[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2450 Reported in Senate (RS)]
<DOC>
Calendar No. 545
114th CONGRESS
2d Session
S. 2450
[Report No. 114-292]
To amend title 5, United States Code, to address administrative leave
for Federal employees, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 20, 2016
Mr. Tester (for himself, Mr. Grassley, Mr. Johnson, Mr. Carper, Mr.
Lankford, and Mrs. McCaskill) introduced the following bill; which was
read twice and referred to the Committee on Homeland Security and
Governmental Affairs
July 6, 2016
Reported by Mr. Johnson, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to address administrative leave
for Federal employees, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Administrative Leave Act of
2016''.</DELETED>
<DELETED>SEC. 2. SENSE OF CONGRESS.</DELETED>
<DELETED> It is the sense of Congress that--</DELETED>
<DELETED> (1) agency use of administrative leave, and leave
that is referred to incorrectly as administrative leave in
agency recording practices, has exceeded reasonable amounts--
</DELETED>
<DELETED> (A) in contravention of--</DELETED>
<DELETED> (i) established precedent of the
Comptroller General of the United States;
and</DELETED>
<DELETED> (ii) guidance provided by the
Office of Personnel Management; and</DELETED>
<DELETED> (B) resulting in significant cost to the
Federal Government;</DELETED>
<DELETED> (2) administrative leave should be used
sparingly;</DELETED>
<DELETED> (3) prior to the use of administrative leave, an
agency should consider other actions, including--</DELETED>
<DELETED> (A) temporary reassignment;</DELETED>
<DELETED> (B) transfer; and</DELETED>
<DELETED> (C) telework;</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) the employee is returned to duty
status; or</DELETED>
<DELETED> (B) an appropriate personnel action is
taken with respect to the employee;</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) return to duty status; or</DELETED>
<DELETED> (B) challenge the decision of the
agency;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (7) other forms of excused absence authorized by
law should be recorded separately from administrative leave, as
defined by this Act.</DELETED>
<DELETED>SEC. 3. ADMINISTRATIVE LEAVE.</DELETED>
<DELETED> (a) In General.--Subchapter II of chapter 63 of title 5,
United States Code, is amended by adding at the end the
following:</DELETED>
<DELETED>``Sec. 6329. Administrative leave</DELETED>
<DELETED> ``(a) Definitions.--In this section--</DELETED>
<DELETED> ``(1) the term `administrative leave' means
leave--</DELETED>
<DELETED> ``(A) without loss of or reduction in--
</DELETED>
<DELETED> ``(i) pay;</DELETED>
<DELETED> ``(ii) leave to which an employee
is otherwise entitled under law; or</DELETED>
<DELETED> ``(iii) credit for time or
service; and</DELETED>
<DELETED> ``(B) that is not authorized under any
other provision of law;</DELETED>
<DELETED> ``(2) the term `agency'--</DELETED>
<DELETED> ``(A) means an Executive agency (as
defined in section 105 of this title); and</DELETED>
<DELETED> ``(B) does not include the Government
Accountability Office; and</DELETED>
<DELETED> ``(3) the term `employee' means an employee of an
agency.</DELETED>
<DELETED> ``(b) Administrative Leave.--</DELETED>
<DELETED> ``(1) In general.--An agency may not place an
employee in administrative leave for a period of more than 5
consecutive days.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(3) Records.--An agency shall record
administrative leave separately from leave authorized under any
other provision of law.</DELETED>
<DELETED> ``(c) Regulations.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) prescribe regulations to carry out
this section; and</DELETED>
<DELETED> ``(B) prescribe regulations that provide
guidance to agencies regarding--</DELETED>
<DELETED> ``(i) acceptable agency uses of
administrative leave; and</DELETED>
<DELETED> ``(ii) the proper recording of--
</DELETED>
<DELETED> ``(I) administrative
leave; and</DELETED>
<DELETED> ``(II) other leave
authorized by law.</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``6329. Administrative leave.''.
