Science group threatens lawsuit over OPM’s failure to implement limiting involuntary leave for feds accused of misconduct

An environmental advocacy group on Friday delivered an ultimatum to the Office of Personnel Management: finally implement a nearly 7-year-old law aimed at limiting agencies’ ability to put federal workers accused of misconduct on long bouts of paid administrative leave, or be sued.

In 2016, Congress enacted the Administrative Leave Act as part of the fiscal 2017 National Defense Authorization Act in an effort to clamp down on a phenomenon where federal workers under investigation can find themselves in employment limbo—paid, but unable to work—for years at a time. The law caps the use of administrative leave in cases of alleged misconduct or performance at 10 days per calendar year, while creating new types of leave—investigative and notice—that agencies can use in 30-day increments. Extensions beyond a total of 90 days must reported to Congress.

In 2017, OPM proposed regulations to implement the law, including creating the new leave categories, as well as an avenue for a suspended employee to return to work via telework as the investigations or their misconduct cases proceed. But it never finalized those rules, instead blasting through a September 2017 deadline to issue regulations and a June 2018 deadline for agencies to implement the law.

Public Employees for Environmental Responsibility, a nonprofit advocacy group, demanded action to implement the law last week in a petition for rulemaking, and warned if the agency fails to do so within 60 days, the nonprofit will file a lawsuit.

In the years since the Administrative Leave Act was signed into law, PEER said federal agencies’ “abuse” of the administrative leave system for feds under investigation has continued unabated. Between fiscal 2018 and 2020, the National Park Service tallied 530,000 in paid administrative leave at a cost of more than $10 million, while PEER, which often represents federal scientists in employment cases, has witnessed multiple instances where their clients were on leave for extended periods of time.

“Even after passage of the ALA, many civil servants have been left dangling on paid suspension for months and, in several cases, for years,” PEER wrote. “For example, an agency managing director represented by PEER was put on paid administrative leave for more than three years before his agency acted on his case. Two other senior PEER clients faced periods of more than six and 13 months of indeterminate administrative and investigative leave. Other civil servants have been left in lengthy limbos because agency management found them inconvenient or a political threat but lacked grounds to remove them. Imposing indefinite leave of whatever label allows agencies to ‘disappear’ employees without due process.”

The organization urged OPM to include provisions in its implementing rules to further limit the potential for misuse of administrative or investigative leave, including provisions prescribing punishment for managers who impose excessive leave on federal workers accused of misconduct and to require agencies to report how much administrative leave they used on an annual basis.

“These paid suspensions are not vacations but are used to punish and isolate whistleblowers,” said Peter Jenkins, PEER senior counsel, in a statement Monday. “Congress acted to fix these abuses, but the bureaucracy has simply ignored it. If OPM fails to act promptly, it will be sued to force action. Six years of doing nothing is unreasonable in any book.”