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S. 2450 (114th): Administrative Leave Act of 2016

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The text of the bill below is as of Jan 20, 2016 (Introduced).

II

114th CONGRESS

2d Session

S. 2450

IN THE SENATE OF THE UNITED STATES

January 20, 2016

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

A BILL

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

1.

Short title

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

2.

Sense of Congress

It is the sense of Congress that—

(1)

agency use of administrative leave, and leave that is referred to incorrectly as administrative leave in agency recording practices, has exceeded reasonable amounts—

(A)

in contravention of—

(i)

established precedent of the Comptroller General of the United States; and

(ii)

guidance provided by the Office of Personnel Management; and

(B)

resulting in significant cost to the Federal Government;

(2)

administrative leave should be used sparingly;

(3)

prior to the use of administrative leave, an agency should consider other actions, including—

(A)

temporary reassignment;

(B)

transfer; and

(C)

telework;

(4)

an agency should prioritize and expeditiously conclude an investigation in which an employee is placed in administrative leave so that, not later than the conclusion of the leave period—

(A)

the employee is returned to duty status; or

(B)

an appropriate personnel action is taken with respect to the employee;

(5)

data show that there are too many examples of employees placed in administrative leave for 6 months or longer, leaving the employees without any available recourse to—

(A)

return to duty status; or

(B)

challenge the decision of the agency;

(6)

an agency should ensure accurate and consistent recording of the use of administrative leave so that administrative leave can be managed and overseen effectively; and

(7)

other forms of excused absence authorized by law should be recorded separately from administrative leave, as defined by this Act.

3.

Administrative leave

(a)

In general

Subchapter II of chapter 63 of title 5, United States Code, is amended by adding at the end the following:

6329.

Administrative leave

(a)

Definitions

In this section—

(1)

the term administrative leave means leave—

(A)

without loss of or reduction in—

(i)

pay;

(ii)

leave to which an employee is otherwise entitled under law; or

(iii)

credit for time or service; and

(B)

that is not authorized under any other provision of law;

(2)

the term agency—

(A)

means an Executive agency (as defined in section 105 of this title); and

(B)

does not include the Government Accountability Office; and

(3)

the term employee means an employee of an agency.

(b)

Administrative leave

(1)

In general

An agency may not place an employee in administrative leave for a period of more than 5 consecutive days.

(2)

Rule of construction

Nothing in paragraph (1) shall be construed to limit the use of leave that was specifically authorized under law on the day before the date of enactment of this section.

(3)

Records

An agency shall record administrative leave separately from leave authorized under any other provision of law.

(c)

Regulations

(1)

OPM regulations

Not later than 1 year after the date of enactment of this section, the Director of the Office of Personnel Management shall—

(A)

prescribe regulations to carry out this section; and

(B)

prescribe regulations that provide guidance to agencies regarding—

(i)

acceptable agency uses of administrative leave; and

(ii)

the proper recording of—

(I)

administrative leave; and

(II)

other leave authorized by law.

(2)

Agency action

Not later than 1 year after the date on which the Director of the Office of Personnel Management prescribes regulations under paragraph (1), each agency shall revise and implement the internal policies of the agency to meet the requirements of this section.

.

(b)

OPM study

Not later than 120 days after the date of enactment of this Act, the Director of the Office of Personnel Management, in consultation with Federal agencies, groups representing Federal employees, and other relevant stakeholders, shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report identifying agency practices, before the date of enactment of this Act, of placing an employee in administrative leave for more than 5 consecutive days when the placement was not specifically authorized by law.

(c)

Technical and conforming amendment

The table of sections for subchapter II of chapter 63 of title 5, United States Code, is amended by inserting after the item relating to section 6328 the following:

6329. Administrative leave.

.

4.

Investigative leave and notice leave

(a)

In general

Subchapter II of chapter 63 of title 5, United States Code, as amended by this Act, is further amended by adding at the end the following:

6330.

Investigative leave and notice leave

(a)

Definitions

In this section—

(1)

the term agency—

(A)

means an Executive agency (as defined in section 105 of this title);

(B)

does not include the Government Accountability Office; and

(C)

for the purposes of notice leave, means the employing agency of an employee covered under chapter 75;

(2)

the term Chief Human Capital Officer means—

(A)

the Chief Human Capital Officer of an agency designated or appointed under section 1401; or

(B)

the equivalent;

(3)

the term committees of jurisdiction, with respect to an agency, means each committee in the Senate and House of Representatives with jurisdiction over the agency;

(4)

the term Director means the Director of the Office of Personnel Management;

