102256 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

1Enacted under section 1138 of the National 

Defense Authorization Act for Fiscal Year 2017 

(Pub. L. 114–328, 130 Stat. 2000, Dec. 23, 2016). 

2 In this preamble, references to statutory 

provisions in title 5, U.S. Code, will generally be 

referred to by section number without restating the 

title 5 reference (e.g., section 6329a instead of 5 

U.S.C. 6329a). Also, references to regulatory 

provisions in title 5, Code of Federal Regulations, 

will generally be referred to by section number 

without restating the title 5 reference (e.g., 

§ 630.1401 instead of 5 CFR 630.1401). 

3 82 FR 32263. 

4 83 FR 15291. 

5See, e.g., Off. of Pers. Mgmt., ‘‘Fact Sheet: 

Administrative Leave,’’ at https://www.opm.gov/ 

policy-data-oversight/pay-leave/leaveadministration/fact-sheets/administrative-leave/. 

6See Gov’t Accountability Off., ‘‘Federal Paid 

Administrative Leave,’’ Oct. 2014, at https://

www.gao.gov/assets/gao-15-79.pdf. 

7The five agencies GAO reviewed were the 

Departments of Defense, the Interior, and Veterans 

Affairs, the General Services Administration, and 

the U.S. Agency for International Development. 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 630 and 752 

RIN 3206–AN59 

Administrative Leave, Investigative 

Leave, and Notice Leave 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management is issuing a final rule on 

the acceptable uses and proper 

recording of administrative leave, 

investigative leave, and notice leave for 

covered Federal employees. The 

Administrative Leave Act of 2016 

created these categories of statutorily 

authorized paid leave and set 

parameters for their use by Federal 

agencies. OPM prescribes this final rule 

to carry out the Act and guide agencies 

regarding these leave categories. 

DATES: 

Effective date: This final rule is 

effective on January 16, 2025. 

Compliance date: Agencies must issue 

internal policies consistent with this 

rule and any applicable collective 

bargaining obligations no later than 

September 13, 2025. 

FOR FURTHER INFORMATION CONTACT: For 

matters related to general administrative 

leave, Bryce Baker by email at 

LeavePolicy@opm.gov or by telephone at 

(202) 606–2858; for matters related to 

investigative leave or notice leave, 

Timothy Curry by email at 

employeeaccountability@opm.gov or by 

telephone at (202) 606–2930. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

The Office of Personnel Management 

(OPM) is issuing a final rule regarding 

the administrative leave, investigative 

leave, and notice leave provisions of the 

Administrative Leave Act of 2016.1 The 

Act added three new sections in title 5, 

U.S. Code, that provide for specific 

categories of paid leave and 

requirements that apply to each: section 

6329a regarding administrative leave; 

section 6329b regarding investigative 

leave and notice leave; and section 

6329c regarding weather and safety 

leave.2

The Act charged OPM with 

prescribing regulations to carry out 

sections 6329a, 6329b, and 6329c and 

guide agencies regarding these new 

leave categories no later than 270 

calendar days after the Act’s enactment 

on December 23, 2016, i.e., by 

September 19, 2017. OPM published 

proposed regulations for all three 

sections on July 13, 2017,3 and issued 

regulations implementing § 6329c, 

weather and safety leave, on April 10, 

2018.4

OPM now prescribes a final rule 

regarding acceptable uses and proper 

recording of administrative leave to 

carry out section 6329a, as well as 

regulations regarding acceptable uses 

and proper recording of investigative 

leave and notice leave, baseline factors 

agencies must consider regarding 

investigative leave, and procedures for 

the approval and the extension of 

investigative leave to carry out section 

6329b. 

II. Background 

Prior to passage of the Administrative 

Leave Act, there was no specific 

statutory authority for the use of 

administrative leave, which is an 

excused absence without loss of pay or 

charge to leave. Agencies granted paid 

excused absences (which they often 

called ‘‘administrative leave’’) to 

employees based on statutes, like 5 

U.S.C. 301–302, that provide heads of 

agencies broad authority to manage their 

workforces. 

While sections 301–302 do not 

expressly address excused absence and 

do not set parameters on its use, some 

direction on agency discretion to use the 

excused absence authority was provided 

in Comptroller General decisions and in 

past OPM guidance via governmentwide 

memorandums, handbooks, fact-sheets, 

and frequently asked questions.5 In that 

guidance, OPM provided 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 agency, (3) it will 

clearly enhance professional 

development or skills of the employee 

in the employee’s current position, or 

(4) it is determined to be in the interest 

of the agency or of the Government as 

a whole. 

In drafting the Administrative Leave 

Act, Congress considered an October 

2014 report entitled ‘‘Federal Paid 

Administrative Leave,’’ prepared by the 

Government Accountability Office 

(GAO) at Congress’ request.6 GAO 

examined the paid administrative leave 

policies at five selected Federal 

agencies.7 It reviewed practices in 

recording and reporting of paid 

administrative leave and described 

categories of purposes for which large 

amounts of paid administrative leave 

have been charged. GAO found that 

agency policies on administrative leave 

varied and that some employees were 

on administrative leave for long periods 

of time. These periods had significant 

cost implications. GAO found that the 

‘‘predominant reason’’ for ‘‘large 

amounts of administrative leave was 

personnel matters, which was cited as a 

reason for paid administrative leave at 

all five of [the] selected agencies.’’ 

