The Administrative Leave Act of 2016, proposed by Senators Grassley, Tester, Johnson, and Carper, is something we need to see more of. It is a bi-partisan bill that addresses a real problem without a lot of political posturing and partisanship. After thoroughly reviewing the bill, I have to say it is a good piece of legislation that I hope passes and is signed by the President.
The issue of administrative leave has been in the news since late 2014, when the Government Accountability Office issued a report that outlined the mess that administrative leave has become. The GAO report was followed by an article in the Washington Post that put the issue in the news in a big way. Suddenly everyone was paying attention to a problem that had not been in the public eye. Most federal HR professionals knew there was a problem, but there was no way for them to fix it at their levels. The only real solution would be either government-wide regulations or a new law that would put restrictions on use of admin leave and require reporting so the extent to which it is used can be tracked and monitored.
Because there is no consistency across government in how administrative leave is used and recorded, it is impossible to tell how much of it is actually being used. Some agencies are recording holidays as administrative leave, some record official time for union representatives as admin leave, few agencies record the reasons for it, and almost no one is managing it in a consistent manner. The spotlight GAO shone on the issue is now resulting in legislation to fix it. My contacts at the Office of Personnel Management tell me they had serous questions about the extent of OPM’s authority to issue regulations to solve the problem.
So now we have a bill to fix it. Given the difficulty in passing meaningful legislation that we have seen in recent years, this bill is a bit of a surprise. It is actually good. It recognizes that there are legitimate reasons for placing an employee on admin leave and that doing so can harm an employee or be used to go after whistleblowers. It also recognizes that putting employees on admin leave is sometimes too easy and because no one tracks it, it can go on far too long. Here are the key provisions and why they are necessary:
OPM Regulations. “Not later than 1 year after the date of enactment of this section, the Director of the Office of Personnel Management shall
- prescribe regulations to carry out this section; and
- prescribe regulations that provide guidance to agencies regarding—
- (i) acceptable agency uses of administrative leave; and
- the proper recording of
- administrative leave; and
- other leave authorized by law.
Because it was unclear if OPM actually had authority to regulate admin leave, this provision is necessary to make to grant them that authority and to provide a date certain on which those regulations would be issued. It also requires agencies to update their own policies within one year of OPM’s regulations being issued.
Investigative Leave and Notice Leave. The bill provides two new types of leave when an employee is under investigation or has been given notice of a proposed adverse action. It defines “notice period” as “a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.” The most important provisions are restrictions on reasons using both types of leave and their duration. Reasons are restricted to situations where the agency determines “the continued presence of the employee in the workplace during an investigation of the employee or while the employee is in a notice period, if applicable, may pose a threat to the employee or others; result in the destruction of evidence relevant to an investigation; result in loss of or damage to Government property; or otherwise jeopardize legitimate Government interests.” It also requires agencies to consider options such as details to different duties or telework to avoid placing the employee on investigative or notice leave. Both types of leave have limitations on their duration and require the employee to be given written notice of the reasons.
That last requirement may sound a bit odd, but it is absolutely necessary. I have been contacted by employees who were placed on admin leave and not given a reason why. There is no way an employee can defend against an action when s/he has no idea why it is being taken. The limits on duration provide for extensions, but escalate the approval level and congressional notification requirements as a means of pressing agencies to bring matters to a conclusion. Both requirements make sense and are likely to be effective.
Weather and Safety Leave. The bill provides for leave when “an employee or group of employees is prevented from safely traveling to or performing work at an approved location due to an act of God; a terrorist attack; or another condition that prevents the employee or group of employees from safely traveling to or performing work at an approved location.” This provision clarifies the legal authority for such leave, places reporting requirements on agencies, and requires OPM to issue regulations to govern its use.
Unlike some legislation we have seen in recent years, this bill does not bash federal employees, deprive them of rights, or weaken Civil Service protections. It is neither partisan nor overtly political. It is balanced, recognizes there is a problem that can be fixed, and establishes a framework that makes that fix much more likely to happen. It brings transparency, applies pressure on agencies to manage their use of admin leave, and protects employee rights. This is a good bill and one that I hope is a sign of more such legislation to come.