[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2450 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 2450

 To amend title 5, United States Code, to address administrative leave 
             for Federal employees, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 20, 2016

  Mr. Tester (for himself, Mr. Grassley, Mr. Johnson, and Mr. Carper) 
introduced the following bill; which was read twice and referred to the 
        Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 5, United States Code, to address administrative leave 
             for Federal employees, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Administrative Leave Act of 2016''.

SEC. 2. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) agency use of administrative leave, and leave that is 
        referred to incorrectly as administrative leave in agency 
        recording practices, has exceeded reasonable amounts--
                    (A) in contravention of--
                            (i) established precedent of the 
                        Comptroller General of the United States; and
                            (ii) guidance provided by the Office of 
                        Personnel Management; and
                    (B) resulting in significant cost to the Federal 
                Government;
            (2) administrative leave should be used sparingly;
            (3) prior to the use of administrative leave, an agency 
        should consider other actions, including--
                    (A) temporary reassignment;
                    (B) transfer; and
                    (C) telework;
            (4) an agency should prioritize and expeditiously conclude 
        an investigation in which an employee is placed in 
        administrative leave so that, not later than the conclusion of 
        the leave period--
                    (A) the employee is returned to duty status; or
                    (B) an appropriate personnel action is taken with 
                respect to the employee;
            (5) data show that there are too many examples of employees 
        placed in administrative leave for 6 months or longer, leaving 
        the employees without any available recourse to--
                    (A) return to duty status; or
                    (B) challenge the decision of the agency;
            (6) an agency should ensure accurate and consistent 
        recording of the use of administrative leave so that 
        administrative leave can be managed and overseen effectively; 
        and
            (7) other forms of excused absence authorized by law should 
        be recorded separately from administrative leave, as defined by 
        this Act.

SEC. 3. ADMINISTRATIVE LEAVE.

    (a) In General.--Subchapter II of chapter 63 of title 5, United 
States Code, is amended by adding at the end the following:
``Sec. 6329. Administrative leave
    ``(a) Definitions.--In this section--
            ``(1) the term `administrative leave' means leave--
                    ``(A) without loss of or reduction in--
                            ``(i) pay;
                            ``(ii) leave to which an employee is 
                        otherwise entitled under law; or
                            ``(iii) credit for time or service; and
                    ``(B) that is not authorized under any other 
                provision of law;
            ``(2) the term `agency'--
                    ``(A) means an Executive agency (as defined in 
                section 105 of this title); and
                    ``(B) does not include the Government 
                Accountability Office; and
            ``(3) the term `employee' means an employee of an agency.
    ``(b) Administrative Leave.--
            ``(1) In general.--An agency may not place an employee in 
        administrative leave for a period of more than 5 consecutive 
        days.
            ``(2) Rule of construction.--Nothing in paragraph (1) shall 
        be construed to limit the use of leave that was specifically 
        authorized under law on the day before the date of enactment of 
        this section.
            ``(3) Records.--An agency shall record administrative leave 
        separately from leave authorized under any other provision of 
        law.
    ``(c) Regulations.--
            ``(1) OPM regulations.--Not later than 1 year after the 
        date of enactment of this section, the Director of the Office 
        of Personnel Management shall--
                    ``(A) prescribe regulations to carry out this 
                section; and
                    ``(B) prescribe regulations that provide guidance 
                to agencies regarding--
                            ``(i) acceptable agency uses of 
                        administrative leave; and
                            ``(ii) the proper recording of--
                                    ``(I) administrative leave; and
                                    ``(II) other leave authorized by 
                                law.
            ``(2) Agency action.--Not later than 1 year after the date 
        on which the Director of the Office of Personnel Management 
        prescribes regulations under paragraph (1), each agency shall 
        revise and implement the internal policies of the agency to 
        meet the requirements of this section.''.
    (b) OPM Study.--Not later than 120 days after the date of enactment 
of this Act, the Director of the Office of Personnel Management, in 
consultation with Federal agencies, groups representing Federal 
employees, and other relevant stakeholders, shall submit to the 
Committee on Homeland Security and Governmental Affairs of the Senate 
and the Committee on Oversight and Government Reform of the House of 
Representatives a report identifying agency practices, before the date 
of enactment of this Act, of placing an employee in administrative 
leave for more than 5 consecutive days when the placement was not 
specifically authorized by law.
    (c) Technical and Conforming Amendment.--The table of sections for 
subchapter II of chapter 63 of title 5, United States Code, is amended 
by inserting after the item relating to section 6328 the following:

``6329. Administrative leave.''.

