[Federal Register Volume 82, Number 133 (Thursday, July 13, 2017)]
[Proposed Rules]
[Pages 32263-32281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14712]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 82, No. 133 / Thursday, July 13, 2017 /
Proposed Rules
[[Page 32263]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 630
RIN 3206-AN49
Administrative Leave, Investigative Leave, Notice Leave, and
Weather and Safety Leave
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management proposes to issue new
regulations on the granting and recording of administrative leave,
investigative leave, notice leave, and weather and safety leave. The
Administrative Leave Act of 2016 created these new categories of
statutorily authorized paid leave and established parameters for their
use by Federal agencies. The regulations will provide a framework for
agency compliance with the new statutory requirements.
DATES: Comments must be received on or before August 14, 2017.
ADDRESSES: You may submit comments, identified by RIN 3206-AN49 using
one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow the
instructions for submitting comments.
Email: [email protected].
FOR FURTHER INFORMATION CONTACT: Kurt Springmann or Julie Ohr by email
at [email protected] or by telephone at (202) 606-2858.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing proposed regulations to implement the Administrative Leave Act
of 2016, enacted under section 1138 of the National Defense
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328, 130 Stat.
2000, December 23, 2016). The Administrative Leave Act of 2016,
hereafter referred to as ``the Act,'' added three new sections in title
5 of the U.S. Code that provide for specific categories of paid leave
and requirements that shall apply to each: Sec. 6329a Regarding
administrative leave; Sec. 6329b regarding investigative leave and
notice leave; and Sec. 6329c regarding weather and safety leave.
Background
Prior to passage of the Act, agencies granted paid excused absences
(often called ``administrative leave'') to employees based on the broad
management authority in 5 U.S.C. 301-302, which allows heads of
agencies to prescribe regulations for the government of their
organizations. This authority does not expressly address excused
absence and thus does not set parameters on its use. However, some
direction on use of the excused absence authority was provided in
Comptroller General decisions and in OPM guidance.
In the sense of Congress provisions in section 1138(b) of the Act,
Congress expressed the need for legislation to address concerns that
usage of administrative leave had sometimes exceeded reasonable amounts
and resulted in significant costs to the Government. Congress wanted
agencies to (1) use administrative leave sparingly and reasonably, (2)
consider alternatives to use of administrative leave when employees are
under investigation, and (3) act expeditiously to conclude
investigations and either return the employee to duty or take an
appropriate personnel action. Congress also wanted agencies to keep
accurate records regarding the use of administrative leave for various
purposes.
In drafting the Act, Congress considered an October 2014 report
entitled ``Federal Paid Administrative Leave,'' which was prepared by
the Government Accountability Office (GAO). (See GAO Report 15-79.) At
the request of Congress, GAO examined the paid administrative leave
policies at selected Federal agencies, reviewed practices in recording
and reporting of paid administrative leave, and described categories of
purposes for which large amounts of paid administrative leave have been
charged. GAO found that agency policies on administrative leave varied
and that some employees were on administrative leave for long periods
(primarily due to extended personnel investigations), which had
significant cost implications. GAO also found problems in agencies'
recording and reporting practices with respect to administrative leave.
The GAO report was cited in Congressional committee reports on draft
bills addressing the use of administrative leave for Federal employees.
(See House Report 114-520, August 25, 2016, accompanying H.R. 4359 and
Senate Report 114-292, July 6, 2016, accompanying S. 2450.) Those
committee reports also include useful background information on the
development of legislation that eventually culminated in the passage of
the Administrative Leave Act of 2016.
New Subparts in 5 CFR Part 630
In this proposed regulation, OPM proposes to add three new subparts
to 5 CFR part 630 that correspond to the three new statutory sections
in 5 U.S.C. chapter 63: Subpart N, Administrative Leave (implementing 5
U.S.C. 6329a); Subpart O, Investigative Leave and Notice Leave
(implementing 5 U.S.C. 6329b); and Subpart P, Weather and Safety Leave
(implementing 5 U.S.C. 6329c).
Administrative leave is permitted--at an agency's discretion but
subject to statutory and regulatory requirements--when an agency
determines that no other paid leave is available under other law. Under
Sec. 6329a(b)(1), an agency may place an employee on administrative
leave for no more than 10 total workdays in any given calendar year.
Investigative leave and notice leave are permitted--at an agency's
discretion but subject to statutory and regulatory requirements--when
an agency determines that an employee must be removed from the
workplace while under investigation or during a notice period (i.e.,
the period after the employee has received a proposed notice of adverse
action before a final decision is made and takes effect). These two
types of leave may be used only when an authorized agency official
determines, through evaluation of baseline factors, that the continued
presence of the employee in the workplace may pose a threat to the
employee or others, result in the destruction of evidence relevant to
an investigation, result in loss of or damage to Government property,
or otherwise jeopardize legitimate Government interests. Before using
these two types of leave, agencies must consider options to avoid or
minimize the use of paid leave, such as changing the employee's
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duties or work location. Use of investigative leave is subject to time
limitations and special approvals for extensions.
Weather and safety leave is permitted--at an agency's discretion
but subject to statutory and regulatory requirements, agency policies,
and lawful collective bargaining provisions--when an agency determines
that employees cannot safely travel to and from, or perform work at,
their normal worksite, a telework site, or other approved location
because of severe weather or other emergency situations. There are no
time limitations with respect to this type of leave.
Both the law and the proposed regulations address recordkeeping and
reporting requirements with which agencies must comply. Agencies must
keep separate records on each type of leave: Administrative leave,
investigative leave, notice leave, and weather and safety leave.
In the latter portion of this Supplementary Information, we present
a section-by-section explanation for the regulations in each subpart
(N, O, and P).
Effective Date
The Act directs OPM to prescribe (i.e., publish) regulations to
carry out the new statutes on administrative leave, investigative
leave, notice leave, and weather and safety leave no later than 270
calendar days after the Act's enactment on December 23, 2016--i.e.,
September 19, 2017. (See 5 U.S.C. 6329a(c)(1), 6329b(h)(1), and section
6329c(d).) The Act further directs that agencies ``revise and implement
the internal policies of the agency'' to meet the statutory
requirements pertaining to administrative leave, investigative leave,
and notice leave no later than 270 calendar days after the date on
which OPM issues its regulations. (See 5 U.S.C. 6329a(c)(2) and
6329b(h)(2).) There is no similar agency implementation provision in
the law governing weather and safety leave.
When OPM issues final regulations, we intend to specify that the
regulations for subparts N and O (dealing with administrative leave and
investigative/notice leave, respectively) will take effect 270 days
after publication by specifying a separate ``implementation date.''
Consistent with the statutory provisions, agencies will have 270
calendar days following the date of publication of the final
regulations to revise and implement internal policies to meet the new
requirements. That will give agencies time to develop internal policies
and procedures, including necessary changes in recordkeeping and
reporting systems. OPM intends to further specify that subpart P
(dealing with weather and safety leave) will take effect 30 days after
the date of publication of the final regulations. However, we expect to
delay enforcing the requirement that agencies separately report weather
and safety leave to OPM until the 270th day following publication of
the final regulations.
Amendment to Annual and Sick Leave Regulations
In OPM's regulations dealing with general provisions for annual and
sick leave (5 CFR subpart B), we propose to remove the second sentence
in Sec. 630.206(a), which reads: ``If an employee is unavoidably or
necessarily absent for less than one hour, or tardy, the agency, for
adequate reason, may excuse him without charge to leave.'' This
regulation was not an authority for creating a type of paid time off,
but merely recognized the existence of agency authority to provide
brief periods of excused absence under Comptroller General decisions.
Now that OPM has authority to regulate the use of administrative
leave under 5 U.S.C. 6329a, it is more appropriate for this particular
application of administrative leave to be covered under the new
regulations. We would expect administrative leave under 5 U.S.C. 6329a
to be used rarely, if at all, for the purpose of excusing a tardy
employee. We note that weather and safety leave under 5 U.S.C. 6329c
may appropriately be used so that, due to weather or other emergency
conditions, an agency may allow employees to have a delayed arrival to
avoid unsafe travel conditions.
Subpart N--Administrative Leave
Sec. 630.1401--Purpose and Applicability
Section 630.1401 addresses the purpose of the proposed regulations
on administrative leave--i.e., to implement 5 U.S.C. 6329a. It also
notes OPM's authority to prescribe regulations to carry out the new
statutory provisions, including the appropriate uses and the proper
recording of administrative leave. Additionally, this section provides
that subpart N applies to employees, as defined at 5 U.S.C. 2105, who
are employed in executive branch agencies, but does not apply to
intermittent employees.
Sec. 630.1402--Definitions
Section 630.1402 provides definitions of terms for purposes of
subpart N. Explanations regarding certain definitions are provided
below.
We define administrative leave to mean paid leave authorized at the
discretion of an agency that is provided without loss or reduction in
pay, other leave, or service credit and that is exclusive of leave
authorized under any other provision of statute or Presidential
directive. Thus, for example, a back pay correction may provide for
retroactive pay for a nonduty period when a separation is later found
to be erroneous. Such a granting of retroactive pay is not a granting
of administrative leave under 5 U.S.C. 6329a, since it is authorized
under the back pay law and regulations. Also, the 5 days of excused
absence granted by the Presidential memorandum of November 14, 2003,
for employees returning from active military duty is not considered
administrative leave under this subpart. We also clarify that
administrative leave excludes periods when the employee is engaged in
activities that qualify as official hours of work, such as attendance
at an agency town hall meeting.
We provide that the term agency refers to an executive agency of
the Federal Government. As required by 5 U.S.C. 6329a(a)(2)(c), the
General Accountability Office is excluded from this definition, and
thus from coverage by subpart N. When used in the context of an agency
making determinations or taking actions, ``agency'' refers to the
agency head or management officials who are authorized (including by
delegation) to make a given determination or take a given action.
We define employee as an individual who is covered by subpart N as
described in Sec. 630.1401(b) and (c). As provided in that section and
in 5 U.S.C. 6329a(a)(3)(A), ``employee'' has the meaning used in 5
U.S.C. 2105. As provided in 5 U.S.C. 6329a(a)(3)(B), intermittent
employees who do not have an established regular tour of duty during
the administrative workweek are excluded from the definition of
``employee,'' and therefore are not covered by the provisions of
subpart N. While not expressly addressed in the proposed regulations,
we note that certain Presidential appointees in the executive branch
are exempt from the leave system under 5 U.S.C. 6301(2)(x)-(xii) and
are entitled to pay solely because of their status as officers. Such
officers are not placed in leave status for any purpose; thus, subparts
N, O, and P do not apply to such officers.
We define head of the agency to mean the head of an agency or a
designated representative of such agency head who is (1) an agency
headquarters-level official reporting directly to the agency head or a
deputy agency head and (2) the sole such representative for the
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entire agency. This term is used in Sec. 630.1403(a)(5)(i) and (b)(4).
We define Presidential directive to mean an Executive order,
Presidential memorandum, or official written statement by the President
in which the President specifically directs agency heads to provide
employees with a paid excused absence under a specified set of
conditions. This excludes a Presidential action that (1) merely
encourages agency heads to use an agency head authority (e.g., section
6329a) to grant a paid excused absence under certain conditions or (2)
leaves them with discretion regarding whether to grant excused absence
in a particular scenario or discretion regarding the amount of excused
absence to be granted in a particular scenario.
Sec. 630.1403--Principles and Prohibitions
This section sets out the general principles and prohibited uses of
the administrative leave authority under 5 U.S.C. 6329a and subpart N.
In developing the general principles, OPM took into account past OPM
policy and guidance as well as Comptroller General decisions regarding
the use of general administrative leave. In paragraph (a)(1), we list
three conditions. To justify any use of administrative leave, one of
these conditions must be met. The first condition is that an agency may
grant administrative leave when the absence directly relates to the
mission of the agency. For example, an agency could grant
administrative leave to an employee to attend a professional meeting or
perform certain volunteer work when these relate to the agency's
mission.
The second condition permits an agency to grant administrative
leave when the absence is for an activity officially sponsored or
sanctioned by the agency. For example, an agency may grant
administrative leave to permit employees to participate in an American
Red Cross blood donation drive being conducted in an agency facility.
The third condition permits an agency to grant administrative leave
when the agency determines that the absence would be in the interest of
the agency or the Government as a whole. For instance, an agency may
grant administrative leave to allow an employee to participate in
employee wellness or health promotion events (e.g., influenza
vaccinations, health screenings, or health education forums) or to
ensure that an employee has the opportunity to vote. Also, an agency
may grant administrative leave to cover brief periods of tardiness or
to provide for early dismissal when it is determined to be in the
interest of the agency.
Section 630.1403(a)(5) provides that a determination that an
absence satisfies one of the three conditions in Sec. 630.1403(a)(1)
must be (1) permitted under policies established by the head of the
agency; and (2) reviewed and approved by an official of the agency who
is (or is acting) at a higher level than the official making the
determination (unless the determination is made by the head or acting
head of the agency). The first requirement ensures that agency heads
are accountable for adopting policies to ensure appropriate use of
administrative leave, consistent with OPM regulations. The second
requirement--that administrative leave be approved only after second-
level review--should help prevent inappropriate uses and ensure that
administrative leave is used sparingly.
