In December 2016, Congress passed legislation restricting the use of administrative leave for federal employees with the signing of the Administrative Leave Act of 2016.Before that, agencies granted paid excused absences (administrative leave) to employees. These new regulations proposed place additional restrictions on agencies regarding leave.
Administrative Leave Restrictions
Below is a summary of the new policy in the 2017 Defense Act regarding administrative leave.
- Administrative leave is separate from other forms of paid leave or excused absence already legislatively authorized.
- Agencies must record other forms of authorized excused absences separate from administrative leave.
- Investigative or notice leave is separate from administrative leave. These 2 categories could be used for extended excused absences because of personal issues. These categories are for completing an investigation or when an adverse action is proposed. In both cases, the agency must conclude the employee needs to be out of the office.
- It allows agencies to use investigative or notice leave through a multi-step process that involves escalating controls over its use.
- Agencies can’t use investigative or notice leave unless certain criteria are met.
- Notice leave is used when government interests are jeopardized. This includes continued presence of the threatening employee, possible destruction of evidence, or loss or damage to government property.
- It directs agencies to consider options prior to use of investigative or notice leave. These options include assigning duties in which the employee is no longer a threat or allowing the employee to telework.
- It requires agencies to provide the employee with an explanation of why they are being placed on investigative/notice leave. Records of these new forms of leave must be kept by the agency.
Limitations on Administrative Leave
Under the proposed regulations, an agency may not place an employee on administrative leave to investigate misconduct or performance for more than 10 calendar days in a calendar year. If the investigation is ongoing, the agency may decide to allow the employee to telework. And the agency may put an employee on investigative leave which can be used for 3-30-day increments.
The proposed legislation states, “These two types of leave (investigative and notice 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 destruction of evidence relevant to an investigation, result in loss or damage to government property, or otherwise jeopardize legitimate government interests. 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.”
Weather and Safety Leave
This type of leave is for situations where an agency determines employees can’t travel safely to and from, or perform work at, their normal work site, a telework site, or other approved location because of severe weather or another emergency. There are no time limitations for this type of leave.
It can only be granted within an employees’ tour of duty, established for purposes of charging annual and sick leave. Meaning, for full-time employees, the tour of duty is either a 40-hour basic workweek basic work requirement for employees on a flexible or compressed work schedule or an uncommon tour of duty.
Agencies can’t grant weather/safety leave for hours during which employees are on other preapproved leave or paid time off. They also can’t approve a request to cancel pre-approved leave or paid time off if the agency determines the request is primarily for the purpose of obtaining weather and safety leave instead of using another kind of leave such as sick or annual leave.