```

[Senate Report 114-292]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 545
114th Congress     }                                    {       Report
                                 SENATE
 2d Session        }                                    {      114-292                        
_______________________________________________________________________

                                     

                                                      

                    ADMINISTRATIVE LEAVE ACT OF 2016

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2450

            TO AMEND TITLE 5, UNITED STATES CODE, TO ADDRESS
   ADMINISTRATIVE LEAVE FOR FEDERAL EMPLOYEES, AND FOR OTHER PURPOSES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  July 6, 2016.--Ordered to be printed
                  
                  
                  
                                    ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

59-010                         WASHINGTON : 2016                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
       John A. Kane, Minority Senior Governmental Affairs Advisor
                     Laura W. Kilbride, Chief Clerk

                                                      Calendar No. 545
114th Congress    }                                     {       Report
                                 SENATE
 2d Session       }                                     {      114-292

======================================================================

 
                    ADMINISTRATIVE LEAVE ACT OF 2016

                                _______
                                

                  July 6, 2016.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2450]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2450), to amend 
title 5, United States Code, to address administrative leave 
for Federal employees, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill, as amended, do pass.

                                CONTENTS

                                                                   Page
   I. Purpose and Summary.............................................1
  II. Background and Need for the Legislation.........................2
 III. Legislative History.............................................8
  IV. Section-by-Section Analysis.....................................9
   V. Evaluation of Regulatory Impact................................12
  VI. Congressional Budget Office Cost Estimate......................12
 VII. Changes in Existing Law Made by the Bill, as Reported..........13

                         I. Purpose and Summary

    S. 2450, the Administrative Leave Act of 2016, defines 
``administrative leave'' for the first time in Federal statute, 
limits the broad variation of its use by Federal agencies, and 
encourages Federal agencies to use administrative leave only as 
a last resort by utilizing tools like temporary reassignment or 
telework arrangements where possible. Given the lack of 
uniformity of the use of administrative leave across the 
Federal Government and the cost to the taxpayers of its abuse 
by some agencies, this bill also requires agencies to keep 
better accounting of when they use administrative leave and 
other forms of non-duty paid leave.

              II. Background and the Need for Legislation

Current law

    Administrative leave is the term used to describe a Federal 
employee's excused absence from work that is typically without 
loss of pay, and without charge to other types of leave the 
employee is statutorily granted.\1\ There is no specific 
statutory authority for an agency to grant administrative 
leave; however, the Office of Personnel Management (OPM) has 
issued multiple forms of guidance on its use.\2\ In addition, 
in some cases, Congress has legislatively authorized certain 
types of non-duty paid leave.\3\
---------------------------------------------------------------------------
    \1\Gov't Accountability Office, GAO-15-79, Federal Paid 
Administrative Leave: Additional Guidance Needed To Improve OPM Data 3 
(Oct. 2014), available at http://www.gao.gov/assets/670/666566.pdf 
[hereinafter Federal Paid Administrative Leave].
    \2\Id. at 3-8. OPM has also claimed that authority to grant an 
excused absence derives from the inherent authority for heads of 
agencies to prescribe regulations for the government of their 
organizations under 5 U.S.C. Sec. Sec. 301-302. See Pay & Leave, Fact 
Sheet: Administrative Leave, OPM.gov, https://www.opm.gov/policy-data-
oversight/pay-leave/leave-administration/fact-sheets/administrative-
leave/ (last visited June 29, 2016).
    \3\Federal Paid Administrative Leave at 13-14 (citing 5 U.S.C. 
Sec. Sec. 6326, 6328, 6321 (military, law enforcement and firefighter 
funerals); 5 U.S.C. Sec. 6327 (bone-marrow donors and organ donors); 5 
U.S.C. Sec. 6325 (employees injured by hostile action while serving 
abroad)).
---------------------------------------------------------------------------
    Federal regulations issued by OPM provide that paid leave 
may be permissible in situations where another type of leave, 
such as sick or annual leave, would be inappropriate like an 
absence for just an hour, as opposed to half a day;\4\ where 
employees are granted excused absence from the agency;\5\ and 
where an employee's presence in the workplace is considered 
threatening to individuals or government property, or could 
otherwise jeopardize a legitimate government interest and an 
action--a removal or suspension--has been proposed against the 
employee.\6\
---------------------------------------------------------------------------
    \4\5 C.F.R. Sec. 630.206.
    \5\5 C.F.R. Sec. 610.301 et seq.
    \6\5 U.S.C. Sec. Sec. 7513(a) and 7514; 5 C.F.R. 
Sec. Sec. 752.404(b)(3) and 752.604(b)(2).
