‘OPM sent a signal’: Still no final regulations on 2017 administrative leave law

After six years, agencies are still missing the final regulations they need to make significant changes to federal administrative leave policy.

Congress gave the Office of Personnel Management 270 days to implement new federal leave regulations under the Administrative Leave Act, a provision included in the fiscal 2017 National Defense Authorization Act. But OPM has missed that deadline by far — at least for some of the more complicated changes to the leave policy.

Congress passed the Administrative Leave Act to create three categories of administrative leave, or paid leave that some federal employees can take without using up their individual leave. Those new categories were investigative leave, notice leave and weather and safety leave.

The law was also supposed to cap the number of days feds can spend on administrative leave and tighten up the timeline for agencies to complete personnel investigations, which can often go on for six to 18 months — sometimes longer. Investigative and notice leave are reserved for employees under agency investigation, or who are awaiting a decision on an adverse personnel action.

“The law was passed to solve the dire cultural problem in the federal government, particularly, at the management and the leadership level, where personnel actions are not taken swiftly and appropriately when they are warranted,” Senior Executives Association Director of Policy and Outreach Jason Briefel said in an interview.

SEA partnered closely with the bipartisan lawmakers who authored the Administrative Leave Act.

Specifically, the law limits the time employees can remain on investigative or notice leave to 10 days, which can be extended, incrementally, up to a 90-day maximum. The law also lets agencies ask an employee on investigative leave to perform similar work duties through telework. The lack of a cap on administrative leave was creating significant costs to taxpayers, according to lawmakers in the 2017 NDAA.

But because OPM has not issued final regulations on investigative or notice leave, despite the initial nine-month deadline, agencies don’t have the guidance necessary to properly enforce the law.

“Some agencies do follow the law, but many don’t,” said Debra Roth, a partner at law firm Shaw, Bransford & Roth, who has represented some agency executives who have been impacted by administrative leave. “The abuse still goes on. We certainly have cases that are clearly not in accordance with the statute.”

“Senior executives have been put out on, what should have been this kind of investigative leave, as the statute envisions. But because there were no OPM regulations on it, agencies just did whatever they have done in the past,” Briefel added.

A spokesperson said OPM has been consulting with agencies to implement the provisions, but did not share a timeline on implementation of the Administrative Leave Act.

OPM finalized regulations on one part of the Administrative Leave Act, weather and safety leave, back in 2018. Weather and safety leave lets agencies grant paid time off during emergency conditions, such as a terrorist attack or extreme weather conditions, when an employee can’t safely travel to or from the office. Teleworking employees are, generally, not granted this type of leave. OPM has on occasion recommended agencies use this type of leave for employees during instances of severe weather.

Notably, in the 2018 final regulations on weather and safety leave, OPM said, it would issue separate final regulations to address the other types of leave included in the Administrative Leave Act “at a later date,” but nearly five years later, the regulations have not been published.

OPM proposed new regulations on investigative and notice leave back in 2017 and received 89 comments on the document. At the time, OPM said, part of the reason for the delay on finalizing the regulations was held up by the large number of comments on the proposal.

Another more longstanding reason for the holdup on finalizing the regulations, according to an OPM spokesperson, is that the existing text of the Administrative Leave Act could create issues for personnel serving overseas. The law’s full implementation, for instance, could prevent employees in combat zones or those who work overseas from using paid leave to take time off for rest and recuperation.

In 2019, Sen. Tom Carper (D-Del.) introduced an amendment to address that challenge, aiming to create another new category of federal leave, called rest and recuperation leave. It would let agencies grant up to 20 days of paid time off annually for employees who work in a combat zone or a high risk, high threat area.

The amendment, attached to a 2019 bill from Sen. James Lankford (R-Okla.), cleared the Homeland Security and Governmental Affairs Committee, but ultimately did not pass. Carper’s staff did not respond to Federal News Network’s request for comment on any current plans to reintroduce the provision. According to an agency spokesperson, OPM is working through those issues with affected agencies.

But Briefel said, it’s been too long for rest and recuperation leave to still be a holdup on issuing the final regulations for investigative and notice leave.

“OPM appears to be stuck for four years now on figuring out how to resolve this dispute, which has nothing to do with why the law was passed,” Briefel said.

Plans to issue final regulations on investigative and notice leave, are also missing from OPM’s most recent unified regulatory agenda from fall 2022. OPM did not comment on why the regulations were not included and did not share who at the agency creates the regulatory agenda.

The goal of the Administrative Leave Act, was to simultaneously ensure due process rights for federal employees, while also limiting paid time off for those who committed some sort of personnel offense.

“Data show that there are too many examples of employees placed in administrative leave for six months or longer, leaving the employees without any available recourse to return to duty status or challenge the decision of the agency,” Congress said in the 2017 NDAA.

The law also encourages agencies to conduct personnel investigations more quickly, or otherwise find ways to put employees under investigation back to work in other offices. And the provision added that administrative leave should be used sparingly — prior to using paid leave to address personnel issues, agencies should consider other options for an employee, such as a temporary reassignment or a transfer.

Payments to employees on this type of leave, including instances of agencies incorrectly using administrative leave, accrue significant costs to taxpayers.

For instance, back in 2014, the Government Accountability Office reported that 263 federal employees had spent between one and three years on paid administrative leave. Costing the government an estimated, $31 million in salary payments per year. The 2014 GAO report contains the most recent data publicly available. GAO did not have more recent data, readily, available and OPM declined to provide more recent information.

“Agencies were paying millions and millions of dollars a year to employees who were not working, while their agency was doing nothing at all to adjudicate the personnel issue that was hanging over their head,” Briefel said.

The Administrative Leave Act gained bipartisan support. Sen. Jon Tester (D-Mont.) introduced the legislation in 2016. And Sens. Carper, Lankford, Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), as well as former Sen. Claire McCaskill (D-Mo.), were co-sponsors of the bill.

“Paying government employees to stay at home not only robs taxpayers, it allows agencies to drag their feet in disciplinary action,” Johnson said in a December 2016 statement on the 2017 NDAA. “This commonsense legislation will save taxpayers millions of dollars every year.”

Federal News Network reached out multiple times to congressional staff of all co-sponsors of the legislation, but did not receive any comments about the lack of final regulations, or plans to address it.

Roth, partner at Shaw, Bransford & Roth, said the continued lack of final regulations from OPM is an abuse of taxpayer funds and creates a power imbalance inside of agencies.

“OPM sent a signal that the statute doesn’t matter,” she said.

Briefel added, “It really was  good bipartisan legislation to fix a real problem in the government, as opposed to attacking symptoms of our problems. That’s all the more reason why we continue to be completely disappointed in OPM. There’s no way to restore the trust of the American people in the federal government if we cannot do the basics for managing the workforce.”

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