Section 630.1403(a)(2) states the principle that administrative
leave is not an employee entitlement, but is granted sparingly at the
discretion of the agency. Accordingly, employees are not entitled to a
certain number of administrative leave hours or days during any
specified period, whether biweekly, monthly, or annually.
Section 630.1403(a)(3) states the principle that the appropriate
use of administrative leave is for brief periods of time. In most
instances, this will be no longer than 1 day; however, exceptions may
be approved. For example, an exception is made for times when an
employee is subject to an investigation and his or her retention in
duty status is inconsistent with the best interests of the Government.
In this case, the agency--prior to placing an employee on investigative
leave under subpart O of these regulations--must charge administrative
leave until expiration of the 10-workday limit described in 5 U.S.C.
6329a(b)(1) and Sec. 630.1404. (See also 5 U.S.C. 6329b(b)(3)(A).)
Section 630.1403(a)(4) states the principle that administrative
leave may not be established as an ongoing or recurring entitlement.
Accordingly, an agency may not provide a recurring entitlement to
administrative leave, for example, on an employee's birthday or on a
day following a Thursday holiday. However, an agency may grant
administrative leave on an ad hoc basis for an activity or event that
may be ongoing or recurring and is in the Government's interest (e.g.,
influenza vaccinations or blood donation drives).
In addition to the general principles, Sec. 630.1403(b) describes
specific prohibited uses of administrative leave. Section
630.1403(b)(1) provides that agencies are prohibited from using
administrative leave to mark the memory of a deceased Federal official,
which is consistent with the principle underlying the statutory bar in
5 U.S.C. 6105 prohibiting closure of agencies to mark the memory of a
deceased Federal official. We note, however, that section 6105 does not
constrain the President from exercising his or her authority in 5
U.S.C. 6103(b) to declare a holiday by Executive order in connection
with the death of a President. If the President provides excused
absence for Federal employees to commemorate the service of a deceased
former President, such excused absence is not a granting of
administrative leave under 5 U.S.C. 6329a or subpart N, since it is
granted under a Presidential directive and is also authorized as a
holiday under 5 U.S.C. 6103(b). (The definition of ``administrative
leave'' under Sec. 630.1402 excludes paid leave authorized under
Presidential directives.)
Section 630.1403(b)(2) prohibits agencies from granting
administrative leave to permit an employee to participate in an event
for his or her personal benefit or the benefit of an outside
organization, unless the participation would satisfy one of the
conditions in Sec. 630.1403(a)(1). To permit employees to participate
in these events, agencies alternatively may approve employees' requests
to adjust their work schedules or to use annual leave, leave without
pay, compensatory time off, credit hours, or other earned time off.
Section 630.1403(b)(3) prohibits agencies from granting
administrative leave as a reward to recognize the performance or
contributions of employees. The proper personnel authorities for
recognizing the performance or contributions of employees are cash
awards and time-off awards. This prohibition does not affect employee
attendance at agency awards ceremonies, since such attendance is
considered to be on-duty time in direct support of the agency mission.
Section 630.1403(b)(4) prevents agencies from granting
administrative leave to allow employees to engage in volunteer work or
other civic activity that is not officially sponsored or sanctioned by
the head of the agency, based on the agency's mission or Governmentwide
interests. This prohibition bars agencies from providing administrative
leave for volunteer and other activities that do not benefit the agency
or serve a Governmentwide interest. A Governmentwide interest is
generally documented through a statement of
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support by the President or the OPM Director. For employees who wish to
participate in volunteer activities during basic working hours,
agencies alternatively may permit work schedule adjustments or approve
use of annual leave, compensatory time off, credit hours, or other
earned time off, or may allow employees to take leave without pay. For
long-term volunteer work, agencies may approve part-time or job sharing
schedules.
Sec. 630.1404--Calendar Year Limitation
Section 630.1404 addresses the 10-workday calendar year limitation
on use of administrative leave imposed by 5 U.S.C. 6329a(b)(1).
Paragraph (a) states the limitation and notes that the 10-day
limitation carries over when an employee transfers to another covered
agency or separates and is reemployed by a covered agency within the
same calendar year. For example, if an employee has been granted 6
workdays of administrative leave at one agency and then transfers to
another agency, the employee may be granted only 4 more workdays of
administrative leave by the gaining agency during the remainder of the
calendar year.
Section 630.1404(b) provides for the conversion of the 10-workday
calendar year limitation to an aggregate limit on hours in order to
facilitate application of the limit to employees on different work
schedules. For full-time employees who are not on an uncommon tour of
duty under Sec. 630.210, the 10-workday limitation is converted to an
80-hour limitation. For full-time employees with an uncommon tour of
duty, the converted calendar year limitation equals the number of hours
in the biweekly uncommon tour of duty, averaged as necessary. For
example, for an employee with an uncommon tour of 144 hours biweekly,
the 10-workday limitation equates to 144 hours. (Note that the regular
80-hour calendar limit multiplied by 144/80 equals 144 hours.) For a
part-time employee, the calendar year limitation is prorated based on
the number of hours in the employee's tour of duty consistent with the
proration of annual and sick leave required by 5 U.S.C. 6302(c). For
example, the 10-workday limitation for a half-time employee equates to
40 hours, since 80 hours times 40/80 equals 40 hours.
Section 630.1404(c) provides that the calendar year limitation
applies only to administrative leave. The limitation does not apply to
investigative leave and notice leave provided under subpart O, weather
and safety leave provided under subpart P, or leave provided under
other statute or a Presidential directive.
Section 630.1404(d) provides that, in accordance with 5 U.S.C.
6329b(b)(3)(A), if an employee under investigation must be placed on
leave and that employee has not yet reached the 10-workday calendar
year limitation, administrative leave under subpart N must first be
used instead of investigative leave. This is because investigative
leave under subpart O may not be used until the employee has exhausted
the 10-workday limitation.
Section 630.1404(e) prohibits agencies from granting additional
administrative leave until the next calendar year when an employee
reaches the calendar year limit. If an employee has reached his or her
calendar year limit and a situation arises where the employee might
have been granted administrative leave but for the limit, the employee
must continue to work or use other appropriate leave (e.g., annual
leave), time off, or leave without pay. When an employee is not able to
work and is not willing or able to use paid leave or time off, the
agency must place the employee in an appropriate type of nonpay status.
Sec. 630.1405--Administration of Administrative Leave
Section 630.1405(a) provides that the minimum charge increment
(fraction of an hour) for administrative leave is the same as the
agency uses for annual and sick leave.
Section 630.1405(b) states that administrative leave may be granted
only for hours within an employee's tour of duty established for the
purposes of charging annual and sick leave, which for full-time
employees is either the 40-hour basic workweek, the basic work
requirement for employees on a flexible or compressed work schedule, or
an uncommon tour of duty pursuant to Sec. 630.210.
Section 630.1405(c) states that agencies may authorize or require
administrative leave for a single employee or a category of employees.
It also notes that employees do not have an entitlement to
administrative leave and, in particular, are not entitled to receive
the full calendar year limit each year. Employees receive only the
amount of administrative leave granted by the agency, which may be less
(but can never be more) than the calendar year limit. This paragraph
also notes that employees do not have a right to refuse administrative
leave when the agency requires its use.
Sec. 630.1406--Records and Reporting
This section provides the recordkeeping and reporting requirements
regarding administrative leave. Paragraph (a) requires agencies to
accurately record use of administrative leave for each employee under
two categories--administrative leave used for the purposes of an
investigation and administrative leave used for all other purposes.
Paragraph (b) requires that agency data systems and data reports
submitted to OPM record administrative leave authorized under 5 U.S.C.
6329a and subpart N of these regulations separately from other types of
leave and in the two categories noted above. This section also states
that agencies must provide information on the granting of
administrative leave to the Government Accountability Office as that
office requires.
Sec. 630.1407--Separation or Transfer
Under Sec. 630.1407, agencies must certify, in a manner prescribed
by OPM, the number of hours used by an employee in the two
administrative leave categories during the current calendar year when
the employee transfers to another agency or separates. The employee
does not receive a new calendar year limitation upon (1) transfer to
another agency or (2) reemployment by a covered agency after a
separation within the same calendar year. Thus, the gaining agency must
apply the hours reported by the losing agency to the employee's current
calendar year limitation.
Subpart O--Investigative Leave and Notice Leave
Sec. 630.1501--Purpose and Applicability
Section 630.1501(a) states the purpose of subpart O--i.e., to
implement 5 U.S.C. 6329b, which allows an agency to provide a separate
type of paid leave for employees who are the subject of an
investigation or in a notice period. These two new categories are to be
known as ``investigative leave'' and ``notice leave.'' Section
630.1501(a) notes that OPM has authority to prescribe implementing
regulations under 5 U.S.C. 6329b(h)(1).
Section 630.1501(b) states this subpart applies to an employee as
defined in 5 U.S.C. 2105 who is employed in an agency, excluding an
Inspector General or an intermittent employee who, by definition, does
not have an established regular tour of duty during the administrative
workweek. This subpart does not apply to employees who are exempt from
5 U.S.C. chapter 63, such as employees of the Federal Aviation
Administration (FAA) and Transportation Security Administration (TSA)
employees. (Specific laws in title 49 provide that most title 5
provisions, including chapter 63, do not apply to
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FAA and TSA employees. See 49 U.S.C. 114(n) and 40122(g)(2).)
Section 630.1501(c) explains this subpart applies to certain
employees covered by a special personnel authority in title 38, United
States Code, even though that authority would normally allow those
employees to be exempted from title 5 leave provisions.
Sec. 630.1502--Definitions
Section 630.1502 provides definitions of various terms. The
definitions align with definitions found in the law. Explanations
regarding certain definitions are provided below.
We are defining the term investigation to mean an inquiry regarding
an employee. Examples of an inquiry may include: (1) An employee's
alleged misconduct that could result in an adverse action as described
in 5 CFR part 752 or similar authority; (2) security concerns,
including (but not limited to) whether the employee should retain
eligibility for logical access to agency facilities and systems under
the standards established by Homeland Security Presidential Directive
(HSPD) 12 and guidance issued pursuant to that directive; or (3) other
matters that could lead to disciplinary action.
We are defining the term investigative entity consistent with the
statutory definition in 5 U.S.C. 6329b(a)(6); however, we are adding
language to make clear that an internal investigative unit may be
composed of one or more persons, such as supervisors, managers, human
resources practitioners, personnel security office staff, workplace
violence prevention team members, or other agency representatives.
In the definition of the term notice period, we have clarified when
the notice period ends. For an employee with respect to whom an adverse
action is being taken, the notice period ends on the effective date of
the adverse action. For an employee for whom an adverse action is not
being taken, the notice period ends on the date on which the agency
notifies the employee that no adverse action will be taken.
We are providing a definition of participating in a telework
program, which term is used in Sec. 630.1503(c)(1)(iii). An employee
is considered to be participating in a telework program if the employee
is eligible to telework and has an established arrangement with his or
her agency under which the employee is approved to participate in the
agency telework program, including on a routine or situational basis.
Thus, an employee who teleworks on a situational basis is considered to
be continuously participating in a telework program even if there are
extended periods during which the employee does not perform telework.
We are providing a definition of telework site, which is defined as
a location where an employee is authorized to perform telework as
described in 5 U.S.C. chapter 65, such as an employee's home.
Sec. 630.1503--Authority and Requirements for Investigative Leave and
Notice Leave
Separate from the administrative leave authorized by 5 U.S.C. 6329a
and subpart N, new Sec. 630.1503 establishes two new forms of paid
leave on which agencies may place employees who are under investigation
or who have received a notice of a proposed adverse action. These two
new categories are to be known as ``investigative leave'' under Sec.
630.1503(a)(1) and ``notice leave'' under Sec. 630.1503(a)(2).
Investigative leave and notice leave are not employee entitlements.
Instead they are intended to provide the employing agency with the
means of removing an employee from the workplace and keeping the
employee away from the workplace while the agency investigates the
employee or during the notice period of a proposed adverse action
against that employee (or both). The default situation should be that
an employee who is being investigated or against whom an adverse action
has been proposed will remain in a duty status in his or her regular
position during the investigation or notice period. Investigative leave
or notice leave should be applied only when the agency makes the
required determination that the employee must be removed from the
workplace during a period of investigation or during a notice period in
order to protect agency facilities or systems, the Federal workforce,
or the public from harm. In these circumstances, after the required
consideration of other options, an agency may place an employee on
investigative leave or notice leave. An agency may also consider
requiring an employee who is otherwise telework-eligible and who is
currently (or recently) participating in the agency telework program to
telework from home or another approved location as an alternative to
investigative leave. (Any such assessment, however, will need to take
into account whether the employee should retain eligibility for logical
access to agency systems under the standards established by Homeland
Security Presidential Directive (HSPD) 12 and guidance issued pursuant
to that directive).
