on leave again.
This section also requires agencies to record
administrative leave separately from leave authorized under any
other provision of law. It further requires the Office of
Personnel Management (OPM) to prescribe regulations to carry
out this section, and prescribe regulations that provide
guidance to agencies regarding acceptable uses of
administrative leave and the proper recording of administrative
leave and other leave authorized by law. To the extent that
Congress authorizes additional forms of excused absence,
agencies should record those separately. Agencies have one year
after the date upon which OPM has prescribed regulations to
revise and implement their internal policies to conform to the
requirements of this section and thus implement the provisions
of this bill.
Finally, this section provides for OPM, in consultation
with Federal agencies, unions, and other relevant stakeholders,
to provide a study to the Senate Committee on Homeland Security
and Governmental Affairs and the House Oversight and Government
Reform Committee identifying agency practices of placing an
employee on administrative leave for more than five consecutive
days when the placement was not specifically authorized under
law.
Section 4. Investigative leave and notice leave
This section defines the terms ``agency'', ``Chief Human
Capital Officer'', ``committees of jurisdiction'',
``Director'', ``employee,'' ``investigative leave'', ``notice
leave'', and ``notice period.''
This section creates new forms of paid leave under Section
6330a, subchapter II of chapter 63, Title 5, by providing leave
for employees under investigation or in a notice period. The
section states that an agency may not place an employee on
investigative leave or notice leave unless the continued
presence of the employee in the workplace during an
investigation or notice period (a) poses a threat to the
employee or other employees; (b) results in the destruction of
evidence; (c) results in the loss of or damage to government
property; or (d) otherwise jeopardizes legitimate government
interests.\44\
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\44\With respect to investigations in connection with the
suspension or revocation of a security clearance, agencies may use
administrative leave where the continued presence of the employee in
the workplaces ``otherwise jeopardizes legitimate government
interests.''
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After making a determination with respect to an employee,
and before placing an employee on investigative or notice
leave, this section requires agencies to consider taking one or
more of the following actions: (a) assigning the employee to
duties in which an employee no longer poses a threat; (b)
allowing the employee to take leave for which they are
eligible; (c) requiring the employee to telework under section
6502(c); (d) should the employee become absent without approved
leave, carrying the employee in absence without leave status;
(e) for an employee who is subject to a notice period,
curtailing the notice period if there is reasonable cause to
believe the employee has committed a crime for which a sentence
of imprisonment may be imposed.
This section limits the initial period of investigative
leave to ten days. Extensions, each lasting not more than 30
days, may be granted should the Chief Human Capital Officer of
an agency, or the designee of the Chief Human Capital Officer,
approve the extension after consulting with the investigator
responsible for the investigation. Such extensions, taken
together, may not exceed 110 days (for a total of 120 days when
the initial ten days is included). For employees of an Office
of the Inspector General, the Inspector General or the designee
of the Inspector General, approves the extension of
investigative leave for an employee. Should the Inspector
General make the request, the head of an agency is eligible to
designate an official to approve an extension of such leave.
This section requires the Chief Human Capital Officers Council
and the Council of the Inspectors General on Integrity and
Efficiency to issue guidance on appropriate designations under
this section. Designations must be at a sufficiently high level
within the agency to ensure an impartial and independent
determination is made with respect to the extension. High-level
agency attention and oversight have proven effective in
limiting the amount of paid leave and any designation should
not be delegated to a level that is insufficient to ensure such
scrutiny.
Further extensions of 60 days of investigative leave may be
granted by the head of an agency (or the inspector general)
before the extension period expires when the agency submits
reasons of the further extension to the Congressional
committees of jurisdiction. Such extensions are subject to OPM
review. After six years, agencies may no longer grant 60-day
extensions, and will instead be capped at the 30-day extensions
totaling no more than 110 days (extensions beyond a total of
120 days granted prior to the statutory expiration of the
authority are valid, but no more may be granted). This section
requires the Government Accountability Office to evaluate the
implementation of investigative leave and the applicable
extensions prior to the six-year sunset. Among other topics,
the GAO study must address agencies' placement of employees on
administrative leave because of a determination that the
continued presence of the employee may jeopardize legitimate
Government interests to ensure agencies are not abusing this
authority.