These personnel matters included 

‘‘investigations into alleged misconduct, 

criminal matters, or security concerns as 

well as settlement agreements, pending 

adverse actions due to inappropriate 

behavior, and interim relief.’’ These 

matters concluded in a variety of ways, 

including ‘‘removal, retirement, 

resignation, reinstatement of [the] 

employee, and settlement 

agreement[s].’’ GAO also found 

variations in agencies’ recording and 

reporting practices with respect to 

administrative leave and that there was 

no reliable data on the amount of 

administrative leave by type of use (e.g., 

weather and safety reasons, personnel 

investigation reasons). 

GAO concluded that ‘‘Federal 

agencies have the discretion to grant 

paid administrative leave to employees 

to help manage their workforces when 

it is in their best interest to do so. This 

discretion is important in ensuring that 

employees are not placed in dangerous 

circumstances, have access to 

professional development opportunities, 

and are able to participate in civic 

activities during work hours,’’ but that 

administrative leave should be managed 

effectively since it is a cost to the 

taxpayer. GAO made two 

recommendations: that OPM, in 

coordination with agencies, (1) develop 

guidance on which activities to enter, or 


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8See House Report 114–520, (Aug. 25, 2016), 

accompanying H.R. 4359, at https://

www.govinfo.gov/content/pkg/CRPT-114hrpt520/ 

html/CRPT-114hrpt520.htm; Senate Report 114– 

292, (July 6, 2016), accompanying S. 2450, at 

https://www.govinfo.gov/content/pkg/CRPT114srpt292/html/CRPT-114srpt292.htm. 

9See 82 FR 32263. 

10See 5 U.S.C. 6329a(c)(2), 6329b(h)(2). 

not enter, as paid administrative leave 

in agency time and attendance systems, 

and (2) provide updated and specific 

guidance to payroll service providers on 

which activities to report, or not report, 

to the paid administrative leave data 

element in the Enterprise Human 

Resources Integration database. 

Congress extensively cited the GAO 

report in 2016 House and Senate 

committee reports regarding draft bills 

for Federal administrative leave.8 Those 

committee reports also included 

background information on the 

development of the legislative text that 

eventually became the Administrative 

Leave Act. As discussed further, below, 

while Congress sought to address and 

better record all forms of paid 

administrative leave, its primary focus 

when enacting the Administrative Leave 

Act was on leave related to misconduct, 

performance, or other reasons 

prompting an investigation (as opposed 

to general administrative leave 

unrelated to an investigation). 

In the sense of Congress provisions in 

section 1138(b) of the Administrative 

Leave Act, Congress expressed the need 

for legislation to address concerns that 

usage of administrative leave had 

sometimes exceeded reasonable 

amounts and resulted in significant 

costs to the Government. Congress 

wanted agencies to (1) use 

administrative leave sparingly and 

reasonably, (2) consider alternatives to 

use of administrative leave when 

employees are under investigation, and 

(3) act expeditiously to conclude 

investigations and either return the 

employee to duty or take an appropriate 

personnel action. Congress also wanted 

agencies to keep accurate records 

regarding the use of administrative leave 

for various purposes. 

As explained in the ‘‘Executive 

Summary,’’ the Act added three new 

sections in title 5, U.S. Code, that 

provide for specific categories of paid 

leave and requirements that apply to 

each: 

• Section 6329a regarding 

administrative leave; 

• Section 6329b regarding 

investigative leave and notice leave; and 

• Section 6329c regarding weather 

and safety leave. 

The Act directed OPM to prescribe 

regulations to carry out these three 

sections and guide agencies regarding 

these new leave categories. Specifically, 

under section 6329a, OPM is required to 

prescribe regulations that provide 

guidance to agencies regarding (1) 

acceptable uses of administrative leave 

and (2) the proper recording of 

administrative leave and other leave 

authorized by law. Under section 6329b, 

OPM is required to prescribe regulations 

regarding (1) the acceptable uses of 

investigative leave and notice leave, (2) 

the proper recording of investigative 

leave and notice leave, (3) baseline 

factors that an agency must consider 

when making a determination that the 

continued presence of an employee in 

the workplace may pose a threat to the 

employee or others, result in the 

destruction of evidence relevant to an 

investigation, result in loss of or damage 

to Government property, or otherwise 

jeopardize legitimate Government 

interests, and (4) procedures and criteria 

for the approval of an extension of a 

period of investigative leave. And 

section 6329c required OPM to 

prescribe regulations regarding (1) the 

appropriate purposes for providing 

weather and safety leave and (2) the 

proper recording of weather and safety 

leave. 

The Administrative Leave Act 

provided that OPM prescribe these 

regulations no later than 270 calendar 

days after its enactment on December 

23, 2016—i.e., by September 19, 2017. 

OPM published proposed regulations on 

July 13, 2017.9 OPM proposed to add 

three new subparts to 5 CFR part 630 

that correspond to the three new 

statutory sections in 5 U.S.C. chapter 63: 

subpart N, Administrative Leave 

(implementing section 6329a); subpart 

O, Investigative Leave and Notice Leave 

(implementing section 6329b); and 

subpart P, Weather and Safety Leave 

(implementing section 6329c). 