---------------------------------------------------------------------------
    Additionally, OPM has issued guidance to agencies through 
memoranda and media that discuss appropriate circumstances for 
the use of administrative leave in broad terms. As summarized 
by the Government Accountability Office (GAO),

          OPM provides that the use of administrative leave 
        should be limited to those circumstances in which the 
        employee's absence is not specifically prohibited by 
        law and satisfies one or more of the following 
        criteria: (1) it is directly related to the agency's 
        mission, (2) it is officially sponsored or sanctioned 
        by the head of the agency, (3) it will clearly enhance 
        professional development or skills of the employee in 
        his or her current position, or (4) it is brief and 
        determined to be in the interest of the agency.\7\
---------------------------------------------------------------------------
    \7\Federal Paid Administrative Leave at 5; See Pay & Leave, Fact 
Sheet: Administrative Leave, OPM.gov, https://www.opm.gov/policy-data-
oversight/pay-leave/leave-administration/fact-sheets/administrative-
leave/ (last visited June 29, 2016).

    Some situations have been explicitly discussed and green-
lighted by OPM in guidance. For example, OPM says agencies may 
count voting, donating blood, taking work-required 
examinations, or attending conventions as administrative 
leave.\8\ More recently, OPM issued guidance to agencies on the 
use of administrative leave that addressed administrative leave 
related to unacceptable performance and misconduct. Like its 
regulation on administrative leave after an adverse action has 
been proposed, the guidance provides that an agency may place 
an employee in paid, non-duty status during an investigation 
``when the agency believes the employee poses a threat to his 
own safety or the safety of others, the agency mission, or 
Government systems or property while the investigation is 
pending,'' and that ``[w]here absences are for longer than 
brief periods, administrative leave is generally 
inappropriate.''\9\
---------------------------------------------------------------------------
    \8\See Pay & Leave, Fact Sheet: Administrative Leave, OPM.gov, 
https://www.opm.gov/policy-data-oversight/pay-leave/leave-
administration/fact-sheets/administrative-leave/ (last visited June 29, 
2016).
    \9\Id.
---------------------------------------------------------------------------
    The Merit Systems Protection Board and the Federal Labor 
Relations Authority have similarly found that agency use of 
administrative leave should be a ``short-term,''\10\ brief, or 
occasional\11\ solution. OPM has also provided guidance that, 
in the case of workplace violence, administrative leave may be 
necessary but should be ``an immediate, temporary solution'' 
and the agency should seek a ``longer-term'' action.\12\ The 
GAO has concluded that ``administrative leave for lengthy 
periods of time is inappropriate unless it is in connection 
with furthering a function of the agency.''\13\
---------------------------------------------------------------------------
    \10\Brown v. United States Postal Service, 64 M.S.P.R. 425, 431 
(1994); Miller v. Dep't of Defense, 45 M.S.P.R. 263, 266 (1990); To the 
Chairman, U.S. Civil Service Commission, 38 Comp. Gen. 203 (1958).
    \11\United States Dep't of the Air Force & Sport Air Traffic 
Controllers Organization, 65 F.L.R.A 387 (2010).
    \12\OPM, Dealing with Workplace Violence: A Guide for Agency 
Planners 106 (1998), available at https://www.opm.gov/policy-data-
oversight/worklife/reference-materials/workplaceviolence.pdf.
    \13\Federal Paid Administrative Leave at 7.
---------------------------------------------------------------------------
    Missing from current law, however, is detailed statutory 
direction on appropriate purposes for the use of administrative 
leave. Nor is there a statutory limit on the amount of time a 
Federal employee may be placed on administrative leave. In the 
absence of this congressional direction, these decisions have 
always been left to the discretion of the agency, are subject 
to abuse and wide variations in agency practice.

Committee oversight

    Agency use of administrative leave is rarely public. 
However, in 2012, the Inspector General for the National 
Archives, Paul Brachfeld, was placed on administrative leave by 
the Archivist in response to allegations of wrongdoing against 
him.\14\ Mr. Brachfeld remained on administrative leave for two 
years, stirring a conversation about the proper use of such 
leave.\15\ His prolonged paid leave cost taxpayers $300,000 in 
salary and several hundred thousand dollars in legal fees.\16\
---------------------------------------------------------------------------
    \14\Report of Administrative Investigation for the Council of the 
Inspectors General on Integrity and Efficiency (Mar. 28, 2014), 
available at http://www.govexec.com/media/gbc/docs/pdfs_edit/
080514cc1.pdf.
    \15\Lisa Rein, Embattled National Archives IG to retire after probe 
finds misconduct, Wash. Post (Aug. 4, 2014), https://
www.washingtonpost.com/news/federal-eye/wp/2014/08/04/embattled-
national-archives-ig-to-retire-after-probe-finds-misconduct/.
