Bipartisan Bill Would Limit Administrative Leave to Five Days

A new bipartisan Senate bill 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 legislation introduced Thursday 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 can’t 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. Grassley has long had an interest in government management and federal employee issues. “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.

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.”

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, is the employee 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 offered strong support for the legislation. “Sens. Tester and Grassley, and their diligent staff, have taken the time to understand this issue,” said Senior Executives Association Interim President Tim Dirks. “During the course of over a year, they have actively engaged SEA and other stakeholders from all sides in the crafting of this targeted, fair, and thoughtful legislation,” Dirks said, adding, “This is what genuine, impactful legislating looks like, and SEA is proud to endorse this bill.”

FMA National President Patricia Niehaus said the bill “creates a federal workforce that promotes productivity and accountability to the American public” by giving agencies and managers “the necessary tools to address poor performers and encourage efficiency and effectiveness.”

The head of the National Border Patrol Council, an affiliate of the American Federation of Government Employees, also welcomed the legislative reforms. “Currently, the U.S. Customs and Border Protection routinely places Border Patrol agents on extended administrative leave without justification of length, forcing our agents to languish with no avenue of recourse,” said Brandon Judd, NBPC president. “NBPC supports codifying the definition of administrative leave in hopes that it will curb the overuse of extended administrative leave policies by federal agencies.” 

A House bill seeking to reform the practice of administrative leave in federal agencies is circulating, though it is different from the Grassley-Tester bill. Earlier this month, 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.