This section also states that the placement of an employee
on notice leave shall be for a period of not longer than the
duration of the notice period.\45\
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\45\Administrative Law Judges (ALJs) have statutory protections
greater than those provided to other Federal employees--including
prohibition on an adverse action without a finding of good cause by the
Merit Systems Protection Board (MSPB), 5 U.S.C. Sec. 7521, and
prohibition on the performance of duties inconsistent with the duties
and responsibilities as ALJs, 5 U.S.C. Sec. 3105. The provisions of
this bill apply to ALJs and the Committee intends for agencies to use
notice leave pending the good cause determination by the MSPB with
respect to an ALJ whose continued presence 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. This
will enable S. 2450 to be read consistent with existing law governing
ALJs; the legislation controls to the extent it is inconsistent with
existing regulations governing the placement of ALJs on leave. See,
e.g., 5 CFR. Sec. 930.211(b) (allowing ALJs to be placed on
administrative leave status ``when there are circumstances in which the
retention of an [ALJ] in his or her position is detrimental to the
interests of the Federal Government'').
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Agencies are required to provide the employee on
investigative or notice leave a written explanation of the
leave. Agencies are also required to, not later than the day
after the last day of a period of investigative leave: (a)
return the employee to regular duty status; (b) take one or
more of the actions previously stated; (c) propose or initiate
an adverse action against the employee; or (d) extend the
period of investigative leave accorded by the bill.
To improve communication between investigators and agency
personnel who are responsible for making decisions about the
necessity of placing employees on investigative leave, this
section requires the Council of the Inspectors General on
Integrity and Efficiency, in consultation with the Attorney
General and the Special Counsel, to issue guidance on best
practices for consultation between an investigator and the
agency. The guidance is intended to encourage communication
between investigative entities and agencies, to the extent
possible, so that agencies do not assume the necessity of paid
leave just because an investigation is ongoing. OPM is also
required to provide guidance to agencies on the use of
investigative leave and notice leave; how such leave and other
statutorily authorized forms of leave are to be properly
recorded; and baseline factors that agencies must consider when
making a ``threat determination.'' Recognizing that each
situation presents a unique set of facts and circumstances, OPM
guidance will help ensure that agencies are assessing similar
factors when determining whether an employee should be on non-
duty paid status pending an investigation or notice period. OPM
must also prescribe procedures and criteria for how agencies
should approve of extensions of investigative and notice leave
under this section, including how agencies should submit
extension requests to the Director for review.
This section also allows an agency to require an employee
to telework under the provisions of section 6502 of title 5, if
the continued presence of an employee in the workplace during
an investigation or when the employee is in a notice period,
poses one or more of the threats described in the previous
section.
Section 5. Leave for weather and safety issues
This section amends subchapter II of chapter 63, Title 5 to
include a new section, 6330b, for ``weather and safety leave''.
Agencies may approve paid leave without loss or reduction in
pay for an employee or group of employees if they are prevented
from safely traveling to or performing work due to an act of
God, terrorist attack, or another condition that prevents them
from safely traveling to or performing work at an approved
location. This section also requires agencies to record such
leave separately from leave already authorized under law.
Section 6. Additional oversight
This section provides for the Director of OPM to complete a
review of agency policies to determine whether agencies have
complied with the requirements of this bill no later than three
years after enactment. These findings are then to be submitted,
in report form, to Congress 90 days after completion.
IV. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
V. Congressional Budget Office Cost Estimate
March 23, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2450, the
Administrative Leave Act of 2016.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dan Ready,
who can be reached at 226-2880.
Sincerely,
Keith Hall.
Enclosure.
S. 2450--Administrative Leave Act of 2016
S. 2450 would create three new types of leave for agencies
to use in lieu of administrative leave in specific
circumstances. Two of the new types of leave--investigative
leave and notice leave--would be available for removing an
employee from the workplace while an agency is investigating
misconduct or taking adverse action against that employee. The
third new type of leave would be for weather and safety issues,
when an agency determines employees cannot travel safely to or
from work. S. 2450 would restrict the length of time an agency
can place an employee on administrative leave, investigative
leave, or notice leave and would require nearly all executive
branch agencies to keep records related to the use of
administrative leave and the three new types of leave.
In addition, S. 2450 would require the Office of Personnel
Management (OPM) to prescribe regulations to implement the new
leave categories and to report on current practices regarding
administrative leave. Finally, the Government Accountability
Office (GAO) would have to write a report on the bill's
implementation five years after enactment.