    \16\Report of Administrative Investigation for the Council of the 
Inspectors General on Integrity and Efficiency (Mar. 28, 2014), 
available at http://www.govexec.com/media/gbc/docs/pdfs_edit/
080514cc1.pdf.; Letter from Charles E. Grassley, Darrell Issa, and Tom 
A. Coburn to The Honorable David S. Ferriero, Feb. 21, 2014.
---------------------------------------------------------------------------
    This Committee, along with the Committee on Oversight and 
Government Reform in the House of Representatives and then-
Ranking Member of the Senate Committee on the Judiciary Charles 
Grassley wrote a letter to the Archivist in February 2014 
questioning the Archivist's decision and raising concerns that 
the extended administrative leave threatened the inspector 
general's independence from the agency.\17\ This work resulted 
in legislation in 2015, led by Senators Charles Grassley, 
Claire McCaskill, and Ron Johnson, to address the use of 
administrative leave as it relates to inspectors general.\18\
---------------------------------------------------------------------------
    \17\Letter from Charles E. Grassley, Darrell Issa, and Tom A. 
Coburn to The Honorable David S. Ferriero, Feb. 21, 2014 (on file with 
Comm. staff).
    \18\S. 579, the Inspector General Empowerment Act of 2015 (114th 
Cong.).
---------------------------------------------------------------------------
    In 2013, then-Ranking Member of the Committee Tom Coburn, 
Senator Grassley, and then-Chairman of the Committee on 
Oversight and Government Reform, Darrell Issa, asked the GAO to 
examine how agencies use paid administrative leave.\19\ As a 
result of that request, the GAO issued a public report on the 
use of administrative leave in October 2014.\20\ The GAO issued 
another report, this time focused just on the use of 
administrative leave at the Department of Homeland Security 
(DHS), in March 2016.\21\ In addition to the GAO's reviews of 
administrative leave, Senator Grassley solicited responses from 
eighteen agencies with detailed information on their use of 
administrative leave, and issued a memorandum of his staff's 
findings from those responses in November 2015.\22\ The 
remainder of this Committee Report summarizes the findings of 
these reports and the responses from agencies and explains how 
S. 2450 addresses the issues raised therein.
---------------------------------------------------------------------------
    \19\Federal Paid Administrative Leave.
    \20\Id.
    \21\Gov't Accountability Office, GAO-16-342, Administrative Leave: 
Evaluation of DHS'S New Policy Can Help Identify Progress Toward 
Reducing Leave Use (Mar. 2016), available at http://www.gao.gov/assets/
680/676011.pdf [hereinafter Administrative Leave: Evaluation of DHS].
    \22\Memorandum from Senate Judiciary Committee, Oversight and 
Investigations Staff for Senator Charles E. Grassley to the Committee 
on the Judiciary, United States Senate, et. al 4-5 (Nov. 30, 2015), 
available at http://www.grassley.senate.gov/sites/default/files/news/
upload/Use%20of%20Admin%20leave.pdf [hereinafter Senator Grassley Staff 
Administrative Leave Memorandum]. Inquiries to seventeen agencies were 
sent by Senators Grassley and Issa; two inquiries were sent by Senator 
Grassley. One agency, the Department of Defense, failed to respond and 
three additional agencies--the Departments of Agriculture, Commerce, 
and Energy--provided incomplete responses to our requests.
---------------------------------------------------------------------------
    Lack of Documentation and Consistency The 2013 GAO report 
found that ``agencies'' policies on paid administrative leave 
differ,'' including the way agencies record paid administrative 
leave.\23\ The inconsistent policies and varying data across 
agencies resulted in GAO concluding that the Federal 
Government's use of administrative leave is inadequately 
documented, data on its use is ``inaccurate and inconsistent,'' 
and that ``[a]s a result, OPM does not have an accurate measure 
on the use of paid administrative leave across federal agencies 
that can be used to inform decision makers on the use of paid 
administrative leave.''\24\
---------------------------------------------------------------------------
    \23\Federal Paid Administrative Leave at 15.
    \24\Id. at 31.
---------------------------------------------------------------------------
    Additionally, Senator Grassley's staff report found that 
the lack of clear statutory limits and guidelines on the use of 
administrative leave has led to inconsistent practices at 
different agencies.

          For example, the VA permits employees to use 
        administrative leave for labor organization and 
        educational activities, while Interior uses it to 
        enable teachers and educational support staff to be 
        paid a prorated, consistent amount during school 
        breaks. Some agencies, such as HUD and NASA, do not 
        even use the term ``administrative leave.'' Instead, 
        HUD issues ``excused absence'' and NASA grants 
        employees ``excused leave.'' HUD's policy notes that 
        ``excused absence'' is absence from duty that is 
        administratively authorized, without loss of pay and 
        without charge to leave. At NASA, ``Center Directors or 
        their designees may determine administratively other 
        situations in which employees may be excused from duty 
        without charge to leave.'' These ``other situations'' 
        include ``plac[ing] employees on excused leave prior to 
        affecting an adverse action to avoid workplace 
        disruption during the interim period.'' Although NASA 
        and HUD do not use the term administrative leave, the 
        function is the same.