(5)

the term employee—

(A)

means an employee of an agency; and

(B)

does not include the Inspector General of an agency;

(6)

the term investigative leave means leave—

(A)

without loss of or reduction in—

(i)

pay;

(ii)

leave to which an employee is otherwise entitled under law; or

(iii)

credit for time or service;

(B)

that is not authorized under any other provision of law; and

(C)

in which an employee who is the subject of an investigation is placed;

(7)

the term notice leave means leave—

(A)

without loss of or reduction in—

(i)

pay;

(ii)

leave to which an employee is otherwise entitled under law; or

(iii)

credit for time or service;

(B)

that is not authorized under any other provision of law; and

(C)

in which an employee who is in a notice period is placed; and

(8)

the term notice period means a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.

(b)

Leave for employees under investigation or in a notice period

(1)

Authority

An agency may, in accordance with paragraph (2), place an employee in—

(A)

investigative leave if the employee is the subject of an investigation;

(B)

notice leave if the employee is in a notice period; or

(C)

notice leave following a placement in investigative leave if, not later than the day after the last day of the period of investigative leave—

(i)

the agency proposes or initiates an adverse action against the employee; and

(ii)

the agency determines that the employee continues to meet 1 or more of the criteria described in subsection (c)(1).

(2)

Requirements

An agency may place an employee in leave under paragraph (1) only if the agency has—

(A)

made a determination with respect to the employee under subsection (c)(1);

(B)

considered the available options for the employee under subsection (c)(2); and

(C)

determined that none of the available options under subsection (c)(2) is appropriate.

(c)

Employees under investigation or in a notice period

(1)

Determinations

An agency may not place an employee in investigative leave or notice leave under subsection (b) unless the continued presence of the employee in the workplace during an investigation of the employee or while the employee is in a notice period, if applicable, may—

(A)

pose a threat to the employee or others;

(B)

result in the destruction of evidence relevant to an investigation;

(C)

result in loss of or damage to Government property; or

(D)

otherwise jeopardize legitimate Government interests.

(2)

Available options for employees under investigation or in a notice period

After making a determination under paragraph (1) with respect to an employee, and before placing an employee in investigative leave or notice leave under subsection (b), an agency shall consider taking 1 or more of the following actions:

(A)

Assigning the employee to duties in which the employee is no longer a threat to—

(i)

safety;

(ii)

the mission of the agency;

(iii)

Government property; or

(iv)

evidence relevant to an investigation.

(B)

Allowing the employee to take leave for which the employee is eligible.

(C)

Requiring the employee to telework under section 6502(c).

(D)

If the employee has become absent without requesting leave, carrying the employee in absence without leave status.

(E)

For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.

(3)

Duration of leave

(A)

Investigative leave

Subject to extensions of a period of investigative leave for which an employee may be eligible under subsections (d) and (e), the initial placement of an employee in investigative leave shall be for a period not longer than 10 days.

(B)

Notice leave

Placement of an employee in notice leave shall be for a period not longer than the duration of the notice period.

(4)

Explanation of leave

(A)

In general

If an agency places an employee in leave under subsection (b), the agency shall provide the employee a written explanation of the leave placement and the reasons for the leave placement.

(B)

Explanation

The written notice under subparagraph (A) shall describe the limitations of the leave placement, including—

(i)

the applicable limitations under paragraph (3); and

(ii)

in the case of a placement in investigative leave, an explanation that, at the conclusion of the period of leave, the agency shall take an action under paragraph (5).

(5)

Agency action

Not later than the day after the last day of a period of investigative leave for an employee under subsection (b)(1), an agency shall—

(A)

return the employee to regular duty status;

(B)

take 1 or more of the actions authorized under paragraph (2), meaning—

(i)

assigning the employee to duties in which the employee is no longer a threat to—

(I)

safety;

(II)

the mission of the agency;

(III)

Government property; or

(IV)

evidence relevant to an investigation;

(ii)

allowing the employee to take leave for which the employee is eligible;

(iii)

requiring the employee to telework under section 6502(c);

(iv)

if the employee has become absent without requesting leave, carrying the employee in absence without leave status; or

(v)

for an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed;

(C)

propose or initiate an adverse action against the employee as provided under law; or

(D)

extend the period of investigative leave under subsections (d) and (e).

(6)

Rule of construction

Nothing in paragraph (5) shall be construed to prevent the continued investigation of an employee, except that the placement of an employee in investigative leave may not be extended for that purpose except as provided in subsections (d) and (e).