The Act further directed that agencies 

‘‘revise and implement the internal 

policies of the agency,’’ to meet the 

statutory requirements pertaining to 

administrative leave, investigative leave, 

and notice leave no later than 270 

calendar days after the date on which 

OPM issues its regulations.10 There was 

no similar agency implementation 

provision in the law governing weather 

and safety leave. 

The 30-day comment period for the 

proposed regulations ended on August 

14, 2017. After consideration of the 

comments received, and in recognition 

of the different implementation dates for 

the new leave categories under the Act, 

OPM determined that it would better 

serve agencies if the regulations at 

subpart P, Weather and Safety Leave, 

were issued first, separately from the 

regulations addressing the other leave 

categories. The regulations on weather 

and safety leave were published on 

April 10, 2018, and became effective on 

May 10, 2018. In that final rule, OPM 

stated it would delay enforcement of the 

reporting requirements for weather and 

safety leave pending this final rule (see 

83 FR 15291); accordingly, agencies 

must begin reporting weather and safety 

leave not later than 270 days after the 

date of publication. 

The effective date for these 

regulations addressing administrative 

leave (subpart N) and investigative and 

notice leave (subpart O) is 30 days after 

the date of publication and the 

compliance date is set as 270 days after 

the date of publication. This compliance 

date is consistent with the provisions in 

sections 6329a(c)(2) and 6329b(h)(2), 

which require that agencies revise and 

implement their internal policies 

consistent with the Act within 270 

calendar days from the date OPM 

prescribes the regulations. That same 

effective and compliance dates apply to 

OPM’s amendments to §§ 752.404(b)(3) 

and 752.604(b)(2), which are 

conforming amendments related to 

subpart O. Agencies are responsible for 

compliance with time limits provided 

for in the Act, these OPM regulations, 

and any related guidance. 

III. Regulatory Amendments and 

Related Comments 

A. Summary of Regulatory Changes 

In this final rule, OPM is adding two 

new subparts to 5 CFR part 630 that 

correspond to new statutory sections in 

5 U.S.C. chapter 63: subpart N, 

Administrative Leave (implementing 5 

U.S.C. 6329a), and subpart O, 

Investigative Leave and Notice Leave 

(implementing 5 U.S.C. 6329b). 

Administrative leave is permitted—at 

an agency’s discretion but subject to 

statutory and regulatory requirements— 

when an agency determines that no 

other paid leave is available under other 

law. Under section 6329a(b)(1), an 

agency ‘‘may place’’ an employee on 

administrative leave for no more than 10 

total workdays in any given calendar 

year. 

Investigative leave and notice leave 

are permitted—at an agency’s discretion 

but subject to statutory and regulatory 

requirements—when an agency 

determines that an employee must be 

removed from the workplace while 

under investigation or during a notice 

period (i.e., the period beginning on the 

date the employee is provided a notice 

of proposed adverse action and ending 

on either (1) the effective date of the 


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11As described below, this final rule provides for 

two subcategories of administrative leave: (1) 

administrative leave for investigative purposes 

(related to employee conduct or performance) and 

(2) administrative leave for all other purposes. 

12OPM received an additional 13 comments that 

contained personally identifiable information and 

were removed from regulations.gov but OPM still 

considered them in conjunction with this final rule. 

Four of the total comments received were neither 

posted to the docket on regulations.gov nor 

considered in this final rule because they are 

irrelevant to issues discussed in the proposed rule. 

13See infra Section IV.(B.) regarding OPM’s 

interpretation that the annual 10 workday 

limitation in section 6329a of the Administrative 

Leave Act was meant to apply to managementinitiated actions to ‘‘place’’ an employee on 

administrative leave, with or without the 

employee’s consent, for the purpose of investigating 

an employee’s conduct or performance that could 

lead to an adverse personnel action. 

14See section 1138(d)(2) of Public Law 114–328 

(5 U.S.C. 6329a (Editorial Notes)). 

15See 5 U.S.C. 7116(a)(7) (explaining it shall be 

an unfair labor practice for an agency to ‘‘enforce 

a rule or regulation . . . which is in conflict with 

any applicable collective bargaining agreement if 

the agreement was in effect before the date the rule 

or regulation was prescribed[.]’’). 

adverse action or (2) the date the agency 

notifies the employee that no adverse 

action will be taken). These two types 

of leave may be used only when an 

authorized agency official determines, 

through evaluation of baseline factors, 

that the continued presence of the 

employee in the workplace may pose a 

threat to the employee or others, result 

in the destruction of evidence relevant 

to an investigation, result in loss of or 

damage to Government property, or 

otherwise jeopardize legitimate 

Government interests. Before using 

these two types of leave, agencies must 

consider options to avoid or minimize 

the use of paid leave, such as changing 

the employee’s duties or work location. 

Use of investigative leave is subject to 

time limitations and special approvals 

for extensions. 

Both the law and these regulations 

also address recordkeeping and 

reporting requirements with which 

agencies must comply. Agencies must 

keep separate records on each type of 

leave provided under the Act: 

administrative leave,11 investigative 

leave, notice leave, and weather and 

safety leave. 