Adding the new types of leave would not change the amounts
that agencies would pay an employee. In addition, because
agencies already record several different types of leave and
keep records related to personnel actions, CBO expects they
should be able to integrate the new categories relatively
easily. On the basis of information from OPM and GAO, CBO
estimates that implementing the legislation would have no
significant effect on the budget.
Because S. 2450 would not affect direct spending or
revenues, pay-as-you-go procedures do not apply. Enacting S.
2450 would not increase net direct spending or on-budget
deficits in any of the four consecutive 10-year periods
beginning in 2027.
S. 2450 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Dan Ready. The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
VI. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart A--General Provisions
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
SEC. 2302. ADMINISTRATIVE LEAVE
(a) * * *
(1) * * *
(2) * * *
(A) * * *
(i)
* * * * * * *
(xi) the implementation or
enforcement of any nondisclosure
policy, form, or agreement; [and]
(xii) a determination made by an
agency under section 6330a(c)(1) that
the continued presence of an employee
in the workplace during an
investigation of the employee or while
the employee is in a notice period, if
applicable, may--
(I) pose a threat to the
employee or others;
(II) result in the
destruction of evidence
relevant to an investigation;
(III) result in loss of or
damage to Government property;
or (IV) otherwise jeopardize
legitimate Government
interests; and
[(xii)] (xiii) any other significant
change in duties, responsibilities, or
working conditions;
* * * * * * *
Subpart E--Attendance and Leave
* * * * * * *
CHAPTER 63--LEAVE
* * * * * * *
Subchapter II--Other Paid Leave
6321. * * *
* * * * * * *
6330. Administrative Leave.
6330a. Investigative and Notice Leave.
6330b. Weather and Safety Leave.
SEC. 6330. ADMINISTRATIVE LEAVE.
(a) Definitions.--In this section--
(1) the term `administrative leave' means leave--
(A) without loss of or reduction in--
(i) pay;
(ii) leave to which an employee is
otherwise entitled under law; or
(iii) credit for time or service; and
(B) that is not authorized under any other
provision of law;
(2) the term `agency'--
(A) means an Executive agency (as defined in
section 105 of this title); and
(B) does not include the Government
Accountability Office; and
(3) the term `employee'--
(A) has the meaning given the term in section
2105; and
(B) does not include an intermittent employee
who does not have an established regular tour
of duty during the administrative work week.
(b) Administrative Leave.--
(1) In general.--An agency may place an employee in
administrative leave for a period of not more than 5
consecutive days.
(2) Rule of construction.--Nothing in paragraph (1)
shall be construed to limit the use of leave that is--
(A) specifically authorized under law; and
(B) not administrative leave.
(3) Records.--An agency shall record administrative
leave separately from leave authorized under any other
provision of law.
(c) Regulations.--
(1) OPM regulations.--Not later than 1 year after the
date of enactment of this section, the Director of the
Office of Personnel Management shall--
(A) prescribe regulations to carry out this
section; and
(B) prescribe regulations that provide
guidance to agencies regarding--
(i) acceptable agency uses of
administrative leave; and
(ii) the proper recording of--
(I) administrative leave; and
(II) other leave authorized
by law.
(2) Agency action.--Not later than 1 year after the
date on which the Director of the Office of Personnel
Management prescribes regulations under paragraph (1),
each agency shall revise and implement the internal
policies of the agency to meet the requirements of this
section.
(d) Relation to other laws.--Notwithstanding subsection (a)
of section 7421 of title 38, this section shall apply to an
employee described in subsection (b) of that section.
SEC. 6330A. INVESTIGATIVE LEAVE AND NOTICE LEAVE.