          In addition, individual agencies' policies on the 
        appropriate length of time for administrative leave 
        vary widely. Indeed, the vast majority of the agencies 
        within our sample placed no specific time limit on the 
        use of paid administrative leave pending an 
        investigation or personnel action. Rather, those 
        agencies that addressed such a circumstance noted that 
        employees may be placed on administrative leave for 
        whatever time is necessary to effect a personnel action 
        or pending completion of an investigation.\25\
---------------------------------------------------------------------------
    \25\Senator Grassley Staff Administrative Leave Memorandum at 6-7 
(internal citations omitted).

    These inconsistent policies are troubling not just because 
it is difficult to conduct proper oversight over the use of 
paid administrative leave without accurate data, but because 
some agencies currently record leave that is otherwise 
authorized in statute by Congress--certain union activities, 
certain military activities, serving as an organ donor, and 
jury duty--as administrative leave.\26\ When agencies 
improperly record these types of leave as administrative leave, 
it is difficult for agency watchdogs--including Congress--to 
determine how much administrative leave is actually being used 
and to hold agencies accountable for its use.
---------------------------------------------------------------------------
    \26\Federal Paid Administrative Leave at 13-16.
---------------------------------------------------------------------------
    Senator Grassley's staff report also found that agencies 
placed employees on paid administrative leave without providing 
adequate justification.\27\ The report stated that many 
agencies that used administrative leave did not articulate how 
the employees posed threats to themselves, other employees, or 
government resources.\28\ This was unsurprising given the 
report's finding that few agencies had approval requirements 
for administrative leave greater than a certain time 
period.\29\ The Department of Justice, which had implemented 
guidance in 2002 requiring managers to explain the basis for 
placing an employee on administrative leave and to obtain 
authorization from the Department's Chief Human Capital Officer 
for an extension beyond ten days, was relatively more 
successful in limiting extended administrative leave--i.e., 
leave for more than one year.\30\
---------------------------------------------------------------------------
    \27\Senator Grassley Staff Administrative Leave Memorandum at 10-
16.
    \28\Id. at 11.
    \29\Id. at 7.
    \30\Id. at 13.
---------------------------------------------------------------------------
    In contrast, other agencies that had placed employees on 
administrative leave for extended periods of time could not 
justify the length of such leave nor why investigations or 
other actions took so long.\31\ In some cases, agencies 
reported that while misconduct investigations and disciplinary 
actions remain pending, their hands are tied; yet, it was not 
clear why such lengthy periods of time were required to 
investigate alleged misconduct or the extent to which 
alternatives--such as reassignment or indefinite suspension--
had been considered in conjunction with investigators.\32\ The 
lack of documentation inhibits proper oversight.
---------------------------------------------------------------------------
    \31\Id. at 16-18.
    \32\Id. at 16.
---------------------------------------------------------------------------
    Cost to the Taxpayers and the Employee of Extended Leave As 
noted by the Senior Executives Association, ``[t]he manner in 
which administrative leave has sometimes been abused by federal 
agencies has been unfair to employees, agencies, and American 
taxpayers.''\33\
---------------------------------------------------------------------------
    \33\Letter from Jason Briefel, Interim President of the Senior 
Executives Association, to the Honorable Ron Johnson, Chairman, and the 
Honorable Tom Carper, Ranking Member of the Committee on Homeland 
Security and Governmental Affairs (Feb. 9, 2016) (on file with Comm. 
staff).
---------------------------------------------------------------------------
    Although GAO's data were incomplete, the 2013 report 
concluded that between fiscal years (FY) 2011 and 2013, at 
least 263 employees were on administrative leave for one to 
three years, costing the American taxpayer--paying both 
salaries and benefits for the employees who were forbidden to 
work--approximately $31 million.\34\
---------------------------------------------------------------------------
    \34\Federal Paid Administrative Leave at 26.
---------------------------------------------------------------------------
    Employees placed on leave due to ongoing investigations for 
alleged misconduct have--in some cases--stayed on the Federal 
Government payroll for years. In FY2014, DHS and the Department 
of Veterans Affairs alone spent more than $40 million in 
estimated salaries for employees on administrative leave for 
one month or more.\35\
---------------------------------------------------------------------------
    \35\Senator Grassley Staff Administrative Leave Memorandum at 9, 
Fig. 1.
---------------------------------------------------------------------------
    GAO's recent review of DHS's uses of administrative leave 
concluded that from FY 2011 to FY 2015, 116 DHS employees were 
on administrative leave for at least one year, costing American 
taxpayers $19.8 million.\36\ The vast majority of these 
individuals were eventually separated from the agency.\37\ One 
example highlighted in the report is that of a law enforcement 
agent who had been on administrative leave for over three years 
while under investigation.\38\ This individual alone cost 
taxpayers $455,000 in salary and benefits.\39\
---------------------------------------------------------------------------
    \36\Administrative Leave: Evaluation of DHS at 8.
    \37\Id. at 11.
    \38\Id. at 8.
    \39\Id.