<DELETED>SEC. 4. INVESTIGATIVE LEAVE AND NOTICE LEAVE.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``Sec. 6330. Investigative leave and notice leave</DELETED>
<DELETED> ``(a) Definitions.--In this section--</DELETED>
<DELETED> ``(1) the term `agency'--</DELETED>
<DELETED> ``(A) means an Executive agency (as
defined in section 105 of this title);</DELETED>
<DELETED> ``(B) does not include the Government
Accountability Office; and</DELETED>
<DELETED> ``(C) for the purposes of notice leave,
means the employing agency of an employee covered under
chapter 75;</DELETED>
<DELETED> ``(2) the term `Chief Human Capital Officer'
means--</DELETED>
<DELETED> ``(A) the Chief Human Capital Officer of
an agency designated or appointed under section 1401;
or</DELETED>
<DELETED> ``(B) the equivalent;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(4) the term `Director' means the Director of
the Office of Personnel Management;</DELETED>
<DELETED> ``(5) the term `employee'--</DELETED>
<DELETED> ``(A) means an employee of an agency;
and</DELETED>
<DELETED> ``(B) does not include the Inspector
General of an agency;</DELETED>
<DELETED> ``(6) the term `investigative leave' means leave--
</DELETED>
<DELETED> ``(A) without loss of or reduction in--
</DELETED>
<DELETED> ``(i) pay;</DELETED>
<DELETED> ``(ii) leave to which an employee
is otherwise entitled under law; or</DELETED>
<DELETED> ``(iii) credit for time or
service;</DELETED>
<DELETED> ``(B) that is not authorized under any
other provision of law; and</DELETED>
<DELETED> ``(C) in which an employee who is the
subject of an investigation is placed;</DELETED>
<DELETED> ``(7) the term `notice leave' means leave--
</DELETED>
<DELETED> ``(A) without loss of or reduction in--
</DELETED>
<DELETED> ``(i) pay;</DELETED>
<DELETED> ``(ii) leave to which an employee
is otherwise entitled under law; or</DELETED>
<DELETED> ``(iii) credit for time or
service;</DELETED>
<DELETED> ``(B) that is not authorized under any
other provision of law; and</DELETED>
<DELETED> ``(C) in which an employee who is in a
notice period is placed; and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(b) Leave for Employees Under Investigation or in a
Notice Period.--</DELETED>
<DELETED> ``(1) Authority.--An agency may, in accordance
with paragraph (2), place an employee in--</DELETED>
<DELETED> ``(A) investigative leave if the employee
is the subject of an investigation;</DELETED>
<DELETED> ``(B) notice leave if the employee is in a
notice period; or</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(i) the agency proposes or
initiates an adverse action against the
employee; and</DELETED>
<DELETED> ``(ii) the agency determines that
the employee continues to meet 1 or more of the
criteria described in subsection
(c)(1).</DELETED>
<DELETED> ``(2) Requirements.--An agency may place an
employee in leave under paragraph (1) only if the agency has--
</DELETED>
<DELETED> ``(A) made a determination with respect to
the employee under subsection (c)(1);</DELETED>
<DELETED> ``(B) considered the available options for
the employee under subsection (c)(2); and</DELETED>
<DELETED> ``(C) determined that none of the
available options under subsection (c)(2) is
appropriate.</DELETED>
<DELETED> ``(c) Employees Under Investigation or in a Notice
Period.--</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(A) pose a threat to the employee or
others;</DELETED>
<DELETED> ``(B) result in the destruction of
evidence relevant to an investigation;</DELETED>
<DELETED> ``(C) result in loss of or damage to
Government property; or</DELETED>
<DELETED> ``(D) otherwise jeopardize legitimate
Government interests.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(A) Assigning the employee to duties in
which the employee is no longer a threat to--</DELETED>
<DELETED> ``(i) safety;</DELETED>
<DELETED> ``(ii) the mission of the
agency;</DELETED>
<DELETED> ``(iii) Government property;
or</DELETED>
<DELETED> ``(iv) evidence relevant to an
investigation.</DELETED>
<DELETED> ``(B) Allowing the employee to take leave
for which the employee is eligible.</DELETED>
<DELETED> ``(C) Requiring the employee to telework
under section 6502(c).</DELETED>
<DELETED> ``(D) If the employee has become absent
without requesting leave, carrying the employee in
absence without leave status.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(3) Duration of leave.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(B) Notice leave.--Placement of an
employee in notice leave shall be for a period not
longer than the duration of the notice
period.</DELETED>
<DELETED> ``(4) Explanation of leave.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(B) Explanation.--The written notice
under subparagraph (A) shall describe the limitations
of the leave placement, including--</DELETED>