(a) Definitions.--In this section--
(1) the term `agency'--
(A) means an Executive agency (as defined in
section 105 of this title); and
(B) does not include the Government
Accountability Office;
(2) the term `Chief Human Capital Officer' means--
(A) the Chief Human Capital Officer of an
agency designated or appointed under section
1401; or
(B) the equivalent;
(3) the term `committees of jurisdiction', with
respect to an agency, means each committee in the
Senate and House of Representatives with jurisdiction
over the agency;
(4) the term `Director' means the Director of the
Office of Personnel Management;
(5) the term `employee'--
(A) has the meaning given the term in section
2105; and
(B) does not include--
(i) an intermittent employee who does
not have an established regular tour of
duty during the administrative
workweek; or
(ii) the Inspector General of an
agency;
(6) the term `investigative leave' means leave--
(A) without loss of or reduction in--
(i) pay;
(ii) leave to which an employee is
otherwise entitled under law; or
(iii) credit for time or service;
(B) that is not authorized under any other
provision of law; and
(C) in which an employee who is the subject
of an investigation is placed;
(7) the term `notice leave' means leave--
(A) without loss of or reduction in--
(i) pay;
(ii) leave to which an employee is
otherwise entitled under law; or
(iii) credit for time or service;
(B) that is not authorized under any other
provision of law; and
(C) in which an employee who is in a notice
period is placed; and
(8) the term `notice period' means a period beginning
on the date on which an employee is provided notice
required under law of a proposed adverse action against
the employee and ending on the date on which an agency
may take the adverse action.
(b) Leave for Employees Under Investigation or in a Notice
Period.--
(1) Authority.--An agency may, in accordance with
paragraph (2), place an employee in--
(A) investigative leave if the employee is
the subject of an investigation;
(B) notice leave if the employee is in a
notice period; or
(C) notice leave following a placement in
investigative leave if, not later than the day
after the last day of the period of
investigative leave--
(i) the agency proposes or initiates
an adverse action against the employee;
and
(ii) the agency determines that the
employee continues to meet 1 or more of
the criteria described in subsection
(c)(1).
(2) Requirements.--An agency may place an employee in
leave under paragraph (1) only if the agency has--
(A) made a determination with respect to the
employee under subsection (c)(1);
(B) considered the available options for the
employee under subsection (c)(2); and
(C) determined that none of the available
options under subsection (c)(2) is appropriate.
(c) Employees Under Investigation or in a Notice Period.--
(1) Determinations.--An agency may not place an
employee in investigative leave or notice leave under
subsection (b) unless the continued presence of the
employee in the workplace during an investigation of
the employee or while the employee is in a notice
period, if applicable, may--
(A) pose a threat to the employee or others;
(B) result in the destruction of evidence
relevant to an investigation;
(C) result in loss of or damage to Government
property; or
(D) otherwise jeopardize legitimate
Government interests.
(2) Available options for Employees under
investigation or in a notice period.--After making a
determination under paragraph (1) with respect to an
employee, and before placing an employee in
investigative leave or notice leave under subsection
(b), an agency shall consider taking 1 or more of the
following actions:
(A) Assigning the employee to duties in which
the employee is no longer a threat to--
(i) safety;
(ii) the mission of the agency;
(iii) Government property; or
(iv) evidence relevant to an
investigation.
(B) Allowing the employee to take leave for
which the employee is eligible.
(C) Requiring the employee to telework under
section 6502(c).
(D) If the employee is absent from duty
without approved leave, carrying the employee
in absence without leave status.
(E) For an employee subject to a notice
period, curtailing the notice period if there
is reasonable cause to believe the employee has
committed a crime for which a sentence of
imprisonment may be imposed.
(3) Duration of leave.--
(A) Investigative leave.--Subject to
extensions of a period of investigative leave
for which an employee may be eligible under
subsections (d) and (e), the initial placement
of an employee in investigative leave shall be
for a period not longer than 10 days.
(B) Notice leave.--Placement of an employee
in notice leave shall be for a period not
longer than the duration of the notice period.
(4) Explanation of leave.--
(A) In general.--If an agency places an
employee in leave under subsection (b), the
agency shall provide the employee a written
explanation of the leave placement and the
reasons for the leave placement.
(B) Explanation.--The written notice under subparagraph (A)
shall describe the limitations of the leave placement,
including--
(i) the applicable limitations under
paragraph (3); and (ii) in the case of
a placement in investigative leave, an
explanation that, at the conclusion of
the period of leave, the agency shall
take an action under paragraph (5).