---------------------------------------------------------------------------
    Unlike an agency decision to remove or suspend an employee, 
however, an agency decision to place an employee on 
administrative leave is not an appealable action.\40\ 
Accordingly, employees such as the law enforcement agent on 
leave for more than three years at DHS, have no way to contest 
a decision to place them on indefinite administrative leave. 
This is especially problematic as there is reason to believe 
that administrative leave could be abused by an agency to 
retaliate against a whistleblower. While the employee receives 
pay, he or she faces significant uncertainty about the future 
of their career. Employees may wait years while their career 
languishes because their agencies have not proposed or 
determined whether to take an adverse personnel action. 
According to the Professional Managers Association, 
administrative leave ``has been used by agencies to drag out 
investigations, leaving workers in limbo for unreasonable 
periods of time.''\41\
---------------------------------------------------------------------------
    \40\See Dixon v. United States Postal Service, 69 M.S.P.R. 171 
(1995).
    \41\Letter from Thomas R. Burger, Executive Director, to the 
Honorable Ron Johnson, Chairman, and the Honorable Tom Carper, Ranking 
Member of the Committee on Homeland Security and Governmental Affairs 
(Feb. 9, 2016) (on file with Comm. staff).
---------------------------------------------------------------------------

S. 2450 Provisions--Administrative leave reform

    S. 2450 establishes in statute for the first time a 
definition of administrative leave that is separate from other 
forms of paid leave or excused absence already authorized and 
limits the use of administrative leave to five consecutive days 
at a time. This will reduce the wide variation as to what is 
categorized as administrative leave throughout the Federal 
Government and reduce its potential for abuse.
    It also provides a separate authorization for leave that 
becomes necessary as a result of weather or safety issues. As 
has been agency practice, the bill allows agencies to use 
excused absences for an employee or group of employees who 
cannot safely travel to or from work. This covers circumstances 
such as inclement weather, communicable disease exposure, and 
chemical spills, among others. Consistent with OPM guidance and 
the Telework Enhancement Act of 2010, the use of telework is 
encouraged to support continuity of operations and continued 
productivity even when Federal offices are closed.
    Separate from the maximum five-day administrative leave, 
the bill establishes two new forms of leave for excused 
absences due to personnel matters: investigative and notice 
leave. Before using investigative leave or notice leave, 
however, agencies must first determine whether the continued 
presence of the employee 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. These criteria codify existing OPM regulations, as 
discussed above. This ``threat determination'' is a personnel 
action under section 2302, which means that employees can 
challenge it if made for retaliatory, discriminatory, or other 
enumerated improper purposes. Otherwise, consistent with 
current case law, the placement on investigative leave or 
notice leave is not an adverse action.
    If the agency determines that the employee poses such a 
threat, the agency must consider other options before using 
investigative or notice leave, including: assigning the 
employee to duties in which the employee is no longer a threat, 
requiring the employee to telework, allowing the employee to 
voluntarily take another type of leave, and curtailing the 
notice period. No authority is established to permit agencies 
to require employees to take accrued leave, which would amount 
to a constructive suspension.\42\
---------------------------------------------------------------------------
    \42\Information Sheet No. 11, Enforced Leave, U.S. Merit Systems 
Protection Board, available at http://www.mspb.gov/MSPBSEARCH/
viewdocs.aspx?docnumber=367904&version=368537& application=HTML.
---------------------------------------------------------------------------
    If an agency determines it must use investigative leave 
after conducting the aforementioned determinations, it may 
place an employee on investigative leave for up to ten days 
(i.e., two weeks of time) while the agency or other 
investigative entity investigates the matter. If an agency 
needs to use more than ten days, it must go through a more 
rigorous approval process to ensure fairness, transparency, and 
accountability. To that end, the agency's Chief Human Capital 
Officer (or his or her designee), with input from the 
investigator conducting the relevant investigation, may grant 
extensions of up to 30 days each beyond the first ten days for 
a total of no more than 120 days of investigative leave, or 
approximately six months. In most cases, an agency should be 
able to conduct an efficient investigation within this time and 
it is important that an individual be returned to work or have 
their case resolved as soon as possible.
    Further extensions of investigative leave are permitted in 
60-day increments and for an unlimited total amount of time, 
but only for the first six years after enactment of the bill, 
and only with review by OPM and notice to Congress. The 
sponsors of the bill chose to use a six-year sunset on 
extensions beyond the first 120 days of investigative leave to: 
(1) give agencies sufficient time to develop more efficient 
policies for conducting investigations; (2) to give GAO time to 
conduct a study on the extent to which further extensions 
beyond 120 days are necessary and make recommendations to 
Congress; and (3) to give Congress sufficient time to legislate 
any adjustments to these policies, if necessary.
    At the conclusion of authorized use of investigative leave 
an agency must either return the employee to working status in 
some capacity or, if warranted, take an adverse action to keep 
an employee out of the workplace. While agencies may continue 
to investigate, agencies are not permitted to keep employees in 
an extended indeterminate status--they must make a decision to 
return the employee to work status or take an adverse action, 
thus providing a forum with due process protections where an 
employee can challenge the agency.