SEC. 4. INVESTIGATIVE LEAVE AND NOTICE LEAVE.

    (a) In General.--Subchapter II of chapter 63 of title 5, United 
States Code, as amended by this Act, is further amended by adding at 
the end the following:
``Sec. 6330. Investigative leave and notice leave
    ``(a) Definitions.--In this section--
            ``(1) the term `agency'--
                    ``(A) means an Executive agency (as defined in 
                section 105 of this title);
                    ``(B) does not include the Government 
                Accountability Office; and
                    ``(C) for the purposes of notice leave, means the 
                employing agency of an employee covered under chapter 
                75;
            ``(2) the term `Chief Human Capital Officer' means--
                    ``(A) the Chief Human Capital Officer of an agency 
                designated or appointed under section 1401; or
                    ``(B) the equivalent;
            ``(3) the term `committees of jurisdiction', with respect 
        to an agency, means each committee in the Senate and House of 
        Representatives with jurisdiction over the agency;
            ``(4) the term `Director' means the Director of the Office 
        of Personnel Management;
            ``(5) the term `employee'--
                    ``(A) means an employee of an agency; and
                    ``(B) does not include the Inspector General of an 
                agency;
            ``(6) the term `investigative leave' means leave--
                    ``(A) without loss of or reduction in--
                            ``(i) pay;
                            ``(ii) leave to which an employee is 
                        otherwise entitled under law; or
                            ``(iii) credit for time or service;
                    ``(B) that is not authorized under any other 
                provision of law; and
                    ``(C) in which an employee who is the subject of an 
                investigation is placed;
            ``(7) the term `notice leave' means leave--
                    ``(A) without loss of or reduction in--
                            ``(i) pay;
                            ``(ii) leave to which an employee is 
                        otherwise entitled under law; or
                            ``(iii) credit for time or service;
                    ``(B) that is not authorized under any other 
                provision of law; and
                    ``(C) in which an employee who is in a notice 
                period is placed; and
            ``(8) the term `notice period' means 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.
    ``(b) Leave for Employees Under Investigation or in a Notice 
Period.--
            ``(1) Authority.--An agency may, in accordance with 
        paragraph (2), place an employee in--
                    ``(A) investigative leave if the employee is the 
                subject of an investigation;
                    ``(B) notice leave if the employee is in a notice 
                period; or
                    ``(C) notice leave following a placement in 
                investigative leave if, not later than the day after 
                the last day of the period of investigative leave--
                            ``(i) the agency proposes or initiates an 
                        adverse action against the employee; and
                            ``(ii) the agency determines that the 
                        employee continues to meet 1 or more of the 
                        criteria described in subsection (c)(1).
            ``(2) Requirements.--An agency may place an employee in 
        leave under paragraph (1) only if the agency has--
                    ``(A) made a determination with respect to the 
                employee under subsection (c)(1);
                    ``(B) considered the available options for the 
                employee under subsection (c)(2); and
                    ``(C) determined that none of the available options 
                under subsection (c)(2) is appropriate.
    ``(c) Employees Under Investigation or in a Notice Period.--
            ``(1) Determinations.--An agency may not place an employee 
        in investigative leave or notice leave under subsection (b) 
        unless 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--
                    ``(A) pose a threat to the employee or others;
                    ``(B) result in the destruction of evidence 
                relevant to an investigation;
                    ``(C) result in loss of or damage to Government 
                property; or
                    ``(D) otherwise jeopardize legitimate Government 
                interests.
            ``(2) Available options for employees under investigation 
        or in a notice period.--After making a determination under 
        paragraph (1) with respect to an employee, and before placing 
        an employee in investigative leave or notice leave under 
        subsection (b), an agency shall consider taking 1 or more of 
        the following actions:
                    ``(A) Assigning the employee to duties in which the 
                employee is no longer a threat to--
                            ``(i) safety;
                            ``(ii) the mission of the agency;
                            ``(iii) Government property; or
                            ``(iv) evidence relevant to an 
                        investigation.
                    ``(B) Allowing the employee to take leave for which 
                the employee is eligible.
                    ``(C) Requiring the employee to telework under 
                section 6502(c).
                    ``(D) If the employee has become absent without 
                requesting leave, carrying the employee in absence 
                without leave status.
                    ``(E) For an employee subject to a notice period, 
                curtailing the notice period if there is reasonable 
                cause to believe the employee has committed a crime for 
                which a sentence of imprisonment may be imposed.
            ``(3) Duration of leave.--
                    ``(A) Investigative leave.--Subject to extensions 
                of a period of investigative leave for which an 
                employee may be eligible under subsections (d) and (e), 
                the initial placement of an employee in investigative 
                leave shall be for a period not longer than 10 days.
                    ``(B) Notice leave.--Placement of an employee in 
                notice leave shall be for a period not longer than the 
                duration of the notice period.
            ``(4) Explanation of leave.--
                    ``(A) In general.--If an agency places an employee 
                in leave under subsection (b), the agency shall provide 
                the employee a written explanation of the leave 
                placement and the reasons for the leave placement.
                    ``(B) Explanation.--The written notice under 
                subparagraph (A) shall describe the limitations of the 
                leave placement, including--
                            ``(i) the applicable limitations under 
                        paragraph (3); and
                            ``(ii) in the case of a placement in 