(5) Agency action.--Not later than the day after the
last day of a period of investigative leave for an
employee under subsection (b)(1), an agency shall--
(A) return the employee to regular duty
status;
(B) take 1 or more of the actions authorized
under paragraph (2), meaning--
(i) assigning the employee to duties
in which the employee is no longer a
threat to--
(I) safety;
(II) the mission of the
agency;
(III) Government property; or
(IV) evidence relevant to an
investigation;
(ii) allowing the employee to take
leave for which the employee is
eligible;
(iii) requiring the employee to
telework under section 6502(c);
(iv) if the employee is absent from
duty without approved leave, carrying
the employee in absence without leave
status; or
(v) for an employee subject to a
notice period, curtailing the notice
period if there is reasonable cause to
believe the employee has committed a
crime for which a sentence of
imprisonment may be imposed;
(C) propose or initiate an adverse action
against the employee as provided under law; or
(D) extend the period of investigative leave
under subsections (d) and (e).
(6) Rule of construction.--Nothing in paragraph (5)
shall be construed to prevent the continued
investigation of an employee, except that the placement
of an employee in investigative leave may not be
extended for that purpose except as provided in
subsections (d) and (e).
(d) Initial Extension of Investigative Leave.--
(1) In general.--Subject to paragraph (4), if the
Chief Human Capital Officer of an agency, or the
designee of the Chief Human Capital Officer, approves
such an extension after consulting with the
investigator responsible for conducting the
investigation to which an employee is subject, the
agency may extend the period of investigative leave for
the employee under subsection (b) for not more than 30
days.
(2) Maximum number of extensions.--The total period
of additional investigative leave for an employee under
paragraph (1) may not exceed 110 days.
(3) Designation guidance.--Not later than 1 year
after the date of enactment of this section, the Chief
Human Capital Officers Council shall issue guidance to
ensure that if the Chief Human Capital Officer of an
agency delegates the authority to approve an extension
under paragraph (1) to a designee, the designee is at a
sufficiently high level within the agency to make an
impartial and independent determination regarding the
extension.
(4) Extensions for oig employees.--
(A) Approval.--In the case of an employee of
an Office of Inspector General--
(i) the Inspector General or the
designee of the Inspector General,
rather than the Chief Human Capital
Officer or the designee of the Chief
Human Capital Officer, shall approve an
extension of a period of investigative
leave for the employee under paragraph
(1); or
(ii) at the request of the Inspector
General, the head of the agency within
which the Office of Inspector General
is located shall designate an official
of the agency to approve an extension
of a period of investigative leave for
the employee under paragraph (1).
(B) Guidance.--Not later than 1 year after
the date of enactment of this section, the
Council of the Inspectors General on Integrity
and Efficiency shall issue guidance to ensure
that if the Inspector General or the head of an
agency, at the request of the Inspector
General, delegates the authority to approve an
extension under subparagraph (A) to a designee,
the designee is at a sufficiently high level
within the Office of Inspector General or the
agency, as applicable, to make an impartial and
independent determination regarding the
extension.
(e) Further Extension of Investigative Leave.--
(1) In general.--After reaching the limit under
subsection (d)(2), an agency may further extend a
period of investigative leave for an employee for a
period of not more than 60 days if, before the further
extension begins, the head of the agency or, in the
case of an employee of an Office of Inspector General,
the Inspector General submits a notification that
includes the reasons for the further extension to the--
(A) committees of jurisdiction;
(B) Committee on Homeland Security and
Governmental Affairs of the Senate; and
(C) Committee on Oversight and Government
Reform of the House of Representatives.
(2) No limit.--There shall be no limit on the number
of further extensions that an agency may grant to an
employee under paragraph (1).
(3) OPM review.--An agency shall request from the
Director, and include with the notification required
under paragraph (1), the opinion of the Director--
(A) with respect to whether to grant a
further extension under this subsection,
including the reasons for that opinion; and
(B) which shall not be binding on the agency.
(4) Sunset.--The authority provided under this
subsection shall expire on the date that is 6 years
after the date of enactment of this section.
(f) Consultation Guidance.--Not later than 1 year after the
date of enactment of this section, the Council of the
Inspectors General on Integrity and Efficiency, in consultation
with the Attorney General and the Special Counsel, shall issue
guidance on best practices for consultation between an
investigator and an agency on the need to place an employee in
investigative leave during an investigation of the employee,
including during a criminal investigation, because the
continued presence of the employee in the work place during the
investigation may--
(1) pose a threat to the employee or others;
(2) result in the destruction of evidence relevant to
an investigation;
(3) result in loss of or damage to Government
property; or
(4) otherwise jeopardize legitimate Government
interests.
