OPM delivers final rule on paid administrative leave, 8 years after law was passed
After eight years in limbo, agencies should now no longer be able to place federal employees on administrative leave indefinitely during personnel investigations.
The Office of Personnel Management published a final rule this week on the 2016 Administrative Leave Act, capping how long federal employees can remain on administrative investigative leave to 10 days per year. The regulations clarify how agencies should implement the restrictions on paid administrative leave for employees who are under investigation or awaiting a decision on an adverse personnel action.
Congress passed the legislation as part of the fiscal 2017 National Defense Authorization Act after growing concerns about the costs associated with administrative leave, as well as the long time periods agencies were taking to complete personnel investigations. In 2014, the Government Accountability Office estimated that the salaries of federal employees on paid administrative leave were costing the government $31 million per year.
Congress initially gave OPM until September 2017 — about nine months — to implement guidance for agencies. But it ultimately took eight years for OPM to finalize the regulations on administrative leave.
The final rule also comes several months after the Public Employees for Environmental Responsibility filed a lawsuit against OPM to try to get the agency to finalize the long-awaited guidance on the Administrative Leave Act.
“We like to think that our activism and advocacy and formal petition and legal process pushed them to get it done — and it really needed to get done,” PEER Senior Counsel Peter Jenkins said in an interview.
OPM said the yearslong delay on the final rule was due to “certain issues” arose in public comments on the proposed regulations in 2017.
In the final regulations, OPM clarified that an existing collective bargaining agreement would take precedent over the administrative leave regulations, if they came before the final rule is put in place. But any future collective bargaining agreements have to comply with the requirements in the new final rule.
Still, the concerns that were raised in the public comments “led to additional consideration and deliberation, resulting in fresh and more recent analysis of the law, its legislative history, the proposed regulations and the comments received on the proposed regulations,” OPM said. “OPM is now pleased to be in a position to release final regulations that support effective leave administration and government operational transparency.”
The Administrative Leave Act codified three categories of paid leave in Title 5: investigative leave, notice leave and weather and safety leave. OPM first proposed regulations on the legislation in 2017, but then left the regulations for investigative leave and notice leave unfinalized for years. OPM did, however, finalize regulations on weather and safety leave in 2018. OPM said the new final rule should ensure consistency in how agencies use and track administrative leave.
“Although OPM has previously provided guidance on the proper use of administrative leave, agencies will now have the benefit of codified parameters for these new leave categories,” OPM said. “These provisions will also help agencies, OPM, Congress and other stakeholders monitor whether supervisors use these types of leave appropriately and sparingly.”
During the eight years that the regulations were still pending finalization, agencies were able to continue keeping some federal employees who were under investigation on paid administrative leave indefinitely. The costs of the paid leave vary greatly by agency, but in the final rule, OPM estimated that the governmentwide costs amount to about $37.8 million each year.
Source(s): Federal News Network, received on December 20, 2024