OPM is also making several editorial 

changes from its proposed regulatory 

text. In § 630.1504(g), OPM has changed 

the reference to the Committee on 

Oversight and Government Reform to 

the Committee on Oversight and 

Accountability to reflect the change in 

the name of the relevant committee in 

the House of Representatives since the 

passage of the Act. OPM is also revising 

its proposed regulatory text to adopt 

gender neutral language. Finally, OPM 

is revising the Authority citations for 

part 752 to comply with 1 CFR part 21, 

subpart B, without substantive change. 

B. Digest of Public Comments 

OPM received 78 comments on the 

proposed regulations from agency 

representatives (18), unions (7), other 

organizations (6), and individuals 

(47).12 In the next section, we address 

general or overarching comments on the 

proposed rule. In the sections that 

follow, we address comments related to 

specific proposals. 

C. General Comments 

Comment re Coding in Payroll 

System: Multiple commenters requested 

guidance about how the new types of 

leave should be coded in the payroll 

system to accurately account for and 

track the use of these new leave 

provisions. An agency questioned the 

need for a separate category for 

administrative leave used for 

investigative purposes and suggested 

coding such leave as investigative leave. 

OPM response: The regulations 

specify that an agency must track the 

use of the new categories of leave using 

five categories: (1) administrative leave 

for investigative purposes (related to 

employee conduct, performance, or 

other reasons prompting an 

investigation), (2) administrative leave 

for other purposes, (3) investigative 

leave, (4) notice leave, and (5) weather 

and safety leave (published separately at 

83 FR 15291). 

The two categories related to 

investigations are necessary because the 

law bars use of investigative leave under 

section 6329b until the employee has 

reached the 10-workday annual limit for 

administrative leave for investigative 

purposes under section 6329a.13 That 

means that agencies will use an initial 

period of administrative leave for 

investigative purposes unless and until 

that period is exhausted before the 

provisions of section 6329b apply. This 

is the reason the type of administrative 

leave must be separately tracked. The 

regulations do not address details 

regarding the coding of leave in agency 

payroll systems or in OPM’s 

Government payroll databases. OPM 

will be providing payroll and shared 

service providers with instructions on 

how to properly code the various types 

of leave. 

Comment re Leave Reporting: An 

organization expressed concern that the 

proposed regulations require agencies 

only to report on their use of 

administrative leave and not 

investigative leave or notice leave. The 

same organization also expressed 

concern that having reports prepared by 

the GAO submitted every 5 years is too 

infrequent. Instead, the organization 

stated that agencies should be required 

to maintain real-time, current tallies of 

all types of paid leave available on its 

public website, rather than ‘‘buried in 

obscure, long, after-the-fact reports.’’ 

OPM response: The commenter is 

incorrect that the regulations do not 

require reporting on the use of 

investigative leave and notice leave. The 

regulations at § 630.1506(c) require that 

data on usage of investigative leave and 

notice leave be included in data reports 

to OPM. Payroll providers submit 

payroll data to OPM every biweekly pay 

period. Thus, agencies and OPM will 

have greater visibility into 

administrative, investigative, and notice 

leave usage, which may be used to 

generate reports as necessary. The 5- 

year period for GAO’s report is a 

statutory requirement, which OPM has 

no authority to change, nor does OPM 

have the authority to impose on GAO 

the obligation to submit additional 

reports to Congress.14

Comments re Existing Collective 

Bargaining Agreements: A union 

requested clarification that any OPMissued ‘‘guidance’’ does not interfere 

with the union’s bargaining rights or 

legal obligations in existing collective 

bargaining agreements. Also, an 

individual commented that excused 

absence provided under a negotiated 

collective bargaining agreement should 

be excluded from the limits in subpart 

N. 

OPM Response: Statutory and 

regulatory requirements affect collective 

bargaining agreements in different ways. 

To the extent that existing agency 

collective bargaining agreements 

contain provisions that are inconsistent 

with the statutory provisions of the 

Administrative Leave Act (including 

sections 6329a, 6329b, or 6329c), the 

Act supersedes conflicting provisions in 

agency collective bargaining agreements 

as a matter of law. Regulations issued 

pursuant to the Administrative Leave 

Act, however, cannot nullify the terms 

of an existing collective bargaining 

agreement for the duration of the 

agreement. If an agency collective 

bargaining agreement is in effect before 

the date these regulations are 

prescribed,15 then any provisions in the 

regulations (other than those restating 

statutory requirements which are 

immediately enforceable) that conflict 

with the agreement may be enforced 

only when the current term of the 

collective bargaining agreement expires 

(whether or not the agreement is 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 102259 

officially reopened for negotiations or is 

automatically renewed through a 

rollover provision). But agency 

collective bargaining agreements that 

take effect on or after the date these 

regulations are prescribed must comport 

with the requirements of this regulation. 

Any conflicting provisions will be 

unlawful and may not be enforced. To 

the extent that provisions in agency 

collective bargaining agreements are 

consistent with the Act and 

accompanying regulations, those 

provisions remain in effect unless and 

until the provisions are renegotiated. 

Moreover, OPM will issue 

interpretative guidance relating to these 

regulations. Any collective bargaining 

provision reached after the date these 

regulations are prescribed that conflicts 

with the regulations would be unlawful 

and non-negotiable, and, if included in 

a collective bargaining agreement, 

unenforceable by the Federal Labor 

Relations Authority (FLRA or the 

Authority) or an arbitrator. 