<DELETED> ``(i) the applicable limitations
under paragraph (3); and</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) return the employee to regular duty
status;</DELETED>
<DELETED> ``(B) take 1 or more of the actions
authorized under paragraph (2), meaning--</DELETED>
<DELETED> ``(i) assigning the employee to
duties in which the employee is no longer a
threat to--</DELETED>
<DELETED> ``(I) safety;</DELETED>
<DELETED> ``(II) the mission of the
agency;</DELETED>
<DELETED> ``(III) Government
property; or</DELETED>
<DELETED> ``(IV) evidence relevant
to an investigation;</DELETED>
<DELETED> ``(ii) allowing the employee to
take leave for which the employee is
eligible;</DELETED>
<DELETED> ``(iii) requiring the employee to
telework under section 6502(c);</DELETED>
<DELETED> ``(iv) if the employee has become
absent without requesting leave, carrying the
employee in absence without leave status;
or</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(C) propose or initiate an adverse
action against the employee as provided under law;
or</DELETED>
<DELETED> ``(D) extend the period of investigative
leave under subsections (d) and (e).</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(d) Initial Extension of Investigative Leave.--
</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) Maximum number of extensions.--The total
period of additional investigative leave for an employee under
paragraph (1) may not exceed 110 days.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(4) Extensions for oig employees.--</DELETED>
<DELETED> ``(A) Approval.--In the case of an
employee of an Office of Inspector General--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(e) Further Extension of Investigative Leave.--
</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(A) committees of
jurisdiction;</DELETED>
<DELETED> ``(B) Committee on Homeland Security and
Governmental Affairs of the Senate; and</DELETED>
<DELETED> ``(C) Committee on Oversight and
Government Reform of the House of
Representatives.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(3) OPM review.--An agency shall request from
the Director, and include with the notification required under
paragraph (1), the opinion of the Director--</DELETED>
<DELETED> ``(A) with respect to whether to grant a
further extension under this subsection, including the
reasons for that opinion; and</DELETED>
<DELETED> ``(B) which shall not be binding on the
agency.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) pose a threat to the employee or
others;</DELETED>
<DELETED> ``(2) result in the destruction of evidence
relevant to an investigation;</DELETED>
<DELETED> ``(3) result in loss of or damage to Government
property; or</DELETED>
<DELETED> ``(4) otherwise jeopardize legitimate Government
interests.</DELETED>
<DELETED> ``(g) Reporting and Records.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) the basis for the determination made
under subsection (c)(1);</DELETED>
<DELETED> ``(B) an explanation of why an action
under subsection (c)(2) was not appropriate;</DELETED>
<DELETED> ``(C) the length of the period of
leave;</DELETED>
<DELETED> ``(D) the amount of salary paid to the
employee during the period of leave;</DELETED>
<DELETED> ``(E) the reasons for authorizing the
leave, including, if applicable, the recommendation
made by an investigator under subsection (d)(1);
and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) Availability of records.--An agency shall
make a record kept under paragraph (1) available--</DELETED>
<DELETED> ``(A) to any committee of Congress, upon
request;</DELETED>
<DELETED> ``(B) to the Office of Personnel
Management; and</DELETED>
<DELETED> ``(C) as otherwise required by law,
including for the purposes of the Administrative Leave
Act of 2016.</DELETED>
<DELETED> ``(h) Regulations.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) acceptable purposes for the use of--
</DELETED>
<DELETED> ``(i) investigative leave;
and</DELETED>
<DELETED> ``(ii) notice leave;</DELETED>
<DELETED> ``(B) the proper recording of--</DELETED>
<DELETED> ``(i) the leave categories
described in subparagraph (A); and</DELETED>
<DELETED> ``(ii) other leave authorized by
law;</DELETED>
<DELETED> ``(C) baseline factors that an agency
shall consider when making a determination that the
continued presence of an employee in the workplace
may--</DELETED>
<DELETED> ``(i) pose a threat to the
employee or others;</DELETED>
<DELETED> ``(ii) result in the destruction
of evidence relevant to an
investigation;</DELETED>
<DELETED> ``(iii) result in loss or damage
to Government property; or</DELETED>
<DELETED> ``(iv) otherwise jeopardize
legitimate Government interests; and</DELETED>
<DELETED> ``(D) procedures and criteria for the
approval of an extension of a period of investigative