    Agencies may use notice leave to effectuate a removal or 
suspension action if such an action has been proposed.
    Finally, the bill improves the way that agencies record and 
keep track of administrative leave to ensure improved 
accountability and ability for the agency, Congress, GAO, and 
others to conduct oversight.\43\ First, it requires agencies to 
record other forms of legislatively authorized excused absence 
separately from administrative leave. Agencies will have two 
years from enactment to prepare for any necessary changes to 
recording practices. The legislation directs OPM to conduct an 
initial study to identify existing agency practices to grant 
administrative leave for more than five days where such leave 
is not already authorized in law. This will ensure that 
Congress is aware of circumstances in which administrative 
leave has been granted in excess of five days to legislatively 
authorize such leave, if warranted.
---------------------------------------------------------------------------
    \43\Provisions of this bill are to be read consistent with the 
Privacy Act. 5 U.S.C. Sec. 552a.
---------------------------------------------------------------------------

                        III. Legislative History

    Senator Jon Tester (D-MT) introduced S. 2450 on February 
10, 2016 with Senators Chuck Grassley (R-IA), Ron Johnson (R-
WI), and Tom Carper (D-DE). The bill was referred to the 
Committee on Homeland Security and Governmental Affairs. 
Senators James Lankford (R-OK) and Claire McCaskill (D-MO) 
joined as cosponsors on February 8, 2016, and February 9, 2016, 
respectively.
    The Committee considered S. 2450 at a business meeting on 
February 10, 2016. During the business meeting, a substitute 
amendment was offered by Senators Tester, Johnson, and Carper, 
that made improvements to the bill. The bill, as amended by the 
substitute amendment, was ordered reported favorably by voice 
vote en bloc. Senators Johnson, McCain, Portman, Paul, 
Lankford, Ayotte, Ernst, Sasse, Carper, McCaskill, Tester, 
Baldwin, Heitkamp, Booker, and Peters were present for the 
vote.

       III. Section-by-Section Analysis of the Bill, as Reported

Section 1. Short title

    This section supplies the short title of the bill, the 
Administrative Leave Act of 2016.

Section 2. Sense of Congress

    This section states Congress's views that agencies have 
excessively used administrative leave--oftentimes recording 
paid time off as administrative leave when in fact there is 
another more appropriate leave that should be used--and 
declares its intent that administrative leave be used 
sparingly, as a last resort, and while expeditiously working to 
resolve any related investigation so that the employee can 
either return to duty or the agency can initiate a personnel 
action.

Section 3. Administrative leave

    This section amends subchapter II of chapter 63 of Title 5, 
United States Code, by adding a new section 6330 and defining 
the terms ``administrative leave'', ``agency'', and 
``employee.'' This section limits an agency from placing an 
employee on administrative leave for a period of more than five 
consecutive days. This definition and authority to use 
administrative leave is intended to codify the excused absence 
that agencies had previously been granting as an exercise of 
agency discretion and that agencies justified as pursuant to 
historical practice or authority granted by 5 U.S.C. 
Sec. Sec. 301-302. This period of five days is not a cap on the 
amount of total excused absence an agency may grant to 
employees, as longer periods may be used in the case of 
investigative and notice leave, detailed below, or other forms 
of statutorily authorized paid leave. However, agencies will 
not be permitted to provide for excused absence as an exercise 
of agency discretion under 5 U.S.C. Sec. Sec. 301-302 or 
otherwise outside of that which is authorized by this bill or 
other authority provided by statute. Moreover, agencies should 
not circumvent the five-day limit by putting an employee on 
leave for five days, taking the employee off of leave, and then 
placing the employee on leave again.
    This section also requires agencies to record 
administrative leave separately from leave authorized under any 
other provision of law. It further requires the Office of 
Personnel Management (OPM) to prescribe regulations to carry 
out this section, and prescribe regulations that provide 
guidance to agencies regarding acceptable uses of 
administrative leave and the proper recording of administrative 
leave and other leave authorized by law. To the extent that 
Congress authorizes additional forms of excused absence, 
agencies should record those separately. Agencies have one year 
after the date upon which OPM has prescribed regulations to 
revise and implement their internal policies to conform to the 
requirements of this section and thus implement the provisions 
of this bill.
    Finally, this section provides for OPM, in consultation 
with Federal agencies, unions, and other relevant stakeholders, 
to provide a study to the Senate Committee on Homeland Security 
and Governmental Affairs and the House Oversight and Government 
Reform Committee identifying agency practices of placing an 
employee on administrative leave for more than five consecutive 
days when the placement was not specifically authorized under 
law.

