Ask The Lawyer

By Debra Roth

Manage administrative leave wisely to cut costs

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Administrative leave, unlike sick leave and annual leave, is not specifically mentioned in statute or regulations governing federal employee benefits. It comes from two sources:

  • Administrative leave that is excused absence because of a natural disaster or other temporary and short-term need to be away from the workplace.
  • Administrative leave that applies to a specific federal employee who has come under scrutiny because of misconduct or some issue related to a security clearance.

If government offices shut down because of snow or an event like Hurricane Sandy, employees in the affected region will be on administrative leave with some exceptions. If you are an emergency worker or you have a telework agreement, you are expected to work. Those employees who are not expected to respond to the emergency or who have been excluded from the telework process get the day off without a charge to leave.

Granting this type of administrative leave is based on general authority to manage the workforce. In fact, one impetus for the increased emphasis on telework is to reduce the number of unproductive employees during a circumstance where it is not safe for employees to commute to work.

Ordinarily, this type of administrative leave is granted by an appropriate authority, which can be the Office of Personnel Management or a Federal Executive Board. It can also be granted by a supervisor with knowledge of circumstances that justify an excused absence with pay. It is generally used sparingly and for good cause.

The second type of administrative leave that focuses on a particular person, generally for misconduct, can be more controversial and unpleasant even if it means time off with pay for the affected employee.

The authority for administrative leave for misconduct comes from an OPM regulation that says an employee who faces disciplinary action ordinarily will remain in a duty status during the notice period before the action can be implemented. In rare circumstances — where the agency determines the employee’s presence endangers the employee or others, results in a loss of or damage to government property, or otherwise threatens legitimate government interests — the agency may engage in a series of actions including putting the employee in a paid non-duty status for as long as is necessary to effect the disciplinary action.

It seems clear from the way this regulation is written that administrative leave for disciplinary reasons is meant to be for a short time and to be used sparingly. The practice that has evolved is broader use, and in some cases the administrative leave — with pay — goes on for many months or even years.

The use of administrative leave has also expanded to security concerns. Someone whose security clearance is threatened can be placed on an indefinite suspension without pay, but doing this is more difficult under recent changes in precedent by the Merit Systems Protection Board because of new due process concerns. The result is an increased use of administrative leave while the security clearance issue is adjudicated.

The reaction of many human resources professionals and some Congress members is that the employee on administrative leave is getting a free vacation at taxpayer expense. The reaction of most employees on administrative leave is a tremendous feeling of discomfort and uncertainty, and a desire to know how the issues that led to the administrative leave will be resolved.

It does appear that agencies overuse the “other legitimate government interests” authorization to place and sometimes keep employees on administrative leave when it is not necessary. In a time when other employees are possibly being furloughed, agencies should closely monitor employees on administrative leave to process their personnel issues quickly.

The current “out of sight, out of mind” attitude should be replaced by one focusing on cost savings. This may mean prioritizing with the security clearance adjudication offices, but it is an area of cost savings that can be controlled more effectively. Also, the failure to control these costs might lead to unpleasant congressional oversight.

Current rules on administrative leave and their interpretation leave wide open who gets administrative leave and for how long in a misconduct situation. Officials who authorize or mandate administrative leave should take precautions to assure administrative leave for the shortest time necessary.

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