leave under subsection (d) or (e).</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (b) Personnel Action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--</DELETED>
<DELETED> (1) in clause (xi), by striking ``and'' at the
end;</DELETED>
<DELETED> (2) by redesignating clause (xii) as clause
(xiii); and</DELETED>
<DELETED> (3) by inserting after clause (xi) the
following:</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(I) pose a threat to the
employee or others;</DELETED>
<DELETED> ``(II) result in the destruction
of evidence relevant to an
investigation;</DELETED>
<DELETED> ``(III) result in loss or damage
to Government property; or</DELETED>
<DELETED> ``(IV) otherwise jeopardize
legitimate Government interests;
and''.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (1) an assessment of agency use of the authority
provided under subsection (e) of such section 6330, including
data regarding--</DELETED>
<DELETED> (A) the number and length of extensions
granted under that subsection; and</DELETED>
<DELETED> (B) the number of times that the Director
of the Office of Personnel Management, under paragraph
(3) of that subsection--</DELETED>
<DELETED> (i) concurred with the decision of
an agency to grant an extension; and</DELETED>
<DELETED> (ii) did not concur with the
decision of an agency to grant an extension,
including the bases for those opinions of the
Director;</DELETED>
<DELETED> (2) recommendations to Congress, as appropriate,
on the need for extensions beyond the extensions authorized
under subsection (d) of such section 6330; and</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (d) Telework.--Section 6502 of title 5, United States
Code, is amended by adding at the end the following:</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``6330. Investigative leave and notice leave.''.
<DELETED>SEC. 5. LEAVE FOR WEATHER AND SAFETY ISSUES.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``Sec. 6331. Weather and safety leave</DELETED>
<DELETED> ``(a) Definitions.--In this section--</DELETED>
<DELETED> ``(1) the term `agency'--</DELETED>
<DELETED> ``(A) means an Executive agency (as
defined in section 105 of this title); and</DELETED>
<DELETED> ``(B) does not include the Government
Accountability Office; and</DELETED>
<DELETED> ``(2) the term `employee' means an employee of an
agency.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) an act of God;</DELETED>
<DELETED> ``(2) a terrorist attack; or</DELETED>
<DELETED> ``(3) another condition that prevents the employee
or group of employees from safely traveling to or performing
work at an approved location.</DELETED>
<DELETED> ``(c) Records.--An agency shall record leave provided
under this section separately from leave authorized under any other
provision of law.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) guidance to agencies regarding the
appropriate purposes for providing leave under this section;
and</DELETED>
<DELETED> ``(2) the proper recording of leave provided under
this section.''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``6331. Weather and safety leave.''.
<DELETED>SEC. 6. ADDITIONAL OVERSIGHT.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Administrative Leave Act of 2016''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) agency use of administrative leave, and leave that is
referred to incorrectly as administrative leave in agency
recording practices, has exceeded reasonable amounts--
(A) in contravention of--
(i) established precedent of the
Comptroller General of the United States; and
(ii) guidance provided by the Office of
Personnel Management; and
(B) resulting in significant cost to the Federal
Government;
(2) administrative leave should be used sparingly;
(3) prior to the use of paid leave to address personnel
issues, an agency should consider other actions, including--
(A) temporary reassignment;
(B) transfer; and
(C) telework;
(4) an agency should prioritize and expeditiously conclude
an investigation in which an employee is placed in
administrative leave so that, not later than the conclusion of
the leave period--
(A) the employee is returned to duty status; or
(B) an appropriate personnel action is taken with
respect to the employee;
(5) data show that there are too many examples of employees
placed in administrative leave for 6 months or longer, leaving
the employees without any available recourse to--
(A) return to duty status; or
(B) challenge the decision of the agency;
(6) an agency should ensure accurate and consistent
recording of the use of administrative leave so that
administrative leave can be managed and overseen effectively;
and
(7) other forms of excused absence authorized by law should
be recorded separately from administrative leave, as defined by
the amendments made by this Act.
SEC. 3. ADMINISTRATIVE LEAVE.