Section 630.1503(a)(1) states one of the conditions that must be
met before an employee may be placed on investigative leave--namely,
that the employee is ``the subject of an investigation.''
Section 630.1503(a)(2)(i) authorizes notice leave when an employee
is in a notice period. An employee who has not received an advance
notice of proposed adverse action under 5 CFR chapter 752 may not be
provided notice leave. Section 630.1503(a)(2)(ii) authorizes notice
leave, following a placement of an employee on investigative leave,
which may be provided after the last day of the period of investigative
leave if the agency proposes an adverse action against the employee
under 5 CFR chapter 752 or similar authority. This means investigative
leave and notice leave may be used consecutively in some instances.
Agencies should be mindful, however, of any internal procedures related
to the preparation and approval of a proposed adverse action before it
is issued. If the agency determines that the employee continues to meet
the criteria of Sec. 630.1503(b)(1) and one or more of the options in
Sec. 630.1503(b)(2) is not appropriate, the agency may not transition
the employee from investigative leave to notice leave until such time
as it has issued the notice of proposed adverse action.
Section 630.1503(b) sets forth the limited circumstances under
which an agency may place an employee on investigative leave or notice
leave, consistent with the statutory requirements in 5 U.S.C.
6329b(b)(2). First, as provided in paragraph (b)(1), the agency has to
make a determination that the continued presence of the employee in the
workplace while under investigation or in a notice period may pose a
threat to the employee or others, result in the destruction of evidence
relevant to an investigation, result in loss or damage to Government
property, or otherwise jeopardize legitimate Government interests. (See
5 U.S.C. 6329b(b)(2)(A).) This determination is accomplished through an
assessment of baseline factors.
Second, as provided in paragraph (b)(2), the agency must consider
required options instead of the use of investigative leave or notice
leave.
The baseline factors referenced in Sec. 630.1503(b)(1) are
identified in Sec. 630.1503(e), but are described at this point in the
section-by-section review of the regulations given their essentiality
in making a determination under paragraph (b)(1) regarding whether an
employee's continued presence in the
[[Page 32268]]
workplace is appropriate. Under 5 U.S.C. 6329b(h)(1)(C), OPM is
required to prescribe regulations regarding baseline factors. The
baseline factors the agency must consider when making a determination
under paragraph (b)(1) are: (1) The nature and severity of the
employee's exhibited or alleged behavior, (2) the nature of the
agency's or employee's work and the ability of the agency to accomplish
its mission, and (3) other impacts of the employee's continued presence
in the workplace detrimental to legitimate Government interests,
including (but not limited to) whether the employee will pose an
unacceptable risk to (i) the life, safety, or health of employees,
contractors, vendors or visitors to a Federal facility; (ii) the
Government's physical assets or information systems; (iii) personal
property; (iv) records, including classified, privileged, proprietary,
financial or medical records; or (v) the privacy of the individuals
whose data the Government holds in its systems.
The baseline factors are to be used as a starting point when
determining whether an employee should be placed on investigative leave
or notice leave. Each baseline factor should be considered. Agencies
should exercise independent, reasonable judgment in evaluating each
particular situation. Agencies should consult with their human
resources office or their general counsel, or both, to the extent
appropriate, before placing an employee on investigative leave or
notice leave.
Nature and severity of the employee's exhibited or alleged
behavior.
An agency may determine investigative leave and/or notice leave is
necessary because of the nature and severity of the employee's
exhibited or alleged behavior. The behavior could be the basis for the
investigation and/or be the reason for the proposed adverse action. In
some cases, however, the behavior may be exhibited during or following
an investigation or proposed adverse action. The nature and severity of
the behavior may be in the form of danger to the employee or others, or
to Government networks, systems, or property.
Examples of possible threats include direct or veiled threats of
harm, belligerence, harassing, bullying, or other inappropriate and
aggressive behavior. The employee may have made statements and/or
engaged in behaviors that have intimidated other employees or
management may have determined that statements or behaviors, because of
their disturbing nature, have disrupted the workplace. The behavior may
be directed at another individual or may involve physical damage to or
destruction of Government property or the misuse of agency systems or
the data they contain; it could also involve a plan to commit, threat
to commit, or attempt to commit such conduct. Examples include but are
not limited to assaulting a co-worker, supervisor, or agency client;
menacing conduct, such as destruction of furniture or other action that
puts another individual in reasonable fear of immediate bodily injury.
The nature and severity of the employee's exhibited or alleged behavior
may involve agency computer systems and other technologies, as well as
data handling and access. Examples could include attempting to gain or
actually obtaining unauthorized access to systems disbursing money or
to classified information. When appropriate, agencies should work
closely with their information systems management and/or cyber security
advisors to identify patterns of behavior that may indicate the
potential for malicious activity on information systems. The agency
should identify any relationship between the perceived threat and the
technology that may be vulnerable. These considerations relate to the
agency's responsibility to determine internal security practices, which
includes developing policies and practices designed to safeguard
personnel, property or operations, as well as developing a plan to
prevent damage to or loss of agency property.
Nature of the work and the ability of the agency to
accomplish its mission.
In determining whether to place an employee on investigative leave
and/or notice leave, it is important to consider the relationship
between the employee's behavior and his or her ability to perform work
successfully and without unreasonable risk to the agency during the
investigation or notice period and accomplish his or her duties
satisfactorily. Among the considerations would be the nature of the
employee's duties, the employee's job level, and/or whether the
employee has a supervisory or fiduciary role. An employee's contact
with the public and the prominence of his or her position are
additional considerations that an agency may evaluate in relationship
with the alleged misconduct.
Other impacts detrimental to legitimate Government
interests, including whether the employee will pose an unacceptable
risk to (1) the life, safety, or health of employees, contractors,
vendors or visitors to a Federal facility; (2) the Government's
physical assets or information systems; (3) personal property; (4)
records, including classified, privileged, proprietary, financial or
medical records; or (5) the privacy of the individuals whose data the
Government holds in its systems.
This factor represents a broad category that agencies may apply
given their individual missions. This could include a range of
workplace behaviors and actions that could impede the normal course of
work, or have a harmful effect on the safety and order of the
workplace. Possible aspects the agency may wish to review in this
regard include the extent to which the employee's presence in the
workplace or access to agency systems may impair or disrupt agency
operations, place systems at risk, harm public confidence in the
agency, or otherwise have a detrimental impact on legitimate Government
interests. It is advisable for agencies to consult with their legal
counsel to determine what situations and circumstances would be
detrimental to legitimate Government interests in light of other
authorities such as HSPD 12. Differences in agency mission or agency
practice, or other internal regulations, may affect this determination.
When considering these baseline factors, agencies should evaluate
the duration of the risk; the nature and severity of the potential
harm; how likely it is that the potential harm will occur; and how
imminent the potential harm is. The agency may not arbitrarily place
individuals on investigative leave or notice leave based upon fear of a
future risk without engaging in an individualized assessment that
establishes that there is a significant risk of substantial harm that
cannot be eliminated or reduced by other means.
Section 630.1503(b)(2) requires that the agency consider other
options where appropriate to minimize the amount of investigative leave
or notice leave provided to an employee, consistent with 5 U.S.C.
6329b(b)(2)(B). Thus, if the agency makes a determination that the
continued presence of the employee in the workplace during an
investigation of the employee or while the employee is in a notice
period meets the criteria of Sec. 630.1503(b)(1), the agency must also
consider certain options before placing the employee on investigative
leave or notice leave. The options that must be considered are: (1)
Assigning the employee to duties in which the employee is no longer a
threat, (2) allowing the employee to voluntarily take another type of
leave, (3) carrying the employee in absent without leave status if the
employee is absent from duty without approval, and (4) curtailing the
notice period, consistent with chapter 75 of title 5 of the U.S.
[[Page 32269]]
Code and OPM regulations thereunder. The agency may elect to implement
one or a combination of these options. Consideration of these options
is consistent with adverse action procedures in 5 CFR 752.404(b)(3).
An agency needs to assess whether one or more of the options
required to be considered is or are appropriate, and, if so, which is
the most appropriate to address concerns about the continued presence
of the employee in the workplace and to resolve the safety or security
issue(s) presented by the employee. The manager should work closely
with the agency's human resources advisors during the process of
reviewing the options for consideration. The agency must determine that
none of the options is appropriate before placing an employee on
investigative leave or notice leave. In addition, agencies may require
an employee who is telework-eligible--and has, in fact, been
teleworking from home or another approved location--to telework as an
alternative to placing the employee on investigative leave if telework
will adequately reduce or eliminate the potential for harm.
Section 630.1503(b)(2)(i) sets forth the option of keeping the
employee in a duty status by assigning the employee to duties in which
the employee does not pose a threat. The duties should be at the same
grade level as the employee's current position. The change in duties
may also involve a change in the location where the employee works,
subject to limitations related to the local commuting area. In
considering this alternative in lieu of investigative leave, an agency
may consider requiring an employee who participates in a telework
program to perform duties from a telework site, as provided in Sec.
630.1503(c). Assigning the employee to other duties (such as a detail
assignment) or limiting the employee's access to intranet systems may
enable the agency to maintain the safety and security of the workplace
while continuing to benefit from the employee's skillset and abilities
to further the agency's mission.
Section 630.1503(b)(2)(ii) sets forth the option of allowing the
employee to voluntarily take leave (paid or unpaid) or other forms of
paid time off, as appropriate under the rules governing each category
of leave or paid time off. An employee who is under investigation or in
a notice period may elect to take annual leave, sick leave (as
appropriate), restored annual leave, or any leave earned under
subchapter I of chapter 63, of the United States Code. The employee may
also elect to use other paid time off in order to remain in a pay
status, including paid time off that is about to expire, such as
compensatory time off earned through overtime work, compensatory time
off for travel, and credit hours under a flexible work schedule, as
appropriate. An employee may elect to take leave or other paid time off
for which the employee is eligible on an intermittent basis, as
appropriate, during a period of investigative leave or notice leave.
Agencies may not require employees to take accrued leave or other
time off as a substitute for investigative leave or notice leave, and
may deny employee requests to use advanced leave.
Section 630.1503(b)(2)(iii) sets forth the option of carrying the
employee in an absent without leave (AWOL) status, if the employee is
absent from duty without approval. If the employee returns to a duty
status, the AWOL would end. The agency could then place the employee on
investigative leave or notice leave, as appropriate, only after the
agency has analyzed the remaining considerations discussed in this
section.
Section 630.1503(b)(2)(iv) sets forth the option of curtailing an
employee's notice period if there is reasonable cause to believe the
employee has committed a crime for which a sentence of imprisonment may
be imposed. Under 5 CFR 752.404(d), this same option of curtailing the
notice period is provided as an exception to the requirement for a 30
days' advance written notice period. Thus, this exception would shorten
the length of the notice period, but the notice period would still not
end until the adverse action is effectuated or until the employee is
notified that no adverse action will be taken.
Section 630.1503(c) regulates that an agency may require an
employee who is already a participant in the agency telework program,
to perform duties similar to the duties that the employee performs at
the normal worksite through telework as an alternative to placing an
employee on investigative leave. This option to require telework is
consistent with 5 U.S.C. 6502(c). (Section 6502(c) expressly links to
the investigative leave law in 5 U.S.C. 6329b.
Section 6329b also includes references to section 6502(c) in
subsections (d)(1)(E) and (f)(1)(F). Thus, OPM is incorporating
provisions that implement the section 6502(c) requirements as part of
its regulations of section 6329b.) An agency may require an employee to
perform telework if the requirement for the employee to telework would
not pose a threat to the employee or others, result in the destruction
of evidence relevant to an investigation, result in loss of or damage
to Government property, or otherwise jeopardize legitimate Government
interests. Furthermore, the agency must determine that (1) the employee
is eligible to telework under the eligibility conditions found in 5
U.S.C. 6502(a) and (b) and (2) and is actually participating in the
agency telework program and it would be appropriate for the employee to
perform his or her duties through telework.
Under subsection (c) of 5 U.S.C. 6502, an agency may require
telework in lieu of investigative leave if the employee is ``eligible
to telework under subsections (a) and (b)'' of that section.
Section 6502(a) is titled ``Telework Eligibility'' and requires
agencies to establish policies related to telework eligibility, subject
to certain limitations in section 6502(a)(2). Section 6502(b) is titled
``Participation,'' but includes eligibility conditions in paragraph
(b)(4). Paragraph (b)(4) states that, except in emergency conditions,
telework shall not apply to any employee whose official duties require
on a daily basis (every workday) (1) direct handling of secure
materials that are inappropriate for telework or (2) on-site activity
that cannot be handled at another location. OPM considers the
requirement in section 6502(b)(2) to have a written telework agreement
to be a procedural requirement related to participation, not an
eligibility requirement.
