Senate Panel Approves Bill Limiting Administrative Leave

A Senate panel on Wednesday approved a bipartisan bill that would strictly limit the ability of federal agencies to put employees on extended paid administrative leave while they are being investigated -- an attempt to crack down on a practice that cost the government $3.1 billion from 2011 through 2013 alone.

The Senate Homeland Security and Governmental Affairs Committee reported out S. 2450, along with several other bills, during a Wednesday markup. The 2016 Administrative Leave Act defines administrative leave as separate from other forms of paid leave or excused absence and limits its use to five consecutive days at a time. It also creates two new leave categories for employees requiring extended absence due to personnel matters – investigative leave and notice leave – that agencies can tap, provided they meet specific criteria and are unable to use other available options. Agencies would have to comply with more stringent reporting requirements as well, including recording administrative leave separately from other forms of excused absences, and explaining to employees why they have been placed on investigative or notice leave.

Currently, agencies use administrative leave at their discretion, usually when they are investigating an employee’s alleged misconduct. But the tool’s loose guidelines and liberal application have led to abuse, with many employees spending months and years at home collecting pay while agencies investigate. The practice also sometimes punishes employees because it keeps in limbo their job and ability to challenge the agency while they await a final decision on their work status.

The Office of Personnel Management, prompted by a Government Accountability Office report, sent agencies a memorandum last summer saying it would begin collecting more information on paid administrative leave to put more parameters around its use and increase transparency. But many lawmakers, as well as federal employee advocates, believe the issue requires a legislative fix.

“The statutory and regulatory vacuum on the use of paid leave has contributed to this problem,” said Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, one of the bill’s sponsors. “Congress is stepping in with legislation to fill the void. Paid leave shouldn’t be a crutch for management to avoid making tough personnel decisions or a club for wrongdoers to use against whistleblowers.” OPM would have to issue regulations on administrative leave as well as the other categories of leave if the bill is enacted. OPM also would have to report to Congress regularly on agencies’ use of such leave.

The legislation, also sponsored by Homeland Security and Governmental Affairs Committee Chairman Ron Johnson, R-Wis.; Ranking Member Tom Carper, D-Del.; and Jon Tester, D-Mont., “does not affect agencies’ and employees’ use of excused absence already authorized in law (e.g., court time, organ donation, official time, etc.),” said a Grassley press release outlining the bill’s provisions. “It does not change the standards or levels of due process required for an agency to take an adverse action. It does not enable agencies to force employees to take their own leave or affect Merit Systems Protection Board jurisdiction.”

Johnson said in a statement the bill “forces government agencies to complete timely investigations and make fair decisions, and it mandates real accountability and transparency to Congress. The chairman and Carper both praised the “bipartisan, commonsense” legislation.

Agencies would have to hew to certain criteria to use the new paid leave categories (investigative and notice) the bill would create. They must first determine whether an employee can be temporarily reassigned or telework during the investigation before resorting to paid leave for those accused of misconduct. If those aren’t options, then they must meet “established criteria” or a “threat determination” to use investigative or notice leave. In other words, agencies must decide if the employee is a threat to himself or others that could result in the destruction of evidence relevant to the investigation, damage to government property, or “otherwise jeopardize legitimate government interests,” according to a summary of the legislation.

The bill leaves some wiggle room for agencies to use more than the allotted five days of administrative leave and 10 days of investigative leave, if warranted and justified. But without extensions, agencies must make a decision at the end of those deadlines on whether to return the employee to work or pursue an adverse personnel action, such as firing the employee.

The groups representing senior executives and federal managers have offered strong support for the legislation, as has the National Border Patrol Council, an affiliate of the American Federation of Government Employees.

A House bill seeking to reform the practice of administrative leave in federal agencies is circulating, though it is different from S. 2450. In January, the House Oversight and Government Reform Committee delayed a vote on the legislation, sponsored by Chairman Jason Chaffetz, R-Utah, to allow for more time to address Democratic concerns. 

A sample of 18 federal agencies spent more than $80 million in 2014 for some employees to not work for at least one month, according to GAO. In fiscal 2014, the Veterans Affairs Department outspent all other agencies surveyed with respect to employees on administrative leave for a month or more, auditors found. VA Deputy Secretary Sloan Gibson said during a December House hearing that the department would stop “routinely” putting employees under investigation on administrative leave, instead giving them other job duties while the disciplinary process plays out.