(a) In General.--Subchapter II of chapter 63 of title 5, United
States Code, is amended by adding at the end the following:
``Sec. 6330. Administrative leave
``(a) Definitions.--In this section--
``(1) the term `administrative leave' means leave--
``(A) without loss of or reduction in--
``(i) pay;
``(ii) leave to which an employee is
otherwise entitled under law; or
``(iii) credit for time or service; and
``(B) that is not authorized under any other
provision of law;
``(2) the term `agency'--
``(A) means an Executive agency (as defined in
section 105 of this title); and
``(B) does not include the Government
Accountability Office; and
``(3) the term `employee'--
``(A) has the meaning given the term in section
2105; and
``(B) does not include an intermittent employee who
does not have an established regular tour of duty
during the administrative workweek.
``(b) Administrative Leave.--
``(1) In general.--An agency may place an employee in
administrative leave for a period of not more than 5
consecutive days.
``(2) Rule of construction.--Nothing in paragraph (1) shall
be construed to limit the use of leave that is--
``(A) specifically authorized under law; and
``(B) not administrative leave.
``(3) Records.--An agency shall record administrative leave
separately from leave authorized under any other provision of
law.
``(c) Regulations.--
``(1) OPM regulations.--Not later than 1 year after the
date of enactment of this section, the Director of the Office
of Personnel Management shall--
``(A) prescribe regulations to carry out this
section; and
``(B) prescribe regulations that provide guidance
to agencies regarding--
``(i) acceptable agency uses of
administrative leave; and
``(ii) the proper recording of--
``(I) administrative leave; and
``(II) other leave authorized by
law.
``(2) Agency action.--Not later than 1 year after the date
on which the Director of the Office of Personnel Management
prescribes regulations under paragraph (1), each agency shall
revise and implement the internal policies of the agency to
meet the requirements of this section.
``(d) Relation to Other Laws.--Notwithstanding subsection (a) of
section 7421 of title 38, this section shall apply to an employee
described in subsection (b) of that section.''.
(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, as of the date
of enactment of this Act, of placing an employee in administrative
leave for more than 5 consecutive days when the placement was not
specifically authorized by law.
(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 6329 the following:
``6330. Administrative leave.''.
SEC. 4. INVESTIGATIVE LEAVE AND NOTICE LEAVE.
(a) In General.--Subchapter II of chapter 63 of title 5, United
States Code, as amended by this Act, is further amended by adding at
the end the following:
``Sec. 6330a. Investigative leave and notice leave
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) means an Executive agency (as defined in
section 105 of this title); and
``(B) does not include the Government
Accountability Office;
``(2) the term `Chief Human Capital Officer' means--
``(A) the Chief Human Capital Officer of an agency
designated or appointed under section 1401; or
``(B) the equivalent;
``(3) the term `committees of jurisdiction', with respect
to an agency, means each committee in the Senate and House of
Representatives with jurisdiction over the agency;
``(4) the term `Director' means the Director of the Office
of Personnel Management;
``(5) the term `employee'--
``(A) has the meaning given the term in section
2105; and
``(B) does not include--
``(i) an intermittent employee who does not
have an established regular tour of duty during
the administrative workweek; or
``(ii) the Inspector General of an agency;
``(6) the term `investigative leave' means leave--
``(A) without loss of or reduction in--
``(i) pay;
``(ii) leave to which an employee is
otherwise entitled under law; or
``(iii) credit for time or service;
``(B) that is not authorized under any other
provision of law; and
``(C) in which an employee who is the subject of an
investigation is placed;
``(7) the term `notice leave' means leave--
``(A) without loss of or reduction in--
``(i) pay;
``(ii) leave to which an employee is
otherwise entitled under law; or
``(iii) credit for time or service;
``(B) that is not authorized under any other
provision of law; and
``(C) in which an employee who is in a notice
period is placed; and
``(8) the term `notice period' means a period beginning on
the date on which an employee is provided notice required under
law of a proposed adverse action against the employee and
ending on the date on which an agency may take the adverse
action.
``(b) Leave for Employees Under Investigation or in a Notice
Period.--
``(1) Authority.--An agency may, in accordance with
paragraph (2), place an employee in--
``(A) investigative leave if the employee is the
subject of an investigation;
``(B) notice leave if the employee is in a notice
period; or
``(C) notice leave following a placement in
investigative leave if, not later than the day after
the last day of the period of investigative leave--
``(i) the agency proposes or initiates an
adverse action against the employee; and
``(ii) the agency determines that the
employee continues to meet 1 or more of the
criteria described in subsection (c)(1).
