Congress enacted the Administrative Leave Act as part of the 2017 National Defense Authorization Act. Douglas Rissing/Getty Images
PEER sues to force OPM to implement administrative leave reforms
Though Congress enacted a law aimed at ending agencies’ abuse of involuntary administrative leave, the federal government’s dedicated HR agency has yet to implement its key provisions.
An environmental advocacy group is following through on the ultimatum it set last fall, suing the Office of Personnel Management in an effort to force the government’s HR agency to implement a 7-year-old law aimed at limiting agencies’ ability to put federal workers accused of misconduct on prolonged stints of administrative leave.
In 2016, Congress enacted the Administrative Leave Act as part of the 2017 National Defense Authorization Act. The measure attempts to reduce agencies’ propensity to place federal workers who are under investigation into employment limbo—paid but unable to work—for long stretches of time. It caps the use of administrative leave in instances of poor performance or alleged misconduct at 10 days per calendar year, while creating investigative and notice leave, which agencies can use in 30-day increments. Extensions beyond 90 days must be reported to Congress.
The following year, OPM proposed regulations to implement the law’s provisions, as well as create an avenue for a suspended employee to return to work via telework as investigations proceed, but never finalized them. Last fall, Public Employees for Environmental Responsibility filed a petition that OPM issue new regulations to implement the law and warned if the agency failed to do so within 60 days, PEER would sue.
On Tuesday, PEER did just that, filing a lawsuit against OPM in the U.S. District Court for the District of Columbia that seeks to compel the agency to take action to implement the law. According to the group’s filing, OPM General Counsel Webb Lyons told the group last November that the agency would take action to implement the law by June of this year. Once that deadline passed, PEER decided to pursue legal action.
“The Office of Personnel Management is not living up to its title,” said PEER Senior Counsel Peter Jenkins in a statement. “The basis of this suit is unreasonable delay, and seven years of inaction is unreasonable in any book. At PEER, we often see whistleblowers or employees who deliver inconvenient truths placed into limbo in hopes that they will simply resign. Exiling dissidents into a bureaucratic gulag sends a powerful message to their colleagues that they had better toe the line.”
PEER’s lawsuit names two federal employees who endured multiple years on the sideline, only to return to work with worse career prospects, despite no wrongdoing being found during their involuntary sabbaticals.
Dr. Ruth Etzel served as director of the Environmental Protection Agency’s Office of Children’s Health Protection, following a career in pediatric medicine, but she was put on administrative and then investigative leave for six months during the Trump administration.
“EPA later admitted that its investigation did not find any cause for discipline and that there was insufficient evidence to support the allegations that caused her to be placed on leave,” PEER wrote in the lawsuit. “However, while on leave she was demoted and reassigned to a newly-fabricated position as a ‘biologist’ within the EPA Office of Water, where she continues to be employed, but for which she is vastly overqualified. Her distinguished 30-year career in pediatrics and public health was decimated and she suffered severe emotional distress.”
OPM did not respond to a request for comment.