Comment re Disciplining Managers: 

An organization expressed concern that 

the proposed regulations would not 

prevent abuse in the form of excessive 

investigative leave and notice leave, 

since managers would not be held 

accountable in a meaningful way for 

inappropriate use of these types of 

leave—they do not subject managers 

who approve excessive leave to 

discipline and there is no ‘‘down side’’ 

for them in terms of adverse career 

consequences. The organization stated 

that such excessive leave affects both 

the taxpayer and the agency by allowing 

human resources to be wasted. The 

organization also expressed concern that 

excessive investigative leave damages 

the targeted employee’s professional 

prospects and reputation. For instance, 

employees can be left in lengthy ‘‘leavelimbos’’ without due process protection 

where they are viewed by management 

as ‘‘inconvenient, an irritant, or a 

political threat.’’ 

OPM response: The statute governing 

investigative leave (section 6329b) 

established various accountability 

mechanisms to prevent use of 

investigative leave beyond specified 

limits and controls. Those mechanisms 

include standards on appropriate usage 

(supplemented by regulations), time 

limits, approval levels, reports to 

Congress, recordkeeping, and GAO 

reviews. OPM notes that, as required by 

law, these regulations deal with the 

granting of leave and do not regulate 

agency decisions regarding 

investigations or adverse actions. 

Although the Administrative Leave 

Act did not establish time limits for 

notice leave, notice leave may be used 

only when an agency has issued a notice 

of proposed adverse action. Also, 

agencies must keep records regarding 

the use of notice leave and those records 

are subject to review by Congress, OPM, 

GAO, and other oversight or 

adjudicative bodies. Data on the use of 

notice leave can reveal any excessive 

use that warrants additional scrutiny. 

Finally, the regulations are not 

intended to be a substitute for agencies’ 

own compliance and remedial efforts 

relating to potential program abuse. But 

OPM notes that due process protections 

would not apply to an employee in a 

paid status because there would be no 

deprivation of property while on 

investigative leave or notice leave. 

Comment re OPM’s Oversight of 

Agency Practices: An organization 

commented that OPM’s proposed 

regulations would not place 

responsibility on OPM to police agency 

practices with respect to investigative 

leave and notice leave but would, 

instead, allow agencies to police 

themselves. The organization stated that 

the regulations make no provision for 

ensuring that agencies establish 

necessary agency rules or that agency 

rules are consistent with OPM 

regulations. The organization suggested 

that OPM exercise oversight over agency 

practices. 

OPM response: As described above, 

the Administrative Leave Act 

authorized OPM to issue regulations 

dealing with the appropriate uses and 

proper recording of the new types of 

leave. Although OPM has a general 

oversight function, Congress imposed 

no specific obligation on OPM to 

monitor or police agency practices with 

respect to the Act. OPM will take steps, 

however, to enforce the rules to the 

extent permitted by resources and 

consistent with other significant 

priorities. OPM can and will intervene, 

for example, if it becomes aware that an 

agency is not complying with the law 

and regulations for which OPM is 

responsible. At the same time, each 

agency, along with its Inspectors 

General, is responsible for evaluating 

agency personnel programs and the 

actions of its managers. The Act also 

gave GAO a specific responsibility to 

evaluate agencies’ implementation of 

investigative leave and notice leave 

every 5 years. 

Comment re Required Hours While 

Teleworking: One commenter noted the 

telework-related provisions in the 

proposed regulations and expressed 

concern that Federal employees were 

not performing required hours of work 

while teleworking. 

OPM response: The Telework 

Enhancement Act of 2010, which built 

on earlier enactments, specifies roles, 

responsibilities, and expectations for all 

Federal executive agencies regarding 

telework policies, employee eligibility 

and participation, program 

implementation, and reporting. Under 

that statute, each agency is responsible 

for monitoring whether employees are 

performing required hours of work 

while teleworking. These regulations 

merely recognize the option of telework 

under authority of 5 U.S.C. chapter 65 

and explain how telework relates to the 

new types of leave. 

D. Comments Related to Specific 

Regulatory Amendments 

OPM discusses the regulatory changes 

to part 630 before turning to conforming 

changes to part 752. 

Amendment to § 630.206(a) 

Comment: Three unions, one 

professional association, and an 

individual objected to the removal of 

the provision at § 630.206(a) that 

agencies traditionally used to excuse 

employee absences of less than 1 hour. 

The union and the professional 

association said there are valid reasons 

for employee tardiness for which 

administrative leave should be granted. 

The union also mentioned the hardship 

on employees with children in daycare. 

The union said that agencies should 

continue to have their current discretion 

to grant excused absence in any such 

circumstances. A second union added 

that it was unfortunate that OPM 

believes it necessary to remove this 

provision without any firm data 

indicating some type of adverse impact. 

A third union expressed concern about 

the second approval level now required 

and believed that removal of the 

provision is outside the scope of what 

Congress intended to address with the 

legislation. The professional association 

and an individual objected to the 

change because of the administrative 

burden. An agency asked if this removes 

a supervisor’s authority to grant 59 

minutes of excused absence. Another 

agency asked if the removal of the 

provision meant that the authority was 

now under the new administrative leave 

regulations. An individual suggested 

that the administrative leave regulations 

allow for use of a 59-minute rule 

without second-level management 

approval (e.g., to deal with employees 

who arrive late). 