``(2) Requirements.--An agency may place an employee in
leave under paragraph (1) only if the agency has--
``(A) made a determination with respect to the
employee under subsection (c)(1);
``(B) considered the available options for the
employee under subsection (c)(2); and
``(C) determined that none of the available options
under subsection (c)(2) is appropriate.
``(c) Employees Under Investigation or in a Notice Period.--
``(1) Determinations.--An agency may not place an employee
in investigative leave or notice leave under subsection (b)
unless the continued presence of the employee in the workplace
during an investigation of the employee or while the employee
is in a notice period, if applicable, may--
``(A) pose a threat to the employee or others;
``(B) result in the destruction of evidence
relevant to an investigation;
``(C) result in loss of or damage to Government
property; or
``(D) otherwise jeopardize legitimate Government
interests.
``(2) Available options for employees under investigation
or in a notice period.--After making a determination under
paragraph (1) with respect to an employee, and before placing
an employee in investigative leave or notice leave under
subsection (b), an agency shall consider taking 1 or more of
the following actions:
``(A) Assigning the employee to duties in which the
employee is no longer a threat to--
``(i) safety;
``(ii) the mission of the agency;
``(iii) Government property; or
``(iv) evidence relevant to an
investigation.
``(B) Allowing the employee to take leave for which
the employee is eligible.
``(C) Requiring the employee to telework under
section 6502(c).
``(D) If the employee is absent from duty without
approved leave, carrying the employee in absence
without leave status.
``(E) For an employee subject to a notice period,
curtailing the notice period if there is reasonable
cause to believe the employee has committed a crime for
which a sentence of imprisonment may be imposed.
``(3) Duration of leave.--
``(A) Investigative leave.--Subject to extensions
of a period of investigative leave for which an
employee may be eligible under subsections (d) and (e),
the initial placement of an employee in investigative
leave shall be for a period not longer than 10 days.
``(B) Notice leave.--Placement of an employee in
notice leave shall be for a period not longer than the
duration of the notice period.
``(4) Explanation of leave.--
``(A) In general.--If an agency places an employee
in leave under subsection (b), the agency shall provide
the employee a written explanation of the leave
placement and the reasons for the leave placement.
``(B) Explanation.--The written notice under
subparagraph (A) shall describe the limitations of the
leave placement, including--
``(i) the applicable limitations under
paragraph (3); and
``(ii) in the case of a placement in
investigative leave, an explanation that, at
the conclusion of the period of leave, the
agency shall take an action under paragraph
(5).
``(5) Agency action.--Not later than the day after the last
day of a period of investigative leave for an employee under
subsection (b)(1), an agency shall--
``(A) return the employee to regular duty status;
``(B) take 1 or more of the actions authorized
under paragraph (2), meaning--
``(i) assigning the employee to duties in
which the employee is no longer a threat to--
``(I) safety;
``(II) the mission of the agency;
``(III) Government property; or
``(IV) evidence relevant to an
investigation;
``(ii) allowing the employee to take leave
for which the employee is eligible;
``(iii) requiring the employee to telework
under section 6502(c);
``(iv) if the employee is absent from duty
without approved leave, carrying the employee
in absence without leave status; or
``(v) for an employee subject to a notice
period, curtailing the notice period if there
is reasonable cause to believe the employee has
committed a crime for which a sentence of
imprisonment may be imposed;
``(C) propose or initiate an adverse action against
the employee as provided under law; or
``(D) extend the period of investigative leave
under subsections (d) and (e).
``(6) Rule of construction.--Nothing in paragraph (5) shall
be construed to prevent the continued investigation of an
employee, except that the placement of an employee in
investigative leave may not be extended for that purpose except
as provided in subsections (d) and (e).
``(d) Initial Extension of Investigative Leave.--
``(1) In general.--Subject to paragraph (4), if the Chief
Human Capital Officer of an agency, or the designee of the
Chief Human Capital Officer, approves such an extension after
consulting with the investigator responsible for conducting the
investigation to which an employee is subject, the agency may
extend the period of investigative leave for the employee under
subsection (b) for not more than 30 days.