However, based on our understanding of the intent of Congress, we
are regulating that the authority to require telework under section
6502(c) applies only to an employee who has been a participant in the
telework program during any portion of the 30-day period immediately
preceding the commencement of investigative leave (or the commencement
of required telework in lieu of the commencement of such leave). Any
existing telework agreement will be superseded as necessary in order to
comply with an agency's action to require telework under section
6502(c) and Sec. 630.1503(c).
An agency requiring an employee to perform duties through telework
is obligated to provide the employee appropriate work assignments and
equipment. An agency may determine it is not appropriate for the
employee to telework because it would require the employee to access
agency files or to contact agency personnel, directly handle secure
materials, or perform official duties that cannot be performed at an
alternative worksite.
An employee who is required to telework should be issued a
notification indicating that he or she is being directed to telework,
and the
[[Page 32270]]
notification should clarify that any telework agreement is superseded
as necessary. Further, the notification should identify expectations
and requirements during the period of required telework.
A telework-eligible employee required by an agency to telework
under these conditions may be granted leave or other paid time off, as
appropriate. An employee who refuses to telework when required by the
agency under these conditions and is absent from telework duty without
approval may be placed in AWOL status, consistent with agency policies.
Section 630.1503(d)(1) authorizes an agency to return an employee
to duty at any time if the agency reassesses its determination to place
the employee on investigative leave or notice leave. It also provides
that an employee on investigative leave or notice leave must be
prepared to report to work at any time during the employee's regularly
scheduled tour of duty or must obtain approval of leave to eliminate
the possible obligation to report to work if the employee believes that
he or she would be unable to report promptly if called. While
investigative leave is approved in increments of up to 30 workdays (see
Sec. 550.1504(b), (f), and (g)), an employee may be required to return
to duty before an employee has reached the applicable 30-workday limit.
Section 630.1503(d)(2) applies to an employee on investigative
leave. An agency may reassess its determination that the employee must
be removed from the workplace based on the criteria in Sec.
630.1503(b)(1) and its determination that the options in Sec.
630.1503(b)(2) of this section are not appropriate. An agency may also
reassess its previous determination to require or not require telework
under paragraph (c) of this section.
Section 630.1503(d)(3) applies to an employee on notice leave. An
agency may reassess its determination that the employee must be removed
from the workplace based on the criteria in Sec. 630.1503(b)(1) and
its determination that the options in Sec. 630.1503(b)(2) of this
section are not appropriate.
Section 630.1503(d)(4) provides that, while an employee is on
investigative leave or notice leave, the employee has an obligation to
report promptly to an approved duty location if directed by his or her
supervisor. Any failure to so report may be recorded as absent without
leave, which can lead to disciplinary action. An employee who
anticipates that he or she may be unavailable to report to duty
promptly must request scheduled leave or paid time off in advance, in
lieu of investigative leave. Given these regulatory requirements, an
agency may consider adding language regarding these requirements in the
notification regarding the employee's placement on investigative leave.
Section 630.1503(e) describes the baseline factors to be used in
making a determination under Sec. 630.1503(b)(1). (See the detailed
description of those factors under the discussion of Sec.
630.1503(b)(1) above.)
Section 630.1503(f) provides that agencies must use the same
minimum charge increments for investigative and notice leave as it does
for annual and sick leave under Sec. 630.206.
Sec. 630.1504--Administration of Investigative Leave
Section 630.1504 explains that an employee under investigation will
remain in a duty status, except when the agency determines that the
employee's continued presence in the workplace meets the criteria
described in Sec. 630.1503(b)(1) and that none of the options under
Sec. 603.1503(b)(2) are appropriate.
Section 630.1504(a) explains that investigative leave may not
commence until the employee's use of administrative leave under subpart
N has reached the 10-workday calendar year limitation described in 5
U.S.C. 6329a(b)(1) and Sec. 630.1404, as converted to hours under
Sec. 630.1404(b), and the agency determines that further investigation
of the employee is necessary. The agency may conduct its investigation
during the period of administrative leave provided under subpart N.
The limitation of 10 workdays of administrative leave under subpart
N is a calendar year aggregate limit. If the 10-workday limit is
reached in the calendar year in which the employee is placed on
investigative leave, the period of investigative leave may continue
into the next calendar year without the employee having to exhaust the
10 workdays of administrative leave permitted for use in the next
calendar year. In other words, once triggered and commenced,
investigative leave would continue as long as permitted without needing
to again meet the requirement to exhaust 10-workday limit on
administrative leave in a later calendar year. Agencies are expected to
expeditiously work to resolve investigations so that the employee can
return to duty or the agency can initiate an appropriate personnel
action. If an agency determines that continued investigation of the
employee is necessary after the 10-workday limitation of administrative
leave has been reached, it must follow the procedures outlined in Sec.
630.1503(b)--i.e., threat determination and consideration of options--
before placing the employee on investigative leave for up to 30
workdays.
Section 630.1504(b) provides that an agency may place the employee
in an initial period of investigative leave under Sec. 630.1503(a)(1)
for a period of not more than 30 workdays. An employee may be placed on
investigative leave intermittently. In other words, a period of
investigative leave may be interrupted by (1) on-duty service performed
under paragraph (b)(2)(i) or (c) of Sec. 630.1503, (2) leave or paid
time off in lieu of such service under paragraph (b)(2)(ii) of Sec.
630.1503, or (3) AWOL under paragraph (b)(2)(iii) of Sec. 630.1503.
Section 630.1504(c) requires an agency to provide an employee a
written explanation of his or her placement on investigative leave. The
written explanation must describe the limitations on the leave
placement, including the limitation on the duration of the
investigative leave, and include notice that, at the conclusion of the
period of investigative leave, the agency must take an action under
Sec. 630.1504(d). Furthermore, the agency must include notice that
placement on investigative leave for 70 workdays or more is considered
a ``personnel action'' in applying the prohibited personnel practices
provisions at 5 U.S.C. 2302(b)(8)-(9).
Section 630.1504(d) provides that, not later than the day after the
last day of an initial or extended period of investigative leave, an
agency must take action to return the employee to regular duty status,
take one or more of the actions under Sec. 630.1503(b)(2), propose an
adverse action against the employee as provided under law, or extend
the period of investigative leave under Sec. 630.1504(f) and (g). The
requirement for agencies to take action at the conclusion of the period
of investigative leave holds agencies accountable for the amount of
paid leave provided to an employee under investigation for alleged
misconduct and prevents situations where employees remain on paid leave
for long periods of time without active investigation.
Section 630.1504(e) states that an investigation of an employee may
continue after the expiration of the initial 30-workday period of
investigative leave. Many factors and variables can require longer than
30 workdays for an agency to conduct an investigation, including but
not limited to the nature and complexity of the
[[Page 32271]]
issue(s), the number of witnesses, the availability of witnesses, and
the coordination with other offices who have relevant evidence. If an
agency requires more than 30 workdays to conduct its investigation, an
extension may be approved by an authorized official. An employee under
investigation is not required to be placed on investigative leave;
therefore, the investigation may continue even if the employee is
returned to regular duty status and is no longer on investigative
leave. An agency may extend the period of investigative leave after the
initial 30-workday period of investigative leave ends by following the
procedures outlined in Sec. 630.1504(f) and (g).
Section 630.1504(f)(1) allows an agency to extend the period of
investigative leave for the employee--using increments of 30 workdays
for each extension--when approved by the appropriate agency official
upon determination that further time is required to conduct a full and
fair investigation. It is conceivable that some investigations will be
more involved and complex than others and require more than a 30-
workday period of investigation; therefore, agencies must have the
ability to extend an employee's period of investigative leave.
Section 630.1504(f)(2) provides that the total period of the
extension of investigative leave under Sec. 630.1504(f) may not exceed
90 workdays, which translates into 3 incremental extensions of 30
workdays. This 90-day limit applies to extensions of investigative
leave associated with a single initial period of investigative leave.
In practice, this means that an employee must first exhaust his or her
10 workdays of administrative leave under 5 U.S.C. 6329a, before the
agency may provide an initial period of investigative leave for 30
workdays under Sec. 630.1503(a)(1). If there is a continued need to
keep the employee on investigative leave, an authorized official may
approve extension of investigative leave in increments of 30 workdays,
not to exceed a total 90 workdays for the extensions under Sec.
630.1504(f).
Section 630.1504(f)(3)(i) permits an incremental 30-workday
extension under paragraph (f)(1) only if the agency makes a written
determination reaffirming that the employee must be removed from the
workplace based on the criteria in Sec. 630.1503(b)(1) and that the
options in Sec. 630.1503(b)(2) are not appropriate. In other words,
the same criteria used for an initial placement on investigative leave
must be used in approving any extension.
Section 630.1504(f)(3)(ii) provides that an incremental extension
of investigative leave under paragraph (f)(1) of this section is
permitted only if approved by the Chief Human Capital Officer (CHCO) of
an agency (i.e., a CHCO designated or appointed under 5 U.S.C. 1401, or
an equivalent officer), or the designee of the CHCO, after consulting
with the investigator responsible for conducting the investigation of
the employee. The CHCO approval provides fairness, transparency, and
accountability while allowing agency management to be actively involved
in the decision to extend investigative leave. Agencies will be
responsible for identifying the factors the CHCO or designee must
consider in granting an extension of investigative leave and reflecting
those considerations in the agency's internal policies. Requests for
extensions of investigative leave should be used sparingly (e.g., to
accommodate complex investigative processes), and the CHCO or designee
must act in a timely manner on such requests for an extension. Agencies
should not submit automatic requests for extensions.
Section 630.1504(f)(3)(iii) provides that, in the case of an
employee of an Office of Inspector General, an incremental extension
under Sec. 630.1504(f)(1) is permitted only if approved by the
Inspector General or designee (rather than the CHCO or designee) after
consulting with the investigator responsible for conducting the
investigation of the employee. However, as an alternative, the
Inspector General may request that the head of the agency designate an
official of the agency within which the Office of Inspector General is
located to approve an extension of investigative leave for employees in
that office.
Section 630.1504(f)(4) requires that in delegating authority to a
designated official to approve an incremental extension as described in
Sec. 630.1504(f)(3) of this section, an agency must pay heed to the
designation guidance issued by the CHCO Council under 5 U.S.C.
6329b(c)(3), except that, in the case of approvals for an employee of
an Office of Inspector General (OIG), an agency must pay heed to the
designation guidance issued by the Council of the Inspectors General on
Integrity and Efficiency under 5 U.S.C. 6329b(c)(4)(B). Adherence to
this designation guidance ensures that the designee authorized to
approve an extension of investigative leave is at a sufficiently high
level within the OIG or the agency, as applicable, to make an impartial
and independent determination regarding the extension. Agencies should
be aware, however, that this involvement could potentially disqualify
the individual from serving as the deciding official in any subsequent
adverse action.
Section 630.1504(g) provides that after reaching the maximum number
of extensions of investigative leave under Sec. 630.1504(f), an
official authorized to approve an extension under Sec. 630.1504(f)(3)
may approve further incremental extensions of investigative leave for
periods of 30 workdays for each extension. Those approvals must be
based on the same criteria used to approve the initial period of
investigative leave and the extensions under Sec. 630.1504(f). While
agencies must be allowed to take the time needed to conduct a full and
fair investigation of the employee, agencies are not permitted to keep
an employee on investigative leave indefinitely. Therefore, not later
than 5 business days after granting each further extension of
investigative leave, the agency must submit a report documenting the
further extension of investigative leave 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, along
with any other committees of jurisdiction.
The agency report must contain: (1) The title, position, office or
agency subcomponent, job series, pay grade, and salary of the employee;
(2) a description of the duties of the employee; (3) the reason the
employee was placed on investigative leave; (4) an explanation as to
why the employee meets the criteria described in Sec. 630.1503(b)(1)
and why the agency is not able to temporarily reassign the employee to
different duties within the agency under Sec. 630.1503(b)(2); (5) in
the case of an employee required to telework under 5 U.S.C. 6502(c)
during the investigation, the reasons that the agency required the
employee to telework and the duration of the teleworking requirement;
(6) the status of the investigation of the employee; (7) the
certification by an investigative entity that additional time is needed
to complete the investigation of the employee and an estimate of the
amount of time that is necessary to complete the investigation of the
employee; and (8) in the case of a completed investigation of the
employee, the results of the investigation and the reason the employee
remains on investigative leave. While not required to be included in
the report, agencies should be prepared to explain their decision not
to require a telework-eligible employee to telework during the period
of investigation.
[[Page 32272]]
Section 630.1504(h) provides an agency may not further extend a
period of investigative leave of an employee on or after the date that
is 30 calendar days after the completion of the investigation of the
employee by an investigative entity. After investigative leave is
ended, the agency must take action under Sec. 630.1504(d).
Section 630.1504(i) explains that, pursuant to new 5 U.S.C.