Section 4. Investigative leave and notice leave

    This section defines the terms ``agency'', ``Chief Human 
Capital Officer'', ``committees of jurisdiction'', 
``Director'', ``employee,'' ``investigative leave'', ``notice 
leave'', and ``notice period.''
    This section creates new forms of paid leave under Section 
6330a, subchapter II of chapter 63, Title 5, by providing leave 
for employees under investigation or in a notice period. The 
section states that an agency may not place an employee on 
investigative leave or notice leave unless the continued 
presence of the employee in the workplace during an 
investigation or notice period (a) poses a threat to the 
employee or other employees; (b) results in the destruction of 
evidence; (c) results in the loss of or damage to government 
property; or (d) otherwise jeopardizes legitimate government 
interests.\44\
---------------------------------------------------------------------------
    \44\With respect to investigations in connection with the 
suspension or revocation of a security clearance, agencies may use 
administrative leave where the continued presence of the employee in 
the workplaces ``otherwise jeopardizes legitimate government 
interests.''
---------------------------------------------------------------------------
    After making a determination with respect to an employee, 
and before placing an employee on investigative or notice 
leave, this section requires agencies to consider taking one or 
more of the following actions: (a) assigning the employee to 
duties in which an employee no longer poses a threat; (b) 
allowing the employee to take leave for which they are 
eligible; (c) requiring the employee to telework under section 
6502(c); (d) should the employee become absent without approved 
leave, carrying the employee in absence without leave status; 
(e) for an employee who is 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.
    This section limits the initial period of investigative 
leave to ten days. Extensions, each lasting not more than 30 
days, may be granted should the Chief Human Capital Officer of 
an agency, or the designee of the Chief Human Capital Officer, 
approve the extension after consulting with the investigator 
responsible for the investigation. Such extensions, taken 
together, may not exceed 110 days (for a total of 120 days when 
the initial ten days is included). For employees of an Office 
of the Inspector General, the Inspector General or the designee 
of the Inspector General, approves the extension of 
investigative leave for an employee. Should the Inspector 
General make the request, the head of an agency is eligible to 
designate an official to approve an extension of such leave. 
This section requires the Chief Human Capital Officers Council 
and the Council of the Inspectors General on Integrity and 
Efficiency to issue guidance on appropriate designations under 
this section. Designations must be at a sufficiently high level 
within the agency to ensure an impartial and independent 
determination is made with respect to the extension. High-level 
agency attention and oversight have proven effective in 
limiting the amount of paid leave and any designation should 
not be delegated to a level that is insufficient to ensure such 
scrutiny.
    Further extensions of 60 days of investigative leave may be 
granted by the head of an agency (or the inspector general) 
before the extension period expires when the agency submits 
reasons of the further extension to the Congressional 
committees of jurisdiction. Such extensions are subject to OPM 
review. After six years, agencies may no longer grant 60-day 
extensions, and will instead be capped at the 30-day extensions 
totaling no more than 110 days (extensions beyond a total of 
120 days granted prior to the statutory expiration of the 
authority are valid, but no more may be granted). This section 
requires the Government Accountability Office to evaluate the 
implementation of investigative leave and the applicable 
extensions prior to the six-year sunset. Among other topics, 
the GAO study must address agencies' placement of employees on 
administrative leave because of a determination that the 
continued presence of the employee may jeopardize legitimate 
Government interests to ensure agencies are not abusing this 
authority.
    This section also states that the placement of an employee 
on notice leave shall be for a period of not longer than the 
duration of the notice period.\45\
---------------------------------------------------------------------------
    \45\Administrative Law Judges (ALJs) have statutory protections 
greater than those provided to other Federal employees--including 
prohibition on an adverse action without a finding of good cause by the 
Merit Systems Protection Board (MSPB), 5 U.S.C. Sec. 7521, and 
prohibition on the performance of duties inconsistent with the duties 
and responsibilities as ALJs, 5 U.S.C. Sec. 3105. The provisions of 
this bill apply to ALJs and the Committee intends for agencies to use 
notice leave pending the good cause determination by the MSPB with 
respect to an ALJ whose continued presence 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. This 
will enable S. 2450 to be read consistent with existing law governing 
ALJs; the legislation controls to the extent it is inconsistent with 
existing regulations governing the placement of ALJs on leave. See, 
e.g., 5 CFR. Sec. 930.211(b) (allowing ALJs to be placed on 
administrative leave status ``when there are circumstances in which the 
retention of an [ALJ] in his or her position is detrimental to the 
interests of the Federal Government'').
---------------------------------------------------------------------------
    Agencies are required to provide the employee on 
investigative or notice leave a written explanation of the 
leave. Agencies are also required to, not later than the day 
after the last day of a period of investigative leave: (a) 
return the employee to regular duty status; (b) take one or 
more of the actions previously stated; (c) propose or initiate 
an adverse action against the employee; or (d) extend the 
period of investigative leave accorded by the bill.