``(2) Maximum number of extensions.--The total period of
additional investigative leave for an employee under paragraph
(1) may not exceed 110 days.
``(3) Designation guidance.--Not later than 1 year after
the date of enactment of this section, the Chief Human Capital
Officers Council shall issue guidance to ensure that if the
Chief Human Capital Officer of an agency delegates the
authority to approve an extension under paragraph (1) to a
designee, the designee is at a sufficiently high level within
the agency to make an impartial and independent determination
regarding the extension.
``(4) Extensions for oig employees.--
``(A) Approval.--In the case of an employee of an
Office of Inspector General--
``(i) the Inspector General or the designee
of the Inspector General, rather than the Chief
Human Capital Officer or the designee of the
Chief Human Capital Officer, shall approve an
extension of a period of investigative leave
for the employee under paragraph (1); or
``(ii) at the request of the Inspector
General, the head of the agency within which
the Office of Inspector General is located
shall designate an official of the agency to
approve an extension of a period of
investigative leave for the employee under
paragraph (1).
``(B) Guidance.--Not later than 1 year after the
date of enactment of this section, the Council of the
Inspectors General on Integrity and Efficiency shall
issue guidance to ensure that if the Inspector General
or the head of an agency, at the request of the
Inspector General, delegates the authority to approve
an extension under subparagraph (A) to a designee, the
designee is at a sufficiently high level within the
Office of Inspector General or the agency, as
applicable, to make an impartial and independent
determination regarding the extension.
``(e) Further Extension of Investigative Leave.--
``(1) In general.--After reaching the limit under
subsection (d)(2), an agency may further extend a period of
investigative leave for an employee for a period of not more
than 60 days if, before the further extension begins, the head
of the agency or, in the case of an employee of an Office of
Inspector General, the Inspector General submits a notification
that includes the reasons for the further extension to the--
``(A) committees of jurisdiction;
``(B) Committee on Homeland Security and
Governmental Affairs of the Senate; and
``(C) Committee on Oversight and Government Reform
of the House of Representatives.
``(2) No limit.--There shall be no limit on the number of
further extensions that an agency may grant to an employee
under paragraph (1).
``(3) OPM review.--An agency shall request from the
Director, and include with the notification required under
paragraph (1), the opinion of the Director--
``(A) with respect to whether to grant a further
extension under this subsection, including the reasons
for that opinion; and
``(B) which shall not be binding on the agency.
``(4) Sunset.--The authority provided under this subsection
shall expire on the date that is 6 years after the date of
enactment of this section.
``(f) Consultation Guidance.--Not later than 1 year after the date
of enactment of this section, the Council of the Inspectors General on
Integrity and Efficiency, in consultation with the Attorney General and
the Special Counsel, shall issue guidance on best practices for
consultation between an investigator and an agency on the need to place
an employee in investigative leave during an investigation of the
employee, including during a criminal investigation, because the
continued presence of the employee in the workplace during the
investigation may--
``(1) pose a threat to the employee or others;
``(2) result in the destruction of evidence relevant to an
investigation;
``(3) result in loss of or damage to Government property;
or
``(4) otherwise jeopardize legitimate Government interests.
``(g) Reporting and Records.--
``(1) In general.--An agency shall keep a record of the
placement of an employee in investigative leave or notice leave
by the agency, including--
``(A) the basis for the determination made under
subsection (c)(1);
``(B) an explanation of why an action under
subsection (c)(2) was not appropriate;
``(C) the length of the period of leave;
``(D) the amount of salary paid to the employee
during the period of leave;
``(E) the reasons for authorizing the leave,
including, if applicable, the recommendation made by an
investigator under subsection (d)(1); and
``(F) the action taken by the agency at the end of
the period of leave, including, if applicable, the
granting of any extension of a period of investigative
leave under subsection (d) or (e).
``(2) Availability of records.--An agency shall make a
record kept under paragraph (1) available--
``(A) to any committee of Congress, upon request;
``(B) to the Office of Personnel Management; and
``(C) as otherwise required by law, including for
the purposes of the Administrative Leave Act of 2016
and the amendments made by that Act.