OPM response: The new OPM 

regulation is not eliminating the 

possibility of an agency granting 

administrative leave in appropriate 

circumstances when an employee 

arrives late but is simply clarifying the 

authority under which the agency is 


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authorizing such administrative leave. 

There was never clear authority to grant 

excused absence for leave less than one 

hour under annual and sick leave 

statutes. As we explained in the 

preamble of the proposed rule, 

§ 630.206(a) was not an authority for 

creating a type of paid time off, but 

merely recognized the existence of 

agency authority to provide brief 

periods of excused absence under 

Comptroller General decisions. Now 

that OPM has authority to regulate the 

use of administrative leave under 

section 6329a, it is appropriate for this 

application of administrative leave to be 

covered under these new regulations. 

Since section 6329a is now the 

exclusive authority for administrative 

leave for employees covered by title 5, 

U.S. Code, any excused absence for 

tardiness should be documented as 

administrative leave and included in 

agency reports so that, among other 

reasons described in this preamble, 

Congress has complete information 

about administrative leave. Agencies 

have discretion under the section 6329a 

authority to continue to grant 

administrative leave for these brief 

periods, if determined to be appropriate. 

The preferred action is to continue 

allowing employees to adjust their stop 

time under a flexible work schedule 

within the flexible time bands 

established by the agency or to use 

annual or other appropriate leave. OPM 

recognizes, however, that there may be 

occasions when an agency believes 

administrative leave is appropriate. 

Subject to the principles and 

prohibitions in § 630.1403, agencies 

have considerable discretion in granting 

such administrative leave. 

As described further below, these 

regulations only require a second level 

of approval to grant administrative leave 

if an agency head or authorized delegee 

has not adopted policies that allow firstline supervisors to grant a specified 

amount of administrative leave in a 

specifically defined circumstance. 

Regarding the administrative burden 

concern, agencies must account for all 

hours within an employee’s tour of 

duty, regardless of whether the 

employee is at work, on leave or leave 

without pay, using compensatory time 

off or credit hours, or is absent for any 

other reason. A decision not to provide 

administrative leave for absences under 

1 hour simply requires application of 

normal procedures. 

Subpart N—Administrative Leave 

Section 630.1401—Purpose and 

Applicability 

Comment: One agency asked if the 

Administrative Leave Act replaced 

agency authority under 5 U.S.C. 301– 

302 or if agencies still retain authority 

to grant administrative leave on matters 

not addressed in the regulations. An 

individual asked whether the 

Administrative Leave Act eliminated, 

superseded, or replaced the authority in 

sections 301–302. The individual noted 

that the limits imposed by the Act 

would nullify existing collective 

bargaining agreement provisions on the 

granting of administrative leave and that 

agencies may want to continue to use 

the sections 301–302 authority to 

preserve those provisions. 

OPM response: The statutory language 

of the Act does not specifically address 

agencies’ preexisting authority in 

sections 301–302. Section 301 provides 

in pertinent part that the ‘‘head of an 

Executive department . . . may 

prescribe regulations for the government 

of his department, [and] the conduct of 

its employees . . . .’’ Section 302 

authorizes an agency head to delegate 

the authority ‘‘to take final action on 

matters pertaining to the employment, 

direction, and general administration of 

personnel under his [or her] agency.’’ 

OPM does not regulate agencies’ 

management authority under sections 

301–302 (or other statutes that grant 

agencies similar management authority 

to grant particular types of leave), so in 

this final rule OPM does not opine as to 

what agencies can or cannot do under 

sections 301–302. 

It is OPM’s view, however, that 

section 6329a is the exclusive 

administrative leave authority for 

employees covered by title 5, U.S. Code. 

Section 6329a of the Act defines 

‘‘administrative leave’’ as leave without 

loss of or reduction in (1) pay; (2) leave 

to which an employee is otherwise 

entitled under law; or (3) credit time for 

time or service; and ‘‘that is not 

authorized under any other provision of 

law.’’ [Emphasis supplied]. Investigative 

leave and notice leave are similarly 

defined, except that investigative leave 

may only be approved for an employee 

who is the subject of an investigation 

(section 6329b(a)(7)), and notice leave 

may only be approved for an employee 

who is in a notice period (section 

6329b(a)(8)). 

The Administrative Leave Act in 

section 6329a(c)(1) states that the 

‘‘Director . . . shall prescribe 

regulations to carry out this section; and 

prescribe regulations that provide 

guidance to agencies regarding 

acceptable agency uses of administrative 

leave and the proper recording of 

administrative leave and other leave 

authorized by law.’’ Under section 

6329b(h)(1) of the Act, the ‘‘Director 

shall prescribe regulations to carry out 

this section, including guidance to 

agencies regarding acceptable purposes 

for the use of investigative leave and 

notice leave.’’ This subsection also 

provides that OPM shall regulate ‘‘the 

proper recording’’ of investigative leave 

and notice leave, ‘‘and other leave 

authorized by law.’’ Section 6329c(d) 

provides similar language regarding 

appropriate purposes for, and proper 

recording of, weather and safety leave. 