(g) Reporting and Records.--
(1) In general.--An agency shall keep a record of the
placement of an employee in investigative leave or
notice leave by the agency, including--
(A) the basis for the determination made
under subsection (c)(1);
(B) an explanation of why an action under
subsection (c)(2) was not appropriate;
(C) the length of the period of leave;
(D) the amount of salary paid to the employee
during the period of leave;
(E) the reasons for authorizing the leave,
including, if applicable, the recommendation
made by an investigator under subsection
(d)(1); and
(F) the action taken by the agency at the end
of the period of leave, including, if
applicable, the granting of any extension of a
period of investigative leave under subsection
(d) or (e).
(2) Availability of records.--An agency shall make a
record kept under paragraph (1) available--
(A) to any committee of Congress, upon
request;
(B) to the Office of Personnel Management;
and
(C) as otherwise required by law, including
for the purposes of the Administrative Leave
Act of 2016 and the amendments made by that
Act.
(h) Regulations.--
(1) OPM action.--Not later than 1 year after the date
of enactment of this section, the Director shall
prescribe regulations to carry out this section,
including guidance to agencies regarding--
(A) acceptable purposes for the use of--
(i) investigative leave; and
(ii) notice leave;
(B) the proper recording of--
(i) the leave categories described in
subparagraph (A); and (ii) other leave
authorized by law;
(C) baseline factors that an agency shall
consider when making a determination that the
continued presence of an employee in the
workplace may--
(i) pose a threat to the employee or
others;
(ii) result in the destruction of
evidence relevant to an investigation;
(iii) result in loss or damage to
Government property; or
(iv) otherwise jeopardize legitimate
Government interests; and
(D) procedures and criteria for the approval
of an extension of a period of investigative
leave under subsection (d) or (e).
(2) Agency action.--Not later than 1 year after the
date on which the Director prescribes regulations under
paragraph (1), each agency shall revise and implement
the internal policies of the agency to meet the
requirements of this section.
(i) Relation to Other Laws.--Notwithstanding subsection (a)
of section 7421 of title 38, this section shall apply to an
employee described in subsection (b) of that section.'
SEC. 6330B. WEATHER AND SAFETY LEAVE.
(a) Definitions.--In this section--
(1) the term `agency'--
(A) means an Executive agency (as defined in
section 105 of this title); and
(B) does not include the Government
Accountability Office; and
(2) the term `employee'--
(A) has the meaning given the term in section
2105; and
(B) does not include an intermittent employee who does not
have an established regular tour of duty during the
administrative work week.
(b) Leave for Weather and Safety Issues.--An agency may
approve the provision of leave under this section to an
employee or a group of employees without loss of or reduction
in the pay of the employee or employees, leave to which the
employee or employees are otherwise entitled, or credit to the
employee or employees for time or service only if the employee
or group of employees is prevented from safely traveling to or
performing work at an approved location due to--
(1) an act of God;
(2) a terrorist attack; or
(3) another condition that prevents the employee or
group of employees from safely traveling to or
performing work at an approved location.
(c) Records.--An agency shall record leave provided under
this section separately from leave authorized under any other
provision of law.
(d) Regulations.--Not later than 1 year after the date of
enactment of this section, the Director of the Office of
Personnel Management shall prescribe regulations to carry out
this section, including--
(1) guidance to agencies regarding the appropriate
purposes for providing leave under this section; and
(2) the proper recording of leave provided under this
section.
(e) Relation to Other Laws.--Notwithstanding subsection (a)
of section 7421 of title 38, this section shall apply to an
employee described in subsection (b) of that section.
* * * * * * *
CHAPTER 65--TELEWORK
* * * * * * *
SEC. 6502. EXECUTIVE AGENCIES TELEWORK REQUIREMENT
(a) * * *
(b) * * *
(c) Required Telework.--If an agency determines under
section 6330a(c)(1) that the continued presence of an employee
in the workplace during an investigation of the employee or
while the employee is in a notice period, if applicable, may
pose 1 or more of the threats described in that section and the
employee is eligible to telework under subsections (a) and (b)
of this section, the agency may require the employee to
telework for the duration of the investigation or the notice
period, if applicable.
[all]