``(h) Regulations.--
``(1) OPM action.--Not later than 1 year after the date of
enactment of this section, the Director shall prescribe
regulations to carry out this section, including guidance to
agencies regarding--
``(A) acceptable purposes for the use of--
``(i) investigative leave; and
``(ii) notice leave;
``(B) the proper recording of--
``(i) the leave categories described in
subparagraph (A); and
``(ii) other leave authorized by law;
``(C) baseline factors that an agency shall
consider when making a determination that the continued
presence of an employee in the workplace may--
``(i) pose a threat to the employee or
others;
``(ii) result in the destruction of
evidence relevant to an investigation;
``(iii) result in loss or damage to
Government property; or
``(iv) otherwise jeopardize legitimate
Government interests; and
``(D) procedures and criteria for the approval of
an extension of a period of investigative leave under
subsection (d) or (e).
``(2) Agency action.--Not later than 1 year after the date
on which the Director prescribes regulations under paragraph
(1), each agency shall revise and implement the internal
policies of the agency to meet the requirements of this
section.
``(i) Relation to Other Laws.--Notwithstanding subsection (a) of
section 7421 of title 38, this section shall apply to an employee
described in subsection (b) of that section.''.
(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 6330a(c)(1) that the continued presence of an
employee in the workplace during an investigation of
the employee or while the employee is in a notice
period, if applicable, may--
``(I) pose a threat to the employee or
others;
``(II) result in the destruction of
evidence relevant to an investigation;
``(III) result in loss of or damage to
Government property; or
``(IV) otherwise jeopardize legitimate
Government interests; and''.
(c) GAO Report.--Not later than 5 years after the date of enactment
of this Act, the Comptroller General of the United States shall report
to the Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Oversight and Government Reform of the
House of Representatives on the results of an evaluation of the
implementation of the authority provided under sections 6330 and 6330a
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 6330a, 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 6330a; and
(3) a review of the practice of agency placement of an
employee in investigative or notice leave under subsection (b)
of such section 6330a because of a determination under
subsection (c)(1)(D) of that section that the employee
jeopardized legitimate Government interests, including the
extent to which such determinations were supported by evidence.
(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
6330a(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 6330, as added by this
Act, the following:
``6330a. Investigative leave and notice leave.''.
SEC. 5. LEAVE FOR WEATHER AND SAFETY ISSUES.
(a) In General.--Subchapter II of chapter 63 of title 5, United
States Code, as amended by this Act, is further amended by adding at
the end the following:
``Sec. 6330b. Weather and safety leave
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) means an Executive agency (as defined in
section 105 of this title); and
``(B) does not include the Government
Accountability Office; and
``(2) the term `employee'--
``(A) has the meaning given the term in section
2105; and
``(B) does not include an intermittent employee who
does not have an established regular tour of duty
during the administrative workweek.
``(b) Leave for Weather and Safety Issues.--An agency may approve
the provision of leave under this section to an employee or a group of
employees without loss of or reduction in the pay of the employee or
employees, leave to which the employee or employees are otherwise
entitled, or credit to the employee or employees for time or service
only if the employee or group of employees is prevented from safely
traveling to or performing work at an approved location due to--
``(1) an act of God;
``(2) a terrorist attack; or
``(3) another condition that prevents the employee or group
of employees from safely traveling to or performing work at an
approved location.
``(c) Records.--An agency shall record leave provided under this
section separately from leave authorized under any other provision of
law.
``(d) Regulations.--Not later than 1 year after the date of
enactment of this section, the Director of the Office of Personnel
Management shall prescribe regulations to carry out this section,
including--
``(1) guidance to agencies regarding the appropriate
purposes for providing leave under this section; and
``(2) the proper recording of leave provided under this
section.
``(e) Relation to Other Laws.--Notwithstanding subsection (a) of
section 7421 of title 38, this section shall apply to an employee
described in subsection (b) of that section.''.
(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 6330a, as added by this
Act, the following:
``6330b. Weather and safety leave.''.
SEC. 6. ADDITIONAL OVERSIGHT.
(a) In General.--Not later than 3 years after the date of enactment
of this Act, the Director of the Office of Personnel Management shall
complete a review of agency policies to determine whether agencies have
complied with the requirements of this Act and the amendments made by
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.
Calendar No. 545
114th CONGRESS
2d Session
S. 2450
[Report No. 114-292]
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to address administrative leave
for Federal employees, and for other purposes.
_______________________________________________________________________
July 6, 2016
Reported with an amendment