6329b(g), and for purposes of 5 U.S.C. chapter 12, subchapter II, and
section 1221, and recourse to the Office of Special Counsel, placement
on investigative leave under this subpart for a period of 70 workdays
or more shall be considered a personnel action in applying the
prohibited personnel practices provisions at 5 U.S.C. 2302(b)(8) or
(9). Previously, an employee had no means to contest an agency decision
to place him or her on administrative leave for a reason proscribed at
5 U.S.C. 2302(b)(8) or (9), given that the employee continued to
receive pay. This provision provides independent review for employees
who have been on investigative leave for at least 70 workdays and who
allege conduct prohibited under 5 U.S.C. 2302(b)(8) or (9). Consistent
with current case law, the placement on investigative leave or notice
leave is not an adverse action.
Section 630.1504(j) explains the conversion of workdays to hours
applicable in this subpart. The limitations based on workdays (i.e.,
the 30-workday increments in paragraphs (b), (f), and (g) of this
section and the 70-workday limit in paragraph (i) of this section) must
be converted to hours, taking into account the different workdays that
can apply to employees under different work schedules.
Section 630.1504(j)(1) applies to a full-time employee (including
an employee on a regular 40-hour basic workweek or a flexible or
compressed work schedule under 5 U.S.C. chapter 61, subchapter II, but
excluding an employee on an uncommon tour of duty). Based on an 8-hour
workday, the 30-workday increment is converted to 240 hours. The 30-
workday increment is the equivalent of 6 calendar weeks of
investigative leave. The 70-workday limit is converted to 560 hours.
Section 630.1504(j)(2) applies to a full-time employee with an
uncommon tour of duty under Sec. 630.210. The 30-workday increment is
converted to three times the number of hours in the biweekly uncommon
tour of duty (or the average biweekly hours for uncommon tours for
which the biweekly hours vary over an established cycle). The 30-
workday increment is the equivalent of 6 calendar weeks of
investigative leave. The 70-workday limit is converted to a number of
hours derived by multiplying the hours equivalent of 30 workdays (for a
given uncommon tour) times the ratio of 70 divided by 30.
Section 630.1504(j)(3) applies to a part-time employee. The
calendar year limit is prorated based on the number of hours in the
officially scheduled part-time tour of duty established for purposes of
charging leave when absent (e.g., for a part-time employee who has an
officially scheduled half-time tour of 40 hours in a biweekly pay
period, the 30-workday increment is converted to 120 hours, which is
half of 240 hours (the 30-workday increment for full-time employees)).
The proration is consistent with the proration of annual and sick leave
required under 5 U.S.C. 6302(c).
Sec. 630.1505--Administration of Notice Leave
Section 630.1505(a) provides that notice leave may commence only
after an employee has received written notice of a proposed adverse
action. There is no requirement that the employee exhaust his or her 10
workdays of administrative leave under 5 U.S.C. 6329a(b) and Sec.
630.1405 before the employee may be placed on notice leave.
Section 630.1505(b) provides that the placement of an employee on
notice leave shall be for a period not longer than the duration of the
notice period.
Section 630.1505(c) provides that, if an agency places an employee
on notice leave, the agency must provide the employee a written
explanation regarding the placement of the employee on notice leave.
The written explanation must provide information on the employee's
notice period and include a statement that the notice leave will be
provided only during the notice period.
Sec. 630.1506--Records and Reporting
Section 630.1506(a) requires an agency to maintain an accurate
record of the placement of an employee on investigative leave or notice
leave by the agency. The specific information that must be kept in
agency records is identified, consistent with the requirements in 5
U.S.C. 6329b(f). OPM may add additional recordkeeping requirements as
it deems appropriate.
Section 630.1506(b)(1) requires an agency to make a record kept
under Sec. 630.1506(a) available, upon request, to any committee of
jurisdiction, to OPM, to the Government Accountability Office, and as
otherwise required by law. However, Sec. 630.1506(b)(2) provides that
any action to make a record available is subject to other applicable
laws, Executive orders, and regulations governing the dissemination of
sensitive information related to national security, foreign relations,
or law enforcement matters.
Section 630.1506(c)(1) requires agencies to properly record the
granting of investigative leave and notice leave. In agency data
systems and in data reports submitted to OPM, an agency must record
investigative leave and notice leave under 5 U.S.C. 6329b and this
subpart as categories of leave separate from other types of leave. The
leave must be recorded as either investigative leave or notice leave,
as applicable.
GAO found in its 2014 report that agency policies on paid
administrative leave differ across agencies, including the way agencies
record paid administrative leave. These proposed regulations provide
clear guidance on the use of administrative leave, which, in turn, will
promote more consistent recording and documentation of various
categories of administrative leave. In order to accurately measure the
use of paid administrative leave across Federal agencies, agencies must
have a consistent method of documenting the use of administrative
leave. Specifically, agencies must properly record administrative leave
and distinguish it from leave that is otherwise authorized by other
statutory provisions, such as military leave, bone marrow/organ donor
leave, and court leave. Without proper recording of leave taken, it is
difficult to determine how much administrative leave is actually being
used and to hold agencies accountable for its use.
Therefore, for recording purposes, OPM is creating two new
categories to record leave granted under 5 U.S.C. 6329b: (1)
Investigative leave and (2) notice leave. Investigative leave and
notice leave must be recorded on an hourly basis (i.e., hours or
fractions of an hour), not to exceed the limitations outlined in Sec.
630.1504.
Section 630.1506(c)(2) requires agencies to provide information to
the Government Accountability Office as that office requires in order
to submit reports to specified Congressional committees required under
section 1138(d)(2) of Public Law 114-328. These reports must be
submitted not later than 5 years after December 23, 2016, and every 5
years thereafter.
Subpart P--Weather and Safety Leave
Sec. 630.1601--Purpose and Applicability
Section 630.1601(a) addresses the purpose of the proposed
regulations on
[[Page 32273]]
weather and safety leave--i.e., to implement 5 U.S.C. 6329c, which
created a new category of paid leave that applies when weather and
safety conditions prevent employees from safely traveling to or safely
performing work at an approved location due to an act of God, a
terrorist attack or other applicable conditions. Unlike the previous
administrative leave used for weather-related incidents, OPM now has
the authority to prescribe regulations to carry out the new statutory
provisions, including the appropriate uses and the proper recording of
weather and safety leave. Additionally, Sec. 630.1601(b) provides that
subpart P applies to employees, as defined at 5 U.S.C. 2105, who are
employed in executive branch agencies, but does not apply to
intermittent employees.
Sec. 630.1602--Definitions
Section 630.1602 provides definitions of various terms used in
subpart P. The definitions align with the definitions found in the law.
The statute at 5 U.S.C. 6329c(b)(1) uses the term ``act of God.''
We define act of God for purposes of subpart P as an act of nature such
as hurricanes, tornadoes, floods, wildfires, earthquakes, landslides,
snowstorms, and avalanches. While this definition covers only natural
disasters, weather and safety leave may also be authorized for other
conditions that prevent employees from safely traveling to or safely
performing work at an approved location (for example, agency-specific
emergencies such as a building fire, power outage, or burst water
pipes).
The statute at 5 U.S.C. 6329c(a)(1) defines ``agency'' as an
Executive agency of the Federal Government as described in 5 U.S.C.
105, including the Department of Veterans Affairs, but excluding the
Government Accountability Office. The definition of agency in Sec.
630.1602 follows the statutory definition except that we did not note
the inclusion of the Department of Veterans Affairs since that agency
is already included by way of 5 U.S.C. 105. We also state that when
``agency'' is used in the context of an agency making determinations or
taking actions, it means the agency head or management officials who
are authorized (including by delegation) to make a given determination
or take a given action.
We define employee as an individual who is covered by subpart P, as
provided in Sec. 630.1601(b) and (c).
We define participating in a telework program to refer to a
telework-eligible employee who has an established arrangement with his
or her agency under which the employee is approved to participate in
the agency telework program, including on a routine or situational
basis. Thus, an employee who teleworks on a situational basis is
considered to be continuously participating in a telework program even
if there are extended periods during which the employee does not
perform telework. This term is used in Sec. 630.1605(a).
We define telework site as a location where an employee is
authorized to perform telework as authorized under 5 U.S.C. chapter 65,
such as an employee's home.
We define weather and safety leave as paid leave provided under the
authority of 5 U.S.C. 6329c and subpart P.
Sec. 630.1603--Authorization
Section 630.1603 addresses the conditions under which an agency may
authorize weather and safety leave--i.e., a severe weather event or
other emergency that prevents an employee from safely traveling to or
safely performing work at an approved work location.
Sec. 630.1604--OPM and Agency Responsibilities
Section 630.1604(a) addresses OPM's responsibility to prescribe
regulations and guidance related to the appropriate use of weather and
safety leave, including guidance on dismissal/closure policies and
procedures related to such leave. Such guidance will deal not only with
when it is appropriate to provide weather and safety leave, but also
when other workplace flexibility options (including other leave,
telework, and flexible work schedules) should be utilized instead of
weather and safety leave. In the past, OPM has issued dismissal/closure
policies and procedures focused on the Washington, DC, area where OPM,
through longstanding practice, has exercised responsibility for issuing
operating status announcements in emergency situations. (This
responsibility involves taking the lead in coordinating with municipal
and regional officials--e.g., National Weather Service, the District of
Columbia, suburban governments, Departments of Transportation, public
transportation providers, public utilities, and law enforcement. This
coordination is designed to avoid dramatic disruptions of the highway
and mass transit systems.) After issuing final regulations on weather
and safety leave, OPM intends to issue Governmentwide guidance on
dismissal/closure policies and procedures to assist agencies in
complying with the weather and safety leave regulations and to promote
the use of consistent terminology throughout the Government.
Also, Sec. 630.1604(a) states that when OPM issues any operating
status announcement for the Washington, DC, area, the specific policies
and procedures communicated with that announcement must be consistent
with OPM regulations and Governmentwide guidance on closures and
dismissals.
Section 630.1604(b) describes agency responsibilities to (1)
establish policies and procedures related to weather and safety leave
that are consistent with OPM regulations and guidance and (2) use
terminology required by OPM-issued Governmentwide guidance for any
operating status announcements issued by an agency (for a specific
location).
Sec. 630.1605--Telework and Emergency Employees
Section 630.1605 provides exclusions to the granting of weather and
safety leave when an employee is eligible for and participating in an
agency telework program or is designated as an ``emergency employee.''
Telework employees
Section 630.1605(a)(1) states that agencies may not grant weather
and safety leave to employees who are participating in a telework
program and who are not prevented from safely working at an approved
telework site. This implements the statutory provision at 5 U.S.C.
6329c(b) that prescribes that weather and safety leave may be provided
when employees are prevented from safely traveling to or safely
performing work ``at an [i.e., any] approved location.'' Employees who
are eligible to telework are typically not prevented from performing
work at their approved telework site (e.g., home) because they are not
required to work at their regular worksites. Accordingly, when
employees have the ability to telework, they are not considered to be
prevented from performing work at an approved location. This regulatory
condition for the granting of weather and safety leave is not
contingent on the condition being included in the employee's telework
agreement.
Section 630.1605(a)(2) permits exceptions to the bar on granting
weather/safety leave for teleworkers when, in the agency's judgment,
the employee was not able to prepare for teleworking and is otherwise
not able to perform productive work at the telework site (e.g., due to
lack of portable work or equipment problems). An agency may permit an
exception to the bar on granting weather/safety leave for
[[Page 32274]]
teleworkers when an employee is prepared to telework but is prevented
from safely doing so by conditions applicable to the telework site.
However, the agency may decide not to approve weather and safety leave
to an employee who can safely travel to or safely perform work at a
regular worksite even if it is a scheduled telework day for the
employee.
Section 630.1605(a)(3) requires the agency to evaluate whether the
weather or safety conditions could be reasonably anticipated and
whether the employee took reasonable steps (within the employee's
control) to prepare for telework (such as by bringing any needed
equipment and work home). If the employee failed to make the necessary
preparations, the agency may not grant weather and safety leave. In
this case, the employee's only options would be to use other
appropriate paid leave or paid time off, or leave without pay.
Emergency employees
Section 630.1605(b) provides that agencies may designate emergency
employees as necessary for critical agency operations and for whom the
general granting of weather and safety leave generally does not apply.
Agencies may designate different emergency employees for the various
emergencies that may occur, but should designate these employees well
in advance of the possible emergencies, to the extent practicable.
Emergency employees are expected to report to the agency-designated
worksite unless the agency determines that it is unsafe to do so, in
which case the agency may allow the employee to telework or work at
another location. An agency may also determine that the circumstances
justify granting weather and safety leave to emergency employees.
Sec. 630.1606--Administration of Weather and Safety Leave
Section 630.1606(a) provides that the minimum charge increment for
weather and safety leave is the same as the agency uses for annual and
sick leave.
Section 630.1606(b) states that weather and safety leave may be
granted only for hours within an employee's tour of duty established
for the purposes of charging annual and sick leave, which for full-time
employees is either the 40-hour basic workweek, the basic work
requirement for employees on a flexible or compressed work schedule, or
an uncommon tour of duty under Sec. 630.210.
Section 630.1606(c) states that agencies may not grant weather and
safety leave for hours during which employees are on other preapproved
leave (paid or unpaid) or paid time off. It also provides that an
agency should not approve an employee's request to cancel preapproved
leave or paid time off if the agency determines that the request is
primarily for the purpose of obtaining weather and safety leave.