    To improve communication between investigators and agency 
personnel who are responsible for making decisions about the 
necessity of placing employees on investigative leave, this 
section requires the Council of the Inspectors General on 
Integrity and Efficiency, in consultation with the Attorney 
General and the Special Counsel, to issue guidance on best 
practices for consultation between an investigator and the 
agency. The guidance is intended to encourage communication 
between investigative entities and agencies, to the extent 
possible, so that agencies do not assume the necessity of paid 
leave just because an investigation is ongoing. OPM is also 
required to provide guidance to agencies on the use of 
investigative leave and notice leave; how such leave and other 
statutorily authorized forms of leave are to be properly 
recorded; and baseline factors that agencies must consider when 
making a ``threat determination.'' Recognizing that each 
situation presents a unique set of facts and circumstances, OPM 
guidance will help ensure that agencies are assessing similar 
factors when determining whether an employee should be on non-
duty paid status pending an investigation or notice period. OPM 
must also prescribe procedures and criteria for how agencies 
should approve of extensions of investigative and notice leave 
under this section, including how agencies should submit 
extension requests to the Director for review.
    This section also allows an agency to require an employee 
to telework under the provisions of section 6502 of title 5, if 
the continued presence of an employee in the workplace during 
an investigation or when the employee is in a notice period, 
poses one or more of the threats described in the previous 
section.

Section 5. Leave for weather and safety issues

    This section amends subchapter II of chapter 63, Title 5 to 
include a new section, 6330b, for ``weather and safety leave''. 
Agencies may approve paid leave without loss or reduction in 
pay for an employee or group of employees if they are prevented 
from safely traveling to or performing work due to an act of 
God, terrorist attack, or another condition that prevents them 
from safely traveling to or performing work at an approved 
location. This section also requires agencies to record such 
leave separately from leave already authorized under law.

Section 6. Additional oversight

    This section provides for the Director of OPM to complete a 
review of agency policies to determine whether agencies have 
complied with the requirements of this bill no later than three 
years after enactment. These findings are then to be submitted, 
in report form, to Congress 90 days after completion.

                  IV. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

              V. Congressional Budget Office Cost Estimate

                                                    March 23, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2450, the 
Administrative Leave Act of 2016.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dan Ready, 
who can be reached at 226-2880.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 2450--Administrative Leave Act of 2016

    S. 2450 would create three new types of leave for agencies 
to use in lieu of administrative leave in specific 
circumstances. Two of the new types of leave--investigative 
leave and notice leave--would be available for removing an 
employee from the workplace while an agency is investigating 
misconduct or taking adverse action against that employee. The 
third new type of leave would be for weather and safety issues, 
when an agency determines employees cannot travel safely to or 
from work. S. 2450 would restrict the length of time an agency 
can place an employee on administrative leave, investigative 
leave, or notice leave and would require nearly all executive 
branch agencies to keep records related to the use of 
administrative leave and the three new types of leave.
    In addition, S. 2450 would require the Office of Personnel 
Management (OPM) to prescribe regulations to implement the new 
leave categories and to report on current practices regarding 
administrative leave. Finally, the Government Accountability 
Office (GAO) would have to write a report on the bill's 
implementation five years after enactment.
    Adding the new types of leave would not change the amounts 
that agencies would pay an employee. In addition, because 
agencies already record several different types of leave and 
keep records related to personnel actions, CBO expects they 
should be able to integrate the new categories relatively 
easily. On the basis of information from OPM and GAO, CBO 
estimates that implementing the legislation would have no 
significant effect on the budget.
    Because S. 2450 would not affect direct spending or 
revenues, pay-as-you-go procedures do not apply. Enacting S. 
2450 would not increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2027.
    S. 2450 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dan Ready. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

       VI. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

Subpart A--General Provisions

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

SEC. 2302. ADMINISTRATIVE LEAVE

    (a) * * *
          (1) * * *
          (2) * * *
                  (A) * * *
                          (i)

           *       *       *       *       *       *       *

                          (xi) the implementation or 
                        enforcement of any nondisclosure 
                        policy, form, or agreement; [and]
                          (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
                          [(xii)] (xiii) any other significant 
                        change in duties, responsibilities, or 
                        working conditions;

           *       *       *       *       *       *       *

Subpart E--Attendance and Leave

           *       *       *       *       *       *       *

CHAPTER 63--LEAVE

           *       *       *       *       *       *       *

                     Subchapter II--Other Paid Leave

6321. * * *
     * * * * * * *
6330. Administrative Leave.
6330a. Investigative and Notice Leave.
6330b. Weather and Safety Leave.

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 work week.
    (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.

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 work place 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.'

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 work week.
    (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.

           *       *       *       *       *       *       *

CHAPTER 65--TELEWORK

           *       *       *       *       *       *       *

SEC. 6502. EXECUTIVE AGENCIES TELEWORK REQUIREMENT

    (a) * * *
    (b) * * *
    (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.

                                  [all]
```