Thus, the Act gives OPM authority to 

regulate regarding acceptable purposes 

for using administrative leave, 

investigative leave, notice leave, and 

weather and safety leave, and requires 

OPM to regulate the ‘‘proper recording’’ 

of those types of leave, as well as other 

leave authorized by law. 

As noted above, the specific issue of 

the continued vitality of other excused 

absences under sections 301–302 (i.e., 

other excused absences not defined as a 

type of administrative leave under the 

Act) is beyond the scope of these 

regulations, and we do not address their 

use in this final rule. 

Agencies should be mindful, though, 

that any such grants may also be subject 

to internal and external oversight, 

including scrutiny by the agency Office 

of the Inspector General, GAO, and 

Congress, and agencies may have to 

justify any extraneous uses. 

Comment: The individual also asked 

whether the Act currently impacts 

collective bargaining agreements and 

agency policies or if the impact will 

occur when agencies implement their 

policies in 270 days. 

OPM response: The provisions of the 

Administrative Leave Act supersede any 

conflicting provisions in agency policies 

or a collective bargaining agreement. 

Once this regulation is prescribed, any 

new collective bargaining agreement 

must be consistent with the regulation. 

Any conflicting provisions in a preexisting collective bargaining agreement 

will prevail over regulatory 

requirements only until such time as the 

current term of the collective bargaining 

agreement expires (whether or not the 

agreement is officially reopened for 

negotiations or is automatically renewed 

through a rollover provision). As 

provided in the Act, agencies must 

‘‘revise and implement the internal 

policies of the agency’’ no later than 270 

days after related regulations are 

prescribed so that those policies 


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16See sections 6329a(c)(2) and 6329b(h)(2). In the 

proposed rule, OPM stated that, for the final rule, 

OPM intended to specify that the regulations for 

subparts N and O (dealing with administrative leave 

and investigative/notice leave, respectively) ‘‘will 

take effect 270 days after publication by specifying 

a separate ‘implementation date.’’’ 82 FR 33263, 

33264.To be clear, the effective date of this final 

rule is 30 days after publication and the date by 

which agencies must revise and implement their 

internal policies to meet the requirements of the 

Administrative Leave Act and these regulations is 

270 days from the date these regulations are 

published. 

17See sections 6329a(d), 6329b(i), and 6329c(e). 

18Notably, the 14-day annual limitation on the 

number of days the VA may ‘‘place’’ an employee 

on administrative leave or other paid non-duty 

status in 38 U.S.C. 717, enacted days before the 

Administrative Leave Act, applies only to VA 

employees who are subject to an investigation to 

determine whether they should be subject to any 

disciplinary action under title 38 or title 5 or 

against whom any disciplinary action is proposed 

or initiated under title 38 or title 5. See 38 U.S.C. 

717(c). This further supports OPM’s reading that the 

10-day annual period in section 6329a(b)(1), 

limiting the number of days an agency ‘‘may place’’ 

an employee on administrative leave under the 

Administrative Leave Act was meant to apply to 

agency-directed administrative leave for 

investigative purposes, as explained below. 

19See, e.g., 5 U.S.C. 3151(a)(7), 3396(c); 50 U.S.C. 

3610(a)(1)(G). 

conform with the law and regulations.16

There is no similar delayed agency 

implementation provision governing 

weather and safety leave, and thus the 

weather and safety leave regulations 

were implemented 30 days after the 

April 10, 2018, publication date. 

Comment: One individual commented 

that the statutory authority at section 

6329a(d) conflicts with the statutory 

authority at 38 U.S.C. 7421 and asked 

how OPM would reconcile the two. The 

same individual asked how 38 U.S.C. 

717 applied to proposed §§ 630.1404(a) 

and 630.1504(a). 

OPM response: Chapter 74 of title 38, 

U.S. Code, applies to personnel of the 

Veterans Health Administration (VHA), 

a component of the Department of 

Veterans Affairs. The statute at 38 

U.S.C. 7421 applies exclusively to VHA 

physicians, dentists, podiatrists, 

optometrists, registered nurses, 

physician assistants, expanded-duty 

dental auxiliaries, and chiropractors. 

While these employees are, by default, 

covered by title 5, U.S. Code, leave 

provisions (since they are ‘‘employees’’ 

under 5 U.S.C. 2105), the Department of 

Veterans Affairs (VA) may, generally, 

use the section 7421 authority to 

exclude them from title 5, U.S. Code, 

leave provisions and to create 

alternative leave rules for them. 

However, in each of the sections 6329a, 

6329b, and 6329c, there are provisions 

requiring VA to apply those sections 

‘‘notwithstanding’’ the section 7421 

authority.17 The Administrative Leave 

Act provisions, therefore, apply to VHA 

employees notwithstanding the section 

7421 authority to prescribe leave 

benefits. 

The statute at 38 U.S.C. 717 was 

enacted via Public Law 114–315, title V, 

section 503(a)(1) on December 16, 2016, 

while the Administrative Leave Act was 

enacted a few days later on December 

23, 2016. Under section 717, the 

Secretary of the VA may not place any 

covered individual (i.e., those subject to 

an investigation or who are facing 

disciplinary action) on administrative 

leave, or any other type of paid nonduty status without charge to leave, for 

more than a total of 14 days during any 

365-day period.18 Section 717 also 

authorizes the Secretary of VA to waive 

the 14-day limit if the Secretary notifies 

Congress of the reasons for an extension. 