(d)

Initial extension of investigative leave

(1)

In general

Subject to paragraph (4), if the Chief Human Capital Officer of an agency, or the designee of the Chief Human Capital Officer, approves such an extension after consulting with the investigator responsible for conducting the investigation to which an employee is subject, the agency may extend the period of investigative leave for the employee under subsection (b) for not more than 30 days.

(2)

Maximum number of extensions

The total period of additional investigative leave for an employee under paragraph (1) may not exceed 110 days.

(3)

Designation guidance

Not later than 1 year after the date of enactment of this section, the Chief Human Capital Officers Council shall issue guidance to ensure that if the Chief Human Capital Officer of an agency delegates the authority to approve an extension under paragraph (1) to a designee, the designee is at a sufficiently high level within the agency to make an impartial and independent determination regarding the extension.

(4)

Extensions for OIG employees

(A)

Approval

In the case of an employee of an Office of Inspector General—

(i)

the Inspector General or the designee of the Inspector General, rather than the Chief Human Capital Officer or the designee of the Chief Human Capital Officer, shall approve an extension of a period of investigative leave for the employee under paragraph (1); or

(ii)

at the request of the Inspector General, the head of the agency within which the Office of Inspector General is located shall designate an official of the agency to approve an extension of a period of investigative leave for the employee under paragraph (1).

(B)

Guidance

Not later than 1 year after the date of enactment of this section, the Council of the Inspectors General on Integrity and Efficiency shall issue guidance to ensure that if the Inspector General or the head of an agency, at the request of the Inspector General, delegates the authority to approve an extension under subparagraph (A) to a designee, the designee is at a sufficiently high level within the Office of Inspector General or the agency, as applicable, to make an impartial and independent determination regarding the extension.

(e)

Further extension of investigative leave

(1)

In general

After reaching the limit under subsection (d)(2), an agency may further extend a period of investigative leave for an employee for a period of not more than 60 days if, before the further extension begins, the head of the agency or, in the case of an employee of an Office of Inspector General, the Inspector General submits a notification that includes the reasons for the further extension to the—

(A)

committees of jurisdiction;

(B)

Committee on Homeland Security and Governmental Affairs of the Senate; and

(C)

Committee on Oversight and Government Reform of the House of Representatives.

(2)

No limit

There shall be no limit on the number of further extensions that an agency may grant to an employee under paragraph (1).

(3)

OPM review

An agency shall request from the Director, and include with the notification required under paragraph (1), the opinion of the Director—

(A)

with respect to whether to grant a further extension under this subsection, including the reasons for that opinion; and

(B)

which shall not be binding on the agency.

(4)

Sunset

The authority provided under this subsection shall expire on the date that is 6 years after the date of enactment of this section.

(f)

Consultation guidance

Not later than 1 year after the date of enactment of this section, the Council of the Inspectors General on Integrity and Efficiency, in consultation with the Attorney General and the Special Counsel, shall issue guidance on best practices for consultation between an investigator and an agency on the need to place an employee in investigative leave during an investigation of the employee, including during a criminal investigation, because the continued presence of the employee in the workplace during the investigation may—

(1)

pose a threat to the employee or others;

(2)

result in the destruction of evidence relevant to an investigation;

(3)

result in loss of or damage to Government property; or

(4)

otherwise jeopardize legitimate Government interests.

(g)

Reporting and records

(1)

In general

An agency shall keep a record of the placement of an employee in investigative leave or notice leave by the agency, including—

(A)

the basis for the determination made under subsection (c)(1);

(B)

an explanation of why an action under subsection (c)(2) was not appropriate;

(C)

the length of the period of leave;

(D)

the amount of salary paid to the employee during the period of leave;

(E)

the reasons for authorizing the leave, including, if applicable, the recommendation made by an investigator under subsection (d)(1); and

(F)

the action taken by the agency at the end of the period of leave, including, if applicable, the granting of any extension of a period of investigative leave.

(2)

Availability of records

An agency shall make a record kept under paragraph (1) available—

(A)

to any committee of Congress, upon request;

(B)

to the Office of Personnel Management; and

(C)

as otherwise required by law, including for the purposes of the Administrative Leave Act of 2016.

(h)

Regulations

(1)

OPM action

Not later than 1 year after the date of enactment of this section, the Director shall prescribe regulations to carry out this section, including guidance to agencies regarding—

(A)

acceptable purposes for the use of—

(i)

investigative leave; and

(ii)

notice leave;

(B)

the proper recording of—

(i)

the leave categories described in subparagraph (A); and

(ii)

other leave authorized by law;

(C)

baseline factors that an agency shall consider when making a determination that the continued presence of an employee in the workplace may—

(i)

pose a threat to the employee or others;

(ii)

result in the destruction of evidence relevant to an investigation;

(iii)

result in loss or damage to Government property; or

(iv)

otherwise jeopardize legitimate Government interests; and

(D)

procedures and criteria for the approval of an extension of a period of investigative leave under subsection (d) or (e).