Sec. 630.1607--Records and Reporting
This section provides the recordkeeping and reporting requirements
regarding weather and safety leave. Agencies are required to keep
accurate records on the number of weather and safety leave hours
granted to employees and to report this data to OPM in the manner
directed.
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it will apply
only to Federal agencies and employees.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Kathleen M. McGettigan,
Acting Director.
For the reasons stated in the preamble, OPM proposes to amend part
630 of title 5 of the Code of Federal Regulations as follows:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 is revised to read as follows:
Authority: Subparts A through E issued under 5 U.S.C. 6133(a)
(read with 5 U.S.C. 6129), 6303(e) and (f), 6304(d)(2), 6306(b),
6308(a) and 6311; subpart F issued under 5 U.S.C. 6305(a) and 6311
and E.O. 11228, 30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G
issued under 5 U.S.C. 6305(c) and 6311; subpart H issued under 5
U.S.C. 6133(a) (read with 5 U.S.C. 6129) and 6326(b); subpart I
issued under 5 U.S.C. 6332, 6334(c), 6336(a)(1) and (d), and 6340;
subpart J issued under 5 U.S.C. 6340, 6363, 6365(d), 6367(e),
6373(a); subpart K issued under 5 U.S.C. 6391(g); subpart L issued
under 5 U.S.C. 6383(f) and 6387; subpart M issued under Sec. 2(d),
Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329 note); subpart N issued
under 5 U.S.C. 6329a(c); subpart O issued under 5 U.S.C. 6329b(h);
and subpart P issued under 5 U.S.C. 6329c(d).
Subpart B--Definitions and General Provisions for Annual and Sick
Leave
Sec. 630.206 [Amended]
0
2. In Sec. 630.206, remove the second sentence in paragraph (a).
0
3. Subpart N is added to read as follows:
Subpart N--Administrative Leave
Sec.
630.1401 Purpose and applicability.
630.1402 Definitions.
630.1403 Principles and prohibitions.
630.1404 Calendar year limitation.
630.1405 Administration of administrative leave.
630.1406 Records and reporting.
630.1407 Separation or transfer.
Subpart N--Administrative Leave
Sec. 630.1401 Purpose and applicability.
(a) This subpart implements 5 U.S.C. 6329a, which allows an agency
to provide a separate type of paid leave, on a limited basis, for
general purposes not covered by other types of leave authorized by
other provisions of law. Section 6329a(c) authorizes OPM to prescribe
regulations to carry out the statutory provisions on administrative
leave, including regulations on the appropriate uses and the proper
recording of this leave.
(b) This subpart applies to an employee as defined in 5 U.S.C. 2105
who is employed in an agency, but does not apply to an intermittent
employee who, by definition, does not have an established regular tour
of duty during the administrative workweek.
(c) As provided in 5 U.S.C. 6329a(d), this subpart applies to
employees described in subsection (b) of 38 U.S.C. 7421,
notwithstanding subsection (a) of that section.
Sec. 630.1402 Definitions.
In this subpart:
Administrative leave means paid leave authorized at the discretion
of an agency under 5 U.S.C. 6329a (and not authorized under any other
provision of statute or Presidential directive) to cover periods within
an employee's tour of duty when the employee is not engaged in
activities that qualify as official hours of work, which is provided
without loss of or reduction in:
(1) Pay;
(2) Leave to which an employee is otherwise entitled under law; or
(3) Credit for time or service.
Agency means an Executive agency as defined in 5 U.S.C. 105,
excluding the Government Accountability Office. When the term
``agency'' is used in the context of an agency making determinations or
taking actions, it means the agency head or management
[[Page 32275]]
officials who are authorized (including by delegation) to make the
given determination or take the given action.
Employee means an individual who is covered by this subpart, as
described in Sec. 630.1401(b) and (c).
Head of the agency means the head of an agency or a designated
representative of such agency head who is an agency headquarters-level
official reporting directly to the agency head or a deputy agency head
and who is the sole such representative for the entire agency.
OPM means the Office of Personnel Management.
Presidential directive means an Executive order, Presidential
memorandum, or official written statement by the President in which the
President specifically directs agency heads to provide employees with a
paid excused absence under a specified set of conditions. This excludes
a Presidential action that merely encourages agency heads to use an
agency head authority (e.g., section 6329a) to grant a paid excused
absence under specified conditions or that leaves the amount of excused
absence to be granted in specified conditions subject to agency head
discretion.
Sec. 630.1403 Principles and prohibitions.
(a) General principles. In granting administrative leave, an agency
must adhere to the following general principles:
(1) Administrative leave may be granted (subject to the
requirements of paragraph (a)(5) of this section) only when:
(i) The absence is directly related to the agency's mission;
(ii) The absence is officially sponsored or sanctioned by the
agency; or
(iii) The absence is in the interest of the agency or of the
Government as a whole.
(2) Administrative leave is not an entitlement, but is an agency
discretionary authority that should be used sparingly, consistent with
the sense of Congress expressed in section 1138(b)(2) of Public Law
114-328.
(3) Administrative leave is appropriately used for brief or short
periods of time--usually for not more than 1 workday. An incidence of
administrative leave lasting more than 1 workday may be approved when
determined to be appropriate by an agency. For example, a longer period
would be appropriate when the employee is subject to an investigation
and his or her retention in duty status is inconsistent with the best
interests of the Government, and investigative leave under subpart O of
this part is not available because the 10-workday period described in 5
U.S.C. 6329a(b)(1) has not yet expired. (See 5 U.S.C. 6329b(b)(3)(A).)
(4) Administrative leave may not be established (via agency policy
or negotiation) as an ongoing or recurring entitlement based on meeting
a set of conditions.
(5) A determination that an absence satisfies one of the conditions
in paragraph (a)(1) of this section must be:
(i) Permitted under policies established by the head of the agency;
and
(ii) Reviewed and approved by an official of the agency who is (or
is acting) at a higher level than the official making the
determination--unless there is no higher-level official in the agency.
(b) Specific prohibited uses. An agency may not grant
administrative leave--
(1) To mark the memory of a deceased former Federal official (see
also 5 U.S.C. 6105);
(2) To participate in an event for the employee's personal benefit
or the benefit of an outside organization unless the participation
would satisfy one or more of the conditions in paragraph (a)(1) of this
section;
(3) As a reward to recognize the performance or contributions of an
employee or group of employees (i.e., in lieu of a cash award or a
time-off award); or
(4) To engage in volunteer work or other civic activity that is not
officially sponsored or sanctioned by the head of the agency, based on
the agency's mission or Governmentwide interests.
Sec. 630.1404 Calendar year limitation.
(a) General. Under 5 U.S.C. 6329a(b), during any calendar year, an
agency may place an employee on administrative leave for no more than
10 workdays. In applying this calendar year limitation, administrative
leave used in different agencies must be aggregated. The limitation is
not separately applied to each agency that employed the employee during
the calendar year. (See also Sec. 630.1407.)
(b) Conversion to a limitation on hours. This 10-workday calendar
year limitation is converted to an aggregate limit on hours, taking
into account the different workdays that can apply to employees under
different work schedules, as follows:
(1) For a full-time employee (including an employee on a regular
40-hour basic workweek or a flexible or compressed work schedule under
5 U.S.C. chapter 61, subchapter II, but excluding an employee on an
uncommon tour of duty), the calendar year limitation is 80 hours;
(2) For a full-time employee with an uncommon tour of duty under
Sec. 630.210, the calendar year limitation is equal to the number of
hours in the biweekly uncommon tour of duty (or the average biweekly
hours for uncommon tours for which the biweekly hours vary over an
established cycle);
(3) For a part-time employee, the calendar year limit is prorated
based on the number of hours in the officially scheduled part-time tour
of duty established for purposes of charging leave when absent (e.g.,
for a part-time employee who has an officially scheduled half-time tour
of 40 hours in a biweekly pay period, the calendar year limitation is
40 hours, which is half of the 80-hour limitation for full-time
employees).
(c) Applicable hours. The calendar year limitation described in
this section applies only to administrative leave authorized under this
subpart.
(d) Use for investigations. If an employee is under an
investigation that would result in placement on investigative leave
under subpart O of this part but for the fact that the employee has not
yet reached the calendar year limitation in this section, the agency
must first use administrative leave for purposes of the investigation
until the employee's calendar year limitation is reached, consistent
with 5 U.S.C. 6329b(b)(3) and Sec. 630.1504(a)(1).
(e) After limit is reached. When an employee reaches the calendar
year limitation, an agency may not grant additional administrative
leave during the remainder of that calendar year. If a situation arises
where the employee might have been granted administrative leave under
the agency's policies but for the limitation, the employee must instead
continue to work or use other appropriate paid leave or time off or
leave without pay. If an employee is not able to work and is not
willing or able to use another type of paid leave or time off, an
agency must place the employee in an appropriate type of nonpay status
in order to comply with the calendar year limitation.
Sec. 630.1405 Administration of administrative leave.
(a) An agency must use the same minimum charge increments for
administrative leave as it does for annual and sick leave under Sec.
630.206.
(b) Employees may be granted administrative leave only for hours
within the tour of duty established for purposes of charging annual and
sick leave when absent. For full-time employees, that tour is the 40-
hour basic
[[Page 32276]]
workweek as defined in 5 CFR 610.102, the basic work requirement
established for employees on a flexible or compressed work schedule as
defined in 5 U.S.C. 6121(3), or an uncommon tour of duty under Sec.
630.210.
(c) Agencies authorize, and may require, the use of administrative
leave by an employee or a category of employees. Employees do not have
an entitlement to use administrative leave or to exhaust the
permissible 10 workdays per calendar year prescribed under Sec.
630.1404, nor do they have a right to refuse administrative leave when
the agency requires its use.
Sec. 630.1406 Records and reporting.
(a) Record of placement on leave. An agency must maintain an
accurate record of the placement of an employee on administrative leave
by recording leave in one of the following subcategories, as applicable
in the case at hand:
(1) Administrative leave used for the purposes of an investigation
(as described in Sec. 630.1404(d)); or
(2) Administrative leave used for all other purposes.
(b) Reporting. (1) In agency data systems (including timekeeping
systems) and in data reports submitted to OPM, an agency must record
administrative leave under Sec. 6329a and this subpart as categories
of leave separate from other types of leave. Leave under Sec. 6329a
and this subpart must be recorded as either administrative leave used
for the purposes of an investigation or administrative leave used for
all other purposes, as applicable.
(2) Agencies must provide information to the Government
Accountability Office as that office requires in order to submit
reports to specified Congressional committees required under section
1138(d)(2) of Public Law 114-328, which reports must be submitted not
later than 5 years after December 23, 2016, and every 5 years
thereafter.
Sec. 630.1407 Separation or transfer.
When an employee transfers to another agency or separates from
Federal service, the losing agency must certify, in a manner prescribed
by OPM, the number of administrative leave hours used by an employee
during the current calendar year under one of the two subcategories
described in Sec. 630.1406(a). Any agency that employs the employee in
the same calendar year must apply the hours reported by a losing agency
against the employee's current calendar year limitation under Sec.
630.1404.
0
4. Subpart O is added to read as follows:
Subpart O--Investigative Leave and Notice Leave
Sec.
630.1501 Purpose and applicability.
630.1502 Definitions.
630.1503 Authority and requirements for investigative leave and
notice leave.
630.1504 Administration of investigative leave.
630.1505 Administration of notice leave.
630.1506 Records and reporting.
Subpart O--Investigative Leave and Notice Leave
Sec. 630.1501 Purpose and applicability.
(a) This subpart implements 5 U.S.C. 6329b, which allows an agency
to provide separate types of paid leave for employees who are the
subject of an investigation or in a notice period. OPM has authority to
prescribe implementing regulations under 5 U.S.C. 6329b(h)(1).
(b) This subpart applies to an employee as defined in 5 U.S.C. 2105
who is employed in an agency, excluding:
(1) An Inspector General; or
(2) An intermittent employee who, by definition, does not have an
established regular tour of duty during the administrative workweek.
(c) As provided in 5 U.S.C. 6329b(i), this subpart applies to
employees described in subsection (b) of 38 U.S.C. 7421,
notwithstanding subsection (a) of that section.
Sec. 630.1502 Definitions.
In this subpart:
Agency means an Executive agency as defined in 5 U.S.C. 105,
excluding the Government Accountability Office. When the term
``agency'' is used in the context of an agency making determinations or
taking actions, it means the agency head or management officials who
are authorized (including by delegation) to make the given
determination or take the given action.
Chief Human Capital Officer or CHCO means the Chief Human Capital
Officer of an agency designated or appointed under 5 U.S.C 1401, or the
equivalent.
Committee of jurisdiction means, with respect to an agency, each
committee of the Senate or House of Representatives with jurisdiction
over the agency.
Employee means an individual who is covered by this subpart, as
described in Sec. 630.1501(b) and (c).
