[Congressional Record Volume 162, Number 83 (Wednesday, May 25, 2016)]
[Senate]
[Pages S3213-S3216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4210. Mr. TESTER (for himself, Mr. Grassley, Mr. Johnson, and Mr.
Carper) submitted an amendment intended to be proposed by him to the
bill S. 2943, to authorize appropriations for fiscal year 2017 for
military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the end of subtitle C of title XI, add the following:
SEC. 1138. ADMINISTRATIVE LEAVE.
(a) Short Title.--This section may be cited as the
``Administrative Leave Act of 2016''.
(b) 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 paid leave to address personnel
issues, 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 the amendments made by this section.
(c) Administrative Leave.--
(1) In general.--Subchapter II of chapter 63 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 6329a. 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'--
``(A) has the meaning given the term in section 2105; and
``(B) does not include an intermittent employee who does
not have an established regular tour of duty during the
administrative workweek.
``(b) Administrative Leave.--
``(1) In general.--An agency may place an employee in
administrative leave for a period of not more than 5
consecutive days.
``(2) Rule of construction.--Nothing in paragraph (1) shall
be construed to limit the use of leave that is--
``(A) specifically authorized under law; and
``(B) not administrative leave.
``(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
[[Page S3214]]
``(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.
``(d) Relation to Other Laws.--Notwithstanding subsection
(a) of section 7421 of title 38, this section shall apply to
an employee described in subsection (b) of that section.''.
(2) 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, as of
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.
(3) 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 the following:
``6329a. Administrative leave.''.
(d) Investigative Leave and Notice Leave.--
(1) In general.--Subchapter II of chapter 63 of title 5,
United States Code, as amended by this section, is further
amended by adding at the end the following:
``Sec. 6329b. 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); and
``(B) does not include the Government Accountability
Office;
``(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) has the meaning given the term in section 2105; and
``(B) does not include--
``(i) an intermittent employee who does not have an
established regular tour of duty during the administrative
workweek; or
``(ii) 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 is absent from duty without approved
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 is absent from duty without approved
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
[[Page S3215]]
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 under
subsection (d) or (e).
``(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 and the
amendments made by that Act.
``(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.
``(i) Relation to Other Laws.--Notwithstanding subsection
(a) of section 7421 of title 38, this section shall apply to
an employee described in subsection (b) of that section.''.
(2) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (xi), by striking ``and'' at the end;
(B) by redesignating clause (xii) as clause (xiii); and
(C) by inserting after clause (xi) the following:
``(xii) a determination made by an agency under section
6329b(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 of or damage to Government property;
or
``(IV) otherwise jeopardize legitimate Government
interests; and''.
(3) GAO report.--Not later than 5 years after the date of
enactment of this Act, the Comptroller General of the United
States shall report 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 on the results of an evaluation of the
implementation of the authority provided under sections 6329a
and 6329b of title 5, United States Code, as added by
subsection (c)(1) and paragraph (1) of this subsection,
respectively, including--
(A) an assessment of agency use of the authority provided
under subsection (e) of such section 6329b, including data
regarding--
(i) the number and length of extensions granted under that
subsection; and
(ii) 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;
(B) recommendations to Congress, as appropriate, on the
need for extensions beyond the extensions authorized under
subsection (d) of such section 6329b; and
(C) a review of the practice of agency placement of an
employee in investigative or notice leave under subsection
(b) of such section 6329b because of a determination under
subsection (c)(1)(D) of that section that the employee
jeopardized legitimate Government interests, including the
extent to which such determinations were supported by
evidence.
(4) 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 6329b(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.''.
(5) 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 6329a, as added by this section, the following:
``6329b. Investigative leave and notice leave.''.
(e) Leave for Weather and Safety Issues.--
(1) In general.--Subchapter II of chapter 63 of title 5,
United States Code, as amended by this section, is further
amended by adding at the end the following:
``Sec. 6329c. 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'--
``(A) has the meaning given the term in section 2105; and
``(B) does not include an intermittent employee who does
not have an established regular tour of duty during the
administrative workweek.
[[Page S3216]]
``(b) Leave for Weather and Safety Issues.--An agency may
approve the provision of leave under this section 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.
``(e) Relation to Other Laws.--Notwithstanding subsection
(a) of section 7421 of title 38, this section shall apply to
an employee described in subsection (b) of that section.''.
(2) 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 6329b, as added by this section, the following:
``6329c. Weather and safety leave.''.
(f) Additional Oversight.--
(1) 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 section and the amendments made by this
section.
(2) Report to congress.--Not later than 90 days after
completing the review under paragraph (1), the Director shall
submit to Congress a report evaluating the results of the
review.
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