[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]


 ========================================================================
 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.
 
 ========================================================================
 

  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.

-----------------------------------------------------------------------

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

[[Page 32264]]

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

[[Page 32265]]

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

[[Page 32266]]

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

[[Page 32267]]

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