Senator looking to corral ‘Wild West environment’ of paid leave

A NASA employee’s medical condition that placed colleagues at risk. Reassigning three EPA employees would be “potentially disruptive.” An HHS worker who lost their medical credentials.

These five employees, and the thousands of others earning a paycheck from Uncle Sam, are part of the 3 percent of the federal workforce that charged between one month and three years of paid administrative leave between fiscal 2011 and 2013, to the tune of roughly $3.1 billion.

It’s this “Wild West environment” that needs taming, said Sen. Chuck Grassley (R-Iowa) this week, and he’s the one willing to take the reins.

In a report sent to various Senate and House committees on government affairs and oversight, Grassley, the chairman of the Senate Committee on the Judiciary, recommended that the government formally authorize and define “administrative leave,” and use that statute to reform a practice that he said “creates an environment ripe for abuse and derails meaningful oversight.”

“The statutory and regulatory vacuum on the use of paid leave has contributed to this problem,” Grassley said in a Dec. 1 statement. “This kind of leave shouldn’t be a crutch for management to avoid making tough personnel decisions or a club for wrongdoers to use against whistleblowers.”

“Based on the explanations and evidence received in the course of this inquiry, agencies are able to place an employee on administrative leave simply to avoid addressing an uncomfortable — or potentially even unjustifiable — personnel action,” Grassley’s report stated. “Maintaining this status quo serves neither the taxpayer nor the employee.”

A catch-all limbo

Grassley’s recommendations come after an investigation of 19 agencies and their use of paid administrative leave.

Among the information collected, investigators found that there is no statute that defines administrative leave, nor are there consistent guidelines across the federal government that agencies adhere to.

“In the absence of statutory mandates, only limited governmentwide direction on administrative leave exists,” the report stated. “The statutory and regulatory silence on when administrative leave may be used has left agencies free to use the designation broadly — for everything from negotiating collective bargaining agreements to returning from active military duty to investigating allegations of employee misconduct.”

Along with a broad definition for applying the practice, the time period also varies widely, the report found, which can lead to skyrocketing costs to cover these employees.

According to the report, 17 agencies spent about $81 million to put employees on paid leave for one month or more in fiscal 2014. The average amounts paid per employee that year ranged between $7,445 at the Department of Agriculture to $50,571 at the Department of Housing and Urban Development.

Some employees were placed on administrative leave for more than a year, the report found, but agencies did not go into detail about the reasons for that extended status.

“Many agencies that used administrative leave did not articulate how the employees posed threats to themselves, other employees or government resources,” the report stated. “Rather, we found that agencies appear to be using administrative leave as a way to place employees in a catch-all limbo status rather than address personnel problems expeditiously.”

The reasons given for putting employees on paid administrative leave for longer than a year include: misconduct (DHS), pending related criminal charges and safety and security issues (HUD), union activities (VA), connection with a personnel action (EPA), and investigations into allegations of hostile work environment and misconduct (SSA).

“In addition to a general failure to explain why administrative leave was the only appropriate option, agencies largely did not explain extended periods of administrative leave or why related investigations of alleged employee misconduct took so long,” the report stated. “The lengthy duration of leave, coupled with inadequate guidance or controls over the basis for using such leave, can lead to abuse.”

The report recommended taking seven actions. They include:

  • Encourage agencies to use options other than paid administrative leave.
  • Limit paid administrative leave to specific purposes and short-term duration.
  • Provide safeguards against the retaliatory use of administrative leave.
  • Ensure tracking and recording of administrative leave

Tab in ‘purgatory’ picked up by taxpayers

Federal employment attorney John Mahoney said in his years of practice he’s represented clients placed on leave for six months, and one that was even on leave for three years.

“It’s difficult for them,” he said. “Even though some would view that as paid vacation, it’s quite stressful for an employee in that scenario. They’re sitting in limbo, sometimes for a year, and they don’t know the future of their career. Agencies tend to forget them for a while, even though they’re getting paid.”

Paid administrative leave can also complicate a settlement and drastically increases litigation costs, Mahoney said.

That’s not to say agencies are at fault in every situation, he added. There’s an inventory of investigations to deal with, and a lack of staff or resources can also impact an investigation’s time frame, but there are cases when administrative leave turns into  limbo for an employee.

“It’s certainly better than being put on unpaid administrative leave,” he said. “But it’s not the best way to handle things. Agencies should either promptly investigate and clear, or promptly investigate and discipline the person. The taxpayers are paying the bill for the purgatory of administrative leave.”

This is not the first time Grassley has shined a spotlight on the use of paid administrative leave, and in fact, this most recent report stems from 17 letters mailed by Grassley and Rep. Darrell Issa (R-Calif.) last October, to various agencies included in a 2014 Government Accountability Report that looked at the practices and policies of paid administrative leave.

“Federal agencies have the discretion to grant paid administrative leave for a variety of reasons, such as weather closures and blood donations,” the GAO report stated. “While paid administrative leave costs taxpayers, it has not been reviewed or reported on extensively.”

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