Investigation means inquiry regarding an employee involving such
matters as--
(1) An employee's alleged misconduct that could result in an
adverse action as described in 5 CFR part 752 or similar authority;
(2) Security concerns, including whether the employee should retain
eligibility for logical access to agency facilities and systems under
the standards established by Homeland Security Presidential Directive
(HSPD) 12 and guidance issued pursuant to that directive; or
(3) Other matters that could lead to disciplinary action.
Investigative entity means:
(1) An internal investigative unit of an agency granting
investigative leave under this subpart, which may be composed of one or
more persons, such as supervisors, managers, human resources
practitioners, personnel security office staff, workplace violence
prevention team members, or other agency representatives;
(2) The Office of Inspector General of an agency granting
investigative leave under this subpart;
(3) The Attorney General; or
(4) The Office of Special Counsel.
Investigative leave means leave in which an employee who is the
subject of an investigation is placed, as authorized under 5 U.S.C.
6329b (and not authorized under any other provision of law), which is
provided without loss of or reduction in:
(1) Pay;
(2) Leave to which an employee is otherwise entitled under law; or
(3) Credit for time or service.
Notice leave means leave in which an employee who is in a notice
period is placed, as authorized under 5 U.S.C. 6329b (and not
authorized under any other provision of law), which is provided without
loss of or reduction in:
(1) Pay;
(2) Leave to which an employee is otherwise entitled under law; or
(3) Credit for time or service.
Notice period means a period beginning on the date on which an
employee is provided notice, as required under law, of a proposed
adverse action against the employee and ending--
(1) On the effective date of the adverse action; or
(2) On the date on which the agency notifies the employee that no
adverse action will be taken.
OPM means the Office of Personnel Management.
Participating in a telework program means an employee is eligible
to telework and has an established arrangement with his or her agency
under which the employee is approved to participate in the agency
telework program, including on a routine or situational basis. Such an
employee who teleworks on a situational basis is
[[Page 32277]]
considered to be continuously participating in a telework program even
if there are extended periods during which the employee does not
perform telework.
Telework site means a location where an employee is authorized to
perform telework, as described in 5 U.S.C. chapter 65, such as an
employee's home.
Sec. 630.1503 Authority and requirements for investigative leave and
notice leave.
(a) Authority. An agency may, in accordance with paragraph (b) of
this section, place an employee on:
(1) Investigative leave, if the employee is the subject of an
investigation; or
(2) Notice leave:
(i) If the employee is in a notice period; or
(ii) Following a placement on investigative leave if, not later
than the day after the last day of the period of investigative leave:
(A) The agency proposes or initiates an adverse action against the
employee; and
(B) The agency determines that the employee continues to meet one
or more of the criteria described in paragraph (b)(1) of this section.
(b) Required determinations. An agency may place an employee on
investigative leave or notice leave only if the agency has:
(1) Determined, after consideration of the baseline factors
specified in paragraph (e) of this section, that the continued presence
of the employee in the workplace during an investigation of the
employee or while the employee is in a notice period, as 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
(2) Considered the following options (or a combination thereof):
(i) Keeping the employee in a duty status by assigning the employee
to duties in which the employee no longer poses a threat, as described
in paragraphs (b)(1)(i) through (iv) of this section;
(ii) Allowing the employee to voluntarily take leave (paid or
unpaid) or paid time off, as appropriate under the rules governing each
category of leave or paid time off;
(iii) Carrying the employee in absent without leave status, if the
employee is absent from duty without approval; and
(iv) 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,
consistent with 5 CFR 752.404(d)(1); and
(3) Determined that none of the options under paragraph (b)(2) of
this section is appropriate.
(c) Telework alternative for investigative leave. (1) Consistent
with 5 U.S.C. 6502(c), if an agency would otherwise place an employee
on investigative leave, the agency may require the employee to perform,
at a telework site, duties similar to the duties that the employee
normally performs if:
(i) The agency determines that such a requirement would not pose a
threat, as described in paragraphs (b)(1)(i) through (iv) of this
section;
(ii) The employee is eligible to telework under the eligibility
conditions set forth in 5 U.S.C. 6502(a) and (b)(4);
(iii) The employee has been participating in a telework program
under the agency telework policy during some portion of the 30-day
period immediately preceding the commencement of investigative leave
(or the commencement of required telework in lieu of such leave under
this paragraph (c), if earlier); and
(iv) The agency determines that teleworking would be appropriate.
(2) For purposes of paragraph (c)(1) of this section, an employee
is considered to be eligible to telework if the agency determines the
employee is eligible to telework under agency telework policies
described in 5 U.S.C. 6502(a) and is not barred from teleworking under
the eligibility conditions described in 5 U.S.C. 6502(b)(4). Any
telework agreement established under 5 U.S.C. 6502(b)(2) must be
superseded as necessary in order to comply with an agency's action to
require telework under 5 U.S.C. 6502(c) and paragraph (c)(1) of this
section.
(3) If an employee who is required to telework under paragraph
(c)(1) of this section is absent from telework duty without approval,
an agency may place the employee in absent without leave status,
consistent with agency policies.
(d) Reassessment and return to duty. (1) An employee may be
returned to duty at any time if the agency reassesses its determination
to place the employee on investigative leave or notice leave. An
employee on investigative leave or notice leave must be prepared to
report to work at any time during his or her regularly scheduled tour
of duty or, if the employee anticipates a possible inability to report
promptly, must obtain approval of leave in advance of the date or dates
that the employee would not be available to report.
(2) For an employee on investigative leave, an agency may reassess
its determination that the employee must be removed from the workplace
based on the criteria in paragraph (b)(1) of this section and may
reassess its determination that the options in paragraph (b)(2) of this
section are not appropriate. An agency may reassess its previous
determination to require or not require telework under paragraph (c) of
this section.
(3) For an employee on notice leave, an agency may reassess its
determination that the employee must be removed from the regular
worksite based on the criteria in paragraph (b)(1) of this section and
may reassess its determination that the options in paragraph (b)(2) of
this section are not appropriate.
(4) When an employee is placed on investigative leave or notice
leave, the employee must be available to report promptly to an approved
duty location if directed by his or her supervisor. Any failure to so
report may result in the employee being recorded as absent without
leave, which can be the basis for disciplinary action. An employee who
anticipates that he or she may be unavailable to report promptly must
request scheduled leave or paid time off in advance, as provided under
paragraph (b)(2)(ii) of this section, to avoid being recorded as absent
without leave.
(e) Baseline factors. In making a determination regarding the
criteria listed under paragraph (b)(1) of this section, an agency must
consider the following baseline factors:
(1) The nature and severity of the employee's exhibited or alleged
behavior;
(2) The nature of the agency's or employee's work and the ability
of the agency to accomplish its mission; and
(3) Other impacts of the employee's continued presence in the
workplace detrimental to legitimate Government interests, including
whether the employee will pose an unacceptable risk to:
(i) The life, safety, or health of employees, contractors, vendors
or visitors to a Federal facility;
(ii) The Government's physical assets or information systems;
(iii) Personal property;
(iv) Records, including classified, privileged, proprietary,
financial or medical records; or
(v) The privacy of the individuals whose data the Government holds
in its systems.
[[Page 32278]]
(f) Minimum charge. An agency must use the same minimum charge
increments for investigative and notice leave as it does for annual and
sick leave under Sec. 630.206.
(g) Tour of duty. Employees may be granted investigative leave or
notice leave only for hours within the tour of duty established for
purposes of charging annual and sick leave when absent. For full-time
employees, that tour is the 40-hour basic workweek as defined in 5 CFR
610.102, the basic work requirement established for employees on a
flexible or compressed work schedule as defined in 5 U.S.C. 6121(3), or
an uncommon tour of duty under Sec. 630.210.
Sec. 630.1504 Administration of investigative leave.
(a) Commencement. Investigative leave may not be commenced until:
(1) The employee's use of administrative leave under subpart N of
this part has reached the 10-workday calendar year limitation described
in 5 U.S.C. 6329a(b)(1) and Sec. 630.1404, as converted to hours under
Sec. 630.1404(b); and
(2) The agency determines that further investigation of the
employee is necessary.
(b) Duration. The agency may place the employee on investigative
leave for an initial period of not more than 30 workdays per
investigation. An employee may be placed on investigative leave
intermittently--that is, a period of investigative leave may be
interrupted by:
(1) On-duty service performed under Sec. 630.1503(b)(2)(i) or (c);
(2) Leave or paid time off in lieu of such service under Sec.
630.1503(b)(2)(ii); or
(3) Absence without leave under Sec. 630.1503(b)(2)(iii).
(c) Written explanation of leave. If an agency places an employee
on investigative leave, the agency must provide the employee a written
explanation regarding the placement of the employee on investigative
leave. The written explanation must:
(1) Describe the limitations of the leave placement, including the
duration of leave;
(2) Include notice that, at the conclusion of the period of
investigative leave, the agency must take an action under paragraph (d)
of this section;
(3) Include notice that placement on investigative leave for 70
workdays or more is considered a ``personnel action'' for purposes of
the Office of Special Counsel's authority to act, in applying the
prohibited personnel practices provisions at 5 U.S.C. 2302(b)(8)-(9)
(see paragraph (i) of this section).
(d) Agency action. Not later than the day after the last day of an
initial or extended period of investigative leave, an agency must:
(1) Return the employee to regular duty status;
(2) Take one or more of the actions under Sec. 630.1503(b)(2);
(3) Propose or initiate an adverse action against the employee as
provided under law; or
(4) Extend the period of investigative leave if permitted under
paragraphs (f) and (g) of this section.
(e) Continued investigation. Investigation of an employee may
continue after the expiration of the initial 30 workday period of
investigative leave. Investigation of an employee may continue even if
the employee is returned to regular duty status and is no longer on
investigative leave.
(f) Extension of investigative leave--(1) Increments. An agency may
extend the period of investigative leave using increments of up to 30
workdays for each extension when approved as described in paragraph
(f)(3) of this section. The amount of investigative leave used under
the final extension may be less than 30 workdays, as appropriate.
(2) Maximum number of extensions. Except as provided in paragraph
(g) of this section, the total period of extended investigative leave
(i.e., in addition to the initial 30-workday period of investigative
leave) may not exceed 90 workdays (i.e., 3 incremental extensions of 30
workdays). This 90-day limit applies to extensions of investigative
leave associated with a single initial period of investigative leave.
(3) Approval of extensions. (i) An incremental extension under
paragraph (f)(1) of this section is permitted only if the agency makes
a written determination reaffirming that the employee must be removed
from the workplace based on the criteria in Sec. 630.1503(b)(1) and
that the options in Sec. 630.1503(b)(2) are not appropriate.
(ii) Except as provided by paragraph (f)(3)(iii) of this section,
an incremental extension under paragraph (f)(1) of this section is
permitted only if approved by the CHCO of an agency, or the designee of
the CHCO, after consulting with the investigator responsible for
conducting the investigation of the employee.
(iii) In the case of an employee of an Office of Inspector General,
an incremental extension under paragraph (f)(1) of this section is
permitted only if approved (after consulting with the investigator
responsible for conducting the investigation of the employee) by:
(A) The Inspector General or the designee of the Inspector General,
rather than the CHCO or the designee of the CHCO; or
(B) An official of the agency designated by the head of the agency
within which the Office of Inspector General is located, if the
Inspector General requests the agency head make such a designation.
(4) Designation guidance. In delegating authority to a designated
official to approve an incremental extension as described in paragraph
(f)(3) of this section, a CHCO must pay heed to the designation
guidance issued by the CHCO Council under 5 U.S.C. 6329b(c)(3), except
that, in the case of approvals for an employee of an Office of
Inspector General, an Inspector General must pay heed to the
designation guidance issued by the Council of the Inspectors General on
Integrity and Efficiency under 5 U.S.C. 6329b(c)(4)(B).
(g) Further extension of investigative leave. An official
authorized under paragraph (f)(3) of this section to approve an
incremental extension under paragraph (f)(1) of this section may
approve further incremental extensions of 30 workdays (i.e., each
extension is individually approved for up to 30 workdays) under this
paragraph after an employee has reached the maximum number of
extensions of investigative leave under paragraph (f)(2) of this
section. An agency may further extend a period of investigative leave
only if the agency makes a written determination reaffirming that the
employee must be removed from the workplace based on the criteria in
Sec. 630.1503(b)(1) and that the options in Sec. 630.1503(b)(2) are
not appropriate. Not later than 5 business days after granting each
further extension, the agency must submit (subject to Sec.
630.1506(b)) 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, along with any other committees
of jurisdiction, a report containing:
(1) The title, position, office or agency subcomponent, job series,
pay grade, and salary of the employee;
(2) A description of the duties of the employee;
(3) The reason the employee was placed on investigative leave;
(4) An explanation as to why the employee meets the criteria
described in Sec. 630.1503(b)(1)(i) through (iv) and why the agency is
not able to temporarily reassign the duties of the employee or detail
the employee to another position within the agency;
[[Page 32279]]
(5) In the case of an employee required to telework under 5 U.S.C.
6502(c) during a period of investigation, the reasons that the agency
required the employee to telework under that section and the duration
of the teleworking requirement;
(6) The status of the investigation of the employee;
(7) A certification to the agency by an investigative entity
stating that additional time is needed to complete the investigation of
the employee and providing an estimate of the amount of time that is
necessary to complete the investigation of the employee; and
(8) In the case of a completed investigation of the employee, the
results of the investigation and the reason that the employee remains
on investigative leave.
(h) Completed investigation. An agency may not further extend a
period of investigative leave on or after the date that is 30 calendar
days after the completion of the investigation of the employee by an
investigative entity.
(i) Possible prohibited personnel action. For purposes of 5 U.S.C.
chapter 12, subchapter II, and section 1221, placement on investigative
leave under this subpart for a period of 70 workdays or more shall be
considered a personnel action for purposes of the Office of Special
Counsel in applying the prohibited personnel practices provisions at 5
U.S.C. 2302(b)(8) or (9).
(j) Conversion of workdays to hours. In applying this section, the
limitations based on workdays (i.e., the 30-workday increments in
paragraphs (b), (f), and (g) of this section and the 70-workday limit
in paragraph (h) of this section) must be converted to hours, taking
into account the different workdays that can apply to employees under
different work schedules, as follows:
(1) For a full-time employee (including an employee on a regular
40-hour basic workweek or a flexible or compressed work schedule under
5 U.S.C. chapter 61, subchapter II, but excluding an employee on an
uncommon tour of duty), the 30-workday increment is converted to 240
hours and the 70-workday limit is converted to 560 hours;
(2) For a full-time employee with an uncommon tour of duty under
Sec. 630.210, the 30-workday increment is converted to three times the
number of hours in the biweekly uncommon tour of duty (or the average
biweekly hours for uncommon tours for which the biweekly hours vary
over an established cycle), and the 70-workday limit is converted to a
number of hours derived by multiplying the hours equivalent of 30
workdays (for a given uncommon tour) times the ratio of 70 divided by
30;
(3) For a part-time employee, the calendar year limit is prorated
based on the number of hours in the officially scheduled part-time tour
of duty established for purposes of charging leave when absent (e.g.,
for a part-time employee who has an officially scheduled half-time tour
of 40 hours in a biweekly pay period, the 30-workday increment is
converted to 120 hours, which is half of 240 hours (the 30-workday
increment for full-time employees)).
Sec. 630.1505 Administration of notice leave.
(a) Commencement. Notice leave may commence only after an employee
has received written notice of a proposed adverse action. There is no
requirement that the employee exhaust 10 workdays of administrative
leave under 5 U.S.C. 6329a(b) and Sec. 630.1404 before the employee
may be placed on notice leave.
(b) Duration. Placement of an employee on notice leave shall be for
a period not longer than the duration of the notice period.
(c) Written explanation of leave. If an agency places an employee
on notice leave, the agency must provide the employee a written
explanation regarding the placement of the employee on notice leave.
The written explanation must provide information on the employee's
notice period and include a statement that the notice leave will be
provided only during the notice period.
Sec. 630.1506 Records and reporting.
(a) Record of placement on leave. An agency must maintain an
accurate record of the placement of an employee on investigative leave
or notice leave by the agency, including--
(1) The reasons for initial authorization of the investigative
leave or notice leave, including the alleged action(s) of the employee
that required investigation or issuance of a notice of a proposed
adverse action;
(2) The basis for the determination made under Sec.
630.1503(b)(1);
(3) An explanation of why an action under Sec. 630.1503(b)(2) was
not appropriate;
(4) The length of the period of investigative leave or notice
leave;
(5) The amount of salary paid to the employee during the period of
leave;
(6) The reasons for authorizing the leave, and if an extension of
investigative leave was granted, the recommendation made by an
investigator as part of the consultation required under Sec.
630.1504(f)(3);
(7) Whether the employee was required to telework under Sec.
630.1503(c) during the period of the investigation, including the
reasons for requiring or not requiring the employee to telework;
(8) 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 Sec. 630.1504(f) or (g); and
(9) Any additional information OPM may require.
(b) Availability of records. (1) An agency must make a record kept
under paragraph (a) of this section available upon request:
(i) To any committee of jurisdiction;
(ii) To OPM;
(iii) To the Government Accountability Office; and
(iv) As otherwise required by law.
(2) Notwithstanding paragraph (b)(1) of this section and Sec.
630.1504(g), the requirement that an agency make records and
information on use of investigative leave or notice leave available to
various entities is subject to applicable laws, Executive orders, and
regulations governing the dissemination of sensitive information
related to national security, foreign relations, or law enforcement
matters (e.g., 50 U.S.C. 3024(i), (j), and (m) and Executive Orders
12968 and 13526).
(c) Reporting. (1) In agency data systems and in data reports
submitted to OPM, an agency must record investigative leave and notice
leave under Sec. 6329b and this subpart as categories of leave
separate from other types of leave. Leave under Sec. 6329b and this
subpart must be recorded as either investigative leave or notice leave,
as applicable.
(2) Agencies must provide information to the Government
Accountability Office as that office requires in order to submit
reports to specified Congressional committees required under section
1138(d)(2) of Public Law 114-328, which reports must be submitted not
later than 5 years after December 23, 2016, and every 5 years
thereafter.
0
5. Subpart P is added to read as follows:
Subpart P--Weather and Safety Leave
Sec.
630.1601 Purpose and applicability.
630.1602 Definitions.
630.1603 Authorization.
630.1604 OPM and agency responsibilities.
630.1605 Telework and emergency employees.
630.1606 Administration of weather and safety leave.
630.1607 Records and reporting.
[[Page 32280]]
Subpart P--Weather and Safety Leave
Sec. 630.1601 Purpose and applicability.
(a) This subpart implements 5 U.S.C. 6329c, which allows an agency
to provide a separate type of paid leave when weather or other safety-
related conditions prevent employees from safely traveling to or safely
performing work at an approved location due to an act of God, terrorist
attack, or other applicable condition. Section 6329c(d) provides OPM
with authority to prescribe regulations to carry out the statutory
provisions on weather and safety leave, including regulations on the
appropriate uses and the proper recording of this leave.
(b) This subpart applies to an employee as defined in 5 U.S.C. 2105
who is employed in an agency, but does not apply to an intermittent
employee who, by definition, does not have an established regular tour
of duty during the administrative workweek.
(c) As provided in 5 U.S.C. 6329c(e), this subpart applies to
employees described in subsection (b) of 38 U.S.C. 7421,
notwithstanding subsection (a) of that section.
Sec. 630.1602 Definitions.
In this subpart:
Act of God means an act of nature, including hurricanes, tornadoes,
floods, wildfires, earthquakes, landslides, snowstorms, and avalanches.
Agency means an Executive agency as defined in 5 U.S.C. 105,
excluding the Government Accountability Office. When the term
``agency'' is used in the context of an agency making determinations or
taking actions, it means the agency heads or management officials who
are authorized (including by delegation) to make the given
determination or take the given action.
Employee means an individual who is covered by this subpart, as
described in Sec. 630.1601(b) and (c).
OPM means the Office of Personnel Management.
Participating in a telework program means an employee is eligible
to telework and has an established arrangement with his or her agency
under which the employee is approved to participate in the agency
telework program, including on a routine or situational basis. Such an
employee who teleworks on a situational basis is considered to be
continuously participating in a telework program even if there are
extended periods during which the employee does not perform telework.
Telework site means a location where an employee is authorized to
perform telework, as described in 5 U.S.C. chapter 65, such as an
employee's home.
Weather and safety leave means paid leave provided under the
authority of 5 U.S.C. 6329c.
Sec. 630.1603 Authorization.
Subject to other provisions of this subpart, an agency may grant
weather and safety leave to employees if they are prevented from safely
traveling to or safely performing work at a location approved by the
agency due to:
(a) An act of God;
(b) A terrorist attack; or
(c) Another condition that prevents an employee or group of
employees from safely traveling to or safely performing work at an
approved location.
Sec. 630.1604 OPM and agency responsibilities.
(a) OPM is responsible for prescribing regulations and guidance
related to the appropriate use of leave under this subpart and the
proper recording of such leave, including OPM guidance on
Governmentwide dismissal and closure policies and procedures that
provides for use of consistent terminology in describing various
operating status scenarios. In issuing any operating status
announcements for the Washington, DC, area, OPM must ensure that the
specific policies and procedures related to those announcements are
consistent with the regulations in this subpart and with OPM's
Governmentwide guidance.
(b) Employing agencies are responsible for:
(1) Establishing and applying policies and procedures related to
use of leave under this subpart that are consistent with OPM
regulations and guidance described in paragraph (a) of this section;
and
(2) Ensuring that any agency-specific operating status
announcements they issue (for a specific geographic location or area)
use terminology required by OPM-issued Governmentwide guidance.
Sec. 630.1605 Telework and emergency employees.
(a) Telework employees. (1) Except as provided under paragraph
(a)(2) of this section, employees who are participating in a telework
program and are able to safely travel to and work at an approved
telework site may not be granted leave under Sec. 630.1603. Employees
who are eligible to telework and participating in a telework program
under applicable agency policies are typically able to safely perform
work at their approved telework site (e.g., home), since they are not
required to work at their regular worksite.
(2)(i) If, in the agency's judgment, the conditions in Sec.
630.1603 could not reasonably be anticipated, an agency may approve
leave under this subpart to the extent an employee was not able to
prepare for telework as described in paragraph (a)(3) of this section
and is otherwise unable to perform productive work at the telework
site.
(ii) If an employee is prevented from safely working at the
approved telework site due to circumstances, arising from one or more
of the conditions in Sec. 630.1603, applicable to the telework site,
an agency may, at its discretion, provide leave under this subpart to
the employee.
(iii) Notwithstanding paragraphs (a)(2)(i) and (ii) of this
section, an agency may decide not to approve leave under this subpart
when the conditions in Sec. 630.1603(a) do not prevent the employee
from safely traveling to or safely performing work at a regular
worksite, even if the affected day is a scheduled telework day.
(3) In making a determination under paragraph (a)(2) of this
section, an agency must evaluate whether any of the conditions in Sec.
630.1603(a) of this section could be reasonably anticipated and whether
the employee took reasonable steps (within the employee's control) to
prepare to perform telework at the approved telework site. For example,
if a significant snowstorm is predicted, the employee may need to
prepare by taking home any equipment (e.g., laptop computer) and work
needed for teleworking. To the extent that an employee is unable to
perform work at a telework site because of failure to make necessary
preparations for reasonably anticipated conditions, an agency may not
approve weather and safety leave, and the employee would need to use
other appropriate paid leave, paid time off, or leave without pay.
(b) Emergency employees. An agency may designate emergency
employees who are critical to agency operations and for whom weather
and safety leave may not be applicable. To the extent practicable, an
agency should designate its emergency employees well in advance in
anticipation of the possible occurrence of the conditions set forth in
Sec. 630.1603. If the agency wishes to provide for the possibility
that an emergency employee could work from an approved telework site in
lieu of traveling to the regular worksite in appropriate circumstances,
an agency should encourage the employee to enter into a telework
agreement providing for that contingency. An agency may designate
different emergency employees for the different
[[Page 32281]]
circumstances expected to arise from these conditions. Emergency
employees must report to work at their regular worksite or another
approved location as directed by the agency, unless--
(1) The agency determines that travel to or performing work at the
worksite is unsafe for emergency employees, in which case the agency
may require the employees to work at another location, including a
telework site as provided in paragraph (a) of this section, as
appropriate; or
(2) The agency determines that circumstances justify granting leave
under this subpart to emergency employees.
Sec. 630.1606 Administration of weather and safety leave.
(a) An agency must use the same minimum charge increments for
weather and safety leave as it does for annual and sick leave under
Sec. 630.206.
(b) Employees may be granted weather and safety leave only for
hours within the tour of duty established for purposes of charging
annual and sick leave when absent. For full-time employees, that tour
is the 40-hour basic workweek as defined in 5 CFR 610.102, the basic
work requirement established for employees on a flexible or compressed
work schedule as defined in 5 U.S.C. 6121(3), or an uncommon tour of
duty under Sec. 630.210.
(c) Employees may not receive weather and safety leave for hours
during which they are on other preapproved leave (paid or unpaid) or
paid time off. Agencies should not approve weather and safety leave for
an employee who, in the agency's judgment, is cancelling preapproved
leave or paid time off, or changing a regular day off in a flexible or
compressed work schedule, for the primary purpose of obtaining weather
and safety leave.
Sec. 630.1607 Records and reporting.
(a) Record of placement on leave. An agency must maintain an
accurate record of the placement of an employee on weather and safety
leave.
(b) Reporting. In agency data systems (including timekeeping
systems) and in data reports submitted to OPM, an agency must record
weather and safety leave under Sec. 6329c and this subpart as a
category of leave separate from other types of leave.
[FR Doc. 2017-14712 Filed 7-12-17; 8:45 am]
BILLING CODE 6325-39-P