(2)

Agency action

Not later than 1 year after the date on which the Director prescribes regulations under paragraph (1), each agency shall revise and implement the internal policies of the agency to meet the requirements of this section.

.

(b)

Personnel action

Section 2302(a)(2)(A) of title 5, United States Code, is amended—

(1)

in clause (xi), by striking and at the end;

(2)

by redesignating clause (xii) as clause (xiii); and

(3)

by inserting after clause (xi) the following:

(xii)

a determination made by an agency under section 6330(c)(1) that the continued presence of an employee in the workplace during an investigation of the employee or while the employee is in a notice period, if applicable, may—

(I)

pose a threat to the employee or others;

(II)

result in the destruction of evidence relevant to an investigation;

(III)

result in loss or damage to Government property; or

(IV)

otherwise jeopardize legitimate Government interests; and

.

(c)

GAO report

Not later than 5 years after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report evaluating the implementation of the authority provided under sections 6329 and 6330 of title 5, United States Code, as added by section 3(a) and subsection (a) of this section, respectively, including—

(1)

an assessment of agency use of the authority provided under subsection (e) of such section 6330, including data regarding—

(A)

the number and length of extensions granted under that subsection; and

(B)

the number of times that the Director of the Office of Personnel Management, under paragraph (3) of that subsection—

(i)

concurred with the decision of an agency to grant an extension; and

(ii)

did not concur with the decision of an agency to grant an extension, including the bases for those opinions of the Director;

(2)

recommendations to Congress, as appropriate, on the need for extensions beyond the extensions authorized under subsection (d) of such section 6330; and

(3)

a review of the practice of agency placement of an employee in investigative or notice leave under subsection (b) of such section 6330 because of a determination under subsection (c)(1)(D) of that section that the employee jeopardized legitimate Government interests, including whether any agency abused the authority of the agency by making such a placement when the placement based on such a determination was not justified.

(d)

Telework

Section 6502 of title 5, United States Code, is amended by adding at the end the following:

(c)

Required telework

If an agency determines under section 6330(c)(1) that the continued presence of an employee in the workplace during an investigation of the employee or while the employee is in a notice period, if applicable, may pose 1 or more of the threats described in that section and the employee is eligible to telework under subsections (a) and (b) of this section, the agency may require the employee to telework for the duration of the investigation or the notice period, if applicable.

.

(e)

Technical and conforming amendment

The table of sections for subchapter II of chapter 63 of title 5, United States Code, is amended by inserting after the item relating to section 6329, as added by this Act, the following:

6330. Investigative leave and notice leave.

.

5.

Leave for weather and safety issues

(a)

In general

Subchapter II of chapter 63 of title 5, United States Code, as amended by this Act, is further amended by adding at the end the following:

6331.

Weather and safety leave

(a)

Definitions

In this section—

(1)

the term agency—

(A)

means an Executive agency (as defined in section 105 of this title); and

(B)

does not include the Government Accountability Office; and

(2)

the term employee means an employee of an agency.

(b)

Leave for weather and safety issues

An agency may approve the provision of leave to an employee or a group of employees without loss of or reduction in the pay of the employee or employees, leave to which the employee or employees are otherwise entitled, or credit to the employee or employees for time or service only if the employee or group of employees is prevented from safely traveling to or performing work at an approved location due to—

(1)

an act of God;

(2)

a terrorist attack; or

(3)

another condition that prevents the employee or group of employees from safely traveling to or performing work at an approved location.

(c)

Records

An agency shall record leave provided under this section separately from leave authorized under any other provision of law.

(d)

Regulations

Not later than 1 year after the date of enactment of this section, the Director of the Office of Personnel Management shall prescribe regulations to carry out this section, including—

(1)

guidance to agencies regarding the appropriate purposes for providing leave under this section; and

(2)

the proper recording of leave provided under this section.

.

(b)

Technical and conforming amendment

The table of sections for subchapter II of chapter 63 of title 5, United States Code, is amended by inserting after the item relating to section 6330, as added by this Act, the following:

“6331. Weather and safety leave.”.

6.

Additional oversight

(a)

In general

Not later than 3 years after the date of enactment of this Act, the Director of the Office of Personnel Management shall complete a review of agency policies to determine whether agencies have complied with the requirements of this Act.

(b)

Report to Congress

Not later than 90 days after completing the review under subsection (a), the Director shall submit to Congress a report evaluating the results of the review.