                        investigative leave, an explanation that, at 
                        the conclusion of the period of leave, the 
                        agency shall take an action under paragraph 
                        (5).
            ``(5) Agency action.--Not later than the day after the last 
        day of a period of investigative leave for an employee under 
        subsection (b)(1), an agency shall--
                    ``(A) return the employee to regular duty status;
                    ``(B) take 1 or more of the actions authorized 
                under paragraph (2), meaning--
                            ``(i) assigning the employee to duties in 
                        which the employee is no longer a threat to--
                                    ``(I) safety;
                                    ``(II) the mission of the agency;
                                    ``(III) Government property; or
                                    ``(IV) evidence relevant to an 
                                investigation;
                            ``(ii) allowing the employee to take leave 
                        for which the employee is eligible;
                            ``(iii) requiring the employee to telework 
                        under section 6502(c);
                            ``(iv) if the employee has become absent 
                        without requesting leave, carrying the employee 
                        in absence without leave status; or
                            ``(v) for an employee subject to a notice 
                        period, curtailing the notice period if there 
                        is reasonable cause to believe the employee has 
                        committed a crime for which a sentence of 
                        imprisonment may be imposed;
                    ``(C) propose or initiate an adverse action against 
                the employee as provided under law; or
                    ``(D) extend the period of investigative leave 
                under subsections (d) and (e).
            ``(6) Rule of construction.--Nothing in paragraph (5) shall 
        be construed to prevent the continued investigation of an 
        employee, except that the placement of an employee in 
        investigative leave may not be extended for that purpose except 
        as provided in subsections (d) and (e).
    ``(d) Initial Extension of Investigative Leave.--
            ``(1) In general.--Subject to paragraph (4), if the Chief 
        Human Capital Officer of an agency, or the designee of the 
        Chief Human Capital Officer, approves such an extension after 
        consulting with the investigator responsible for conducting the 
        investigation to which an employee is subject, the agency may 
        extend the period of investigative leave for the employee under 
        subsection (b) for not more than 30 days.
            ``(2) Maximum number of extensions.--The total period of 
        additional investigative leave for an employee under paragraph 
        (1) may not exceed 110 days.
            ``(3) Designation guidance.--Not later than 1 year after 
        the date of enactment of this section, the Chief Human Capital 
        Officers Council shall issue guidance to ensure that if the 
        Chief Human Capital Officer of an agency delegates the 
        authority to approve an extension under paragraph (1) to a 
        designee, the designee is at a sufficiently high level within 
        the agency to make an impartial and independent determination 
        regarding the extension.
            ``(4) Extensions for oig employees.--
                    ``(A) Approval.--In the case of an employee of an 
                Office of Inspector General--
                            ``(i) the Inspector General or the designee 
                        of the Inspector General, rather than the Chief 
                        Human Capital Officer or the designee of the 
                        Chief Human Capital Officer, shall approve an 
                        extension of a period of investigative leave 
                        for the employee under paragraph (1); or
                            ``(ii) at the request of the Inspector 
                        General, the head of the agency within which 
                        the Office of Inspector General is located 
                        shall designate an official of the agency to 
                        approve an extension of a period of 
                        investigative leave for the employee under 
                        paragraph (1).
                    ``(B) Guidance.--Not later than 1 year after the 
                date of enactment of this section, the Council of the 
                Inspectors General on Integrity and Efficiency shall 
                issue guidance to ensure that if the Inspector General 
                or the head of an agency, at the request of the 
                Inspector General, delegates the authority to approve 
                an extension under subparagraph (A) to a designee, the 
                designee is at a sufficiently high level within the 
                Office of Inspector General or the agency, as 
                applicable, to make an impartial and independent 
                determination regarding the extension.
    ``(e) Further Extension of Investigative Leave.--
            ``(1) In general.--After reaching the limit under 
        subsection (d)(2), an agency may further extend a period of 
        investigative leave for an employee for a period of not more 
        than 60 days if, before the further extension begins, the head 
        of the agency or, in the case of an employee of an Office of 
        Inspector General, the Inspector General submits a notification 
        that includes the reasons for the further extension to the--
                    ``(A) committees of jurisdiction;
                    ``(B) Committee on Homeland Security and 
                Governmental Affairs of the Senate; and
                    ``(C) Committee on Oversight and Government Reform 
                of the House of Representatives.
            ``(2) No limit.--There shall be no limit on the number of 
        further extensions that an agency may grant to an employee 
        under paragraph (1).
            ``(3) OPM review.--An agency shall request from the 
        Director, and include with the notification required under 
        paragraph (1), the opinion of the Director--
                    ``(A) with respect to whether to grant a further 
                extension under this subsection, including the reasons 
                for that opinion; and
                    ``(B) which shall not be binding on the agency.
            ``(4) Sunset.--The authority provided under this subsection 
        shall expire on the date that is 6 years after the date of 
        enactment of this section.
    ``(f) Consultation Guidance.--Not later than 1 year after the date 
of enactment of this section, the Council of the Inspectors General on 
Integrity and Efficiency, in consultation with the Attorney General and 
the Special Counsel, shall issue guidance on best practices for 
consultation between an investigator and an agency on the need to place 
an employee in investigative leave during an investigation of the 