That VA employees are covered under 

a VA-specific administrative leave 

limitation does not except them from 

coverage under the Administrative 

Leave Act. We note that VA employees 

are covered under the Administrative 

Leave Act’s definition of ‘‘agency’’ 

under sections 6329a(a)(2)(B), 

6329b(a)(1)(B), and 6329c(a)(1)(B). Both 

laws can be applied simultaneously. 

Comment: Nine individuals opposed 

the application of the administrative 

leave regulations, and particularly the 

10-workday calendar year limit, to VA 

employees. These individuals cited 

several activities for which they 

maintained VA granted excused 

absences in the past, including research, 

teaching, training, medical education 

and certification, attending conferences 

and scientific meetings, travel to other 

VA stations or Federal agencies for 

support or educational purposes, 

conducting grant reviews or serving on 

panels at other agencies, reporting on 

VA research findings and models to 

stakeholders and professional societies, 

and sabbaticals. The individuals felt 

that the regulations would seriously 

impair VA patient care, education, and 

research efforts and would negatively 

affect recruitment and retention. 

OPM response: Congress specifically 

provided in the Administrative Leave 

Act that section 6329a ‘‘shall apply’’ to 

an employee covered by 38 U.S.C. 

7421(b), ‘‘notwithstanding subsection 

(a) of section 7421.’’ Through this 

enactment, Congress required VA 

employees covered by leave programs 

established under section 7421(a) to be 

subject to section 6329a. While these 

VA employees are covered by the 

statute, as explained later in this 

preamble, the annual 10-workday 

period only applies to administrative 

leave for investigative purposes. Also, 

many of the activities cited by the 

commenters might more appropriately 

be classified as ‘‘on-duty’’ time, which 

does not require the granting of 

administrative leave. For instance, if VA 

determines that research, teaching, grant 

reviews or other support activities are 

components of an employee’s duties 

and are justified under agency 

appropriations, these activities would 

not require the granting of 

administrative leave. Likewise, 

administrative leave is not needed for 

training, conferences, and meetings that 

are authorized under sections 4109 and 

4110 and the regulations at § 410.404. 

However, administrative leave is 

generally not appropriate for sabbaticals 

that would provide paid time off for 

lengthy periods of time. When Congress 

has sought to allow certain Federal 

employees to take sabbaticals, it has 

provided specific authority via 

legislation.19 We note that VA may 

consider whether it can provide 

sabbaticals under its section 7421 

authority to establish ‘‘conditions of 

employment.’’ VA may also consider 

whether certain sabbaticals qualify as 

special work assignments rather than as 

‘‘leave’’ (as can be done with certain 

assignments made under 5 U.S.C. 3371– 

3376). 

Comment: One commenter believed 

that VA activities for which excused 

absence had been granted in the past 

would no longer qualify because 

proposed § 630.1403(a)(3) limits the 

duration of administrative leave to ‘‘not 

more than 1 workday.’’ 

OPM response: OPM’s final rule does 

not bar leave longer than 1 workday. 

While § 630.1403(a)(3) states that 

administrative leave ‘‘is appropriately 

used for brief or short periods of time— 

usually for not more than 1 workday’’ it 

specifies that ‘‘[a]n incidence of 

administrative leave lasting more than 1 

workday may be approved when 

determined to be appropriate by an 

agency.’’ 

Section 630.1402—Definitions 

Comment: The preamble discussion 

on the proposed § 630.1402 stated that 

the 5 days of excused absence for 

employees returning from active 

military duty granted by the Presidential 

memorandum of November 14, 2003, is 

not considered administrative leave. 

One commenter asked if this meant that 

the 5 days would no longer be granted 

or if the 5 days now belong to a separate 

leave category. 

OPM response: The 5 days of excused 

absence for employees returning from 

active military duty is authorized by a 

Presidential directive. As noted in the 


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20See section 1138(b)(1) of the Act. 21See e.g., Comptroller General decision B 

156287, February 5, 1975, at http://www.gao.gov/ 

products/452029#mt=e-report. Comptroller General 

decisions may be found at http://www.gao.gov/ 

search?advanced=1. 

22See infra note 5. 

definition of administrative leave in 

§ 630.1402, administrative leave does 

not encompass leave authorized by 

Presidential directives. The President is 

acting under the President’s authority 

under the Constitution; thus, excused 

absence provided by Presidential 

directive is leave that is authorized 

under another provision of law and is 

excluded from the statutory definition 

of administrative leave in section 

6329a(a)(1). Also, section 6329a limits 

only actions by agencies, not actions by 

the President. Thus, the 5 days of 

excused absence authorized by the 

Presidential memorandum is not 

administrative leave under section 

6329(a)(1) and, as such, these 

regulations do not affect this 

entitlement. 

Comment: An agency requested 

clarification on the proper use of 

administrative leave authorized by 

Congress or Presidential directive, 

which the agency said appears 

inconsistent with the regulatory 

provision at § 630.1403(a)(2) that 

administrative leave be granted 

sparingly. The agency also requested 

that OPM expressly address other 

potential uses of administrative leave to 