employee, including during a criminal investigation, because the 
continued presence of the employee in the workplace during the 
investigation may--
            ``(1) pose a threat to the employee or others;
            ``(2) result in the destruction of evidence relevant to an 
        investigation;
            ``(3) result in loss of or damage to Government property; 
        or
            ``(4) otherwise jeopardize legitimate Government interests.
    ``(g) Reporting and Records.--
            ``(1) In general.--An agency shall keep a record of the 
        placement of an employee in investigative leave or notice leave 
        by the agency, including--
                    ``(A) the basis for the determination made under 
                subsection (c)(1);
                    ``(B) an explanation of why an action under 
                subsection (c)(2) was not appropriate;
                    ``(C) the length of the period of leave;
                    ``(D) the amount of salary paid to the employee 
                during the period of leave;
                    ``(E) the reasons for authorizing the leave, 
                including, if applicable, the recommendation made by an 
                investigator under subsection (d)(1); and
                    ``(F) the action taken by the agency at the end of 
                the period of leave, including, if applicable, the 
                granting of any extension of a period of investigative 
                leave.
            ``(2) Availability of records.--An agency shall make a 
        record kept under paragraph (1) available--
                    ``(A) to any committee of Congress, upon request;
                    ``(B) to the Office of Personnel Management; and
                    ``(C) as otherwise required by law, including for 
                the purposes of the Administrative Leave Act of 2016.
    ``(h) Regulations.--
            ``(1) OPM action.--Not later than 1 year after the date of 
        enactment of this section, the Director shall prescribe 
        regulations to carry out this section, including guidance to 
        agencies regarding--
                    ``(A) acceptable purposes for the use of--
                            ``(i) investigative leave; and
                            ``(ii) notice leave;
                    ``(B) the proper recording of--
                            ``(i) the leave categories described in 
                        subparagraph (A); and
                            ``(ii) other leave authorized by law;
                    ``(C) baseline factors that an agency shall 
                consider when making a determination that the continued 
                presence of an employee in the workplace may--
                            ``(i) pose a threat to the employee or 
                        others;
                            ``(ii) result in the destruction of 
                        evidence relevant to an investigation;
                            ``(iii) result in loss or damage to 
                        Government property; or
                            ``(iv) otherwise jeopardize legitimate 
                        Government interests; and
                    ``(D) procedures and criteria for the approval of 
                an extension of a period of investigative leave under 
                subsection (d) or (e).
            ``(2) Agency action.--Not later than 1 year after the date 
        on which the Director prescribes regulations under paragraph 
        (1), each agency shall revise and implement the internal 
        policies of the agency to meet the requirements of this 
        section.''.
    (b) Personnel Action.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (xi), by striking ``and'' at the end;
            (2) by redesignating clause (xii) as clause (xiii); and
            (3) by inserting after clause (xi) the following:
                    ``(xii) a determination made by an agency under 
                section 6330(c)(1) that the continued presence of an 
                employee in the workplace during an investigation of 
                the employee or while the employee is in a notice 
                period, if applicable, may--
                            ``(I) pose a threat to the employee or 
                        others;
                            ``(II) result in the destruction of 
                        evidence relevant to an investigation;
                            ``(III) result in loss or damage to 
                        Government property; or
                            ``(IV) otherwise jeopardize legitimate 
                        Government interests; and''.
    (c) GAO Report.--Not later than 5 years after the date of enactment 
of this Act, the Comptroller General of the United States shall submit 
to Congress a report evaluating the implementation of the authority 
provided under sections 6329 and 6330 of title 5, United States Code, 
as added by section 3(a) and subsection (a) of this section, 
respectively, including--
            (1) an assessment of agency use of the authority provided 
        under subsection (e) of such section 6330, including data 
        regarding--
                    (A) the number and length of extensions granted 
                under that subsection; and
                    (B) the number of times that the Director of the 
                Office of Personnel Management, under paragraph (3) of 
                that subsection--
                            (i) concurred with the decision of an 
                        agency to grant an extension; and
                            (ii) did not concur with the decision of an 
                        agency to grant an extension, including the 
                        bases for those opinions of the Director;
            (2) recommendations to Congress, as appropriate, on the 
        need for extensions beyond the extensions authorized under 
        subsection (d) of such section 6330; and
            (3) a review of the practice of agency placement of an 
        employee in investigative or notice leave under subsection (b) 
        of such section 6330 because of a determination under 
        subsection (c)(1)(D) of that section that the employee 
        jeopardized legitimate Government interests, including whether 
        any agency abused the authority of the agency by making such a 
        placement when the placement based on such a determination was 
        not justified.
    (d) Telework.--Section 6502 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(c) Required Telework.--If an agency determines under section 
6330(c)(1) that the continued presence of an employee in the workplace 
during an investigation of the employee or while the employee is in a 
notice period, if applicable, may pose 1 or more of the threats 
described in that section and the employee is eligible to telework 
under subsections (a) and (b) of this section, the agency may require 
the employee to telework for the duration of the investigation or the 
notice period, if applicable.''.
    (e) Technical and Conforming Amendment.--The table of sections for 
subchapter II of chapter 63 of title 5, United States Code, is amended 
by inserting after the item relating to section 6329, as added by this 
Act, the following:

``6330. Investigative leave and notice leave.''.

SEC. 5. LEAVE FOR WEATHER AND SAFETY ISSUES.

    (a) In General.--Subchapter II of chapter 63 of title 5, United 
States Code, as amended by this Act, is further amended by adding at 
the end the following:
``Sec. 6331. Weather and safety leave
    ``(a) Definitions.--In this section--
            ``(1) the term `agency'--
                    ``(A) means an Executive agency (as defined in 
                section 105 of this title); and
                    ``(B) does not include the Government 
                Accountability Office; and
            ``(2) the term `employee' means an employee of an agency.
    ``(b) Leave for Weather and Safety Issues.--An agency may approve 
the provision of leave to an employee or a group of employees without 
loss of or reduction in the pay of the employee or employees, leave to 
which the employee or employees are otherwise entitled, or credit to 
the employee or employees for time or service only if the employee or 
group of employees is prevented from safely traveling to or performing 
work at an approved location due to--
            ``(1) an act of God;
            ``(2) a terrorist attack; or
            ``(3) another condition that prevents the employee or group 
        of employees from safely traveling to or performing work at an 
        approved location.
    ``(c) Records.--An agency shall record leave provided under this 
section separately from leave authorized under any other provision of 
law.
    ``(d) 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, 
including--
            ``(1) guidance to agencies regarding the appropriate 
        purposes for providing leave under this section; and
            ``(2) the proper recording of leave provided under this 
        section.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
subchapter II of chapter 63 of title 5, United States Code, is amended 
by inserting after the item relating to section 6330, as added by this 
Act, the following:

``6331. Weather and safety leave.''.

SEC. 6. ADDITIONAL OVERSIGHT.

    (a) In General.--Not later than 3 years after the date of enactment 
of this Act, the Director of the Office of Personnel Management shall 
complete a review of agency policies to determine whether agencies have 
complied with the requirements of this Act.
    (b) Report to Congress.--Not later than 90 days after completing 
the review under subsection (a), the Director shall submit to Congress 
a report evaluating the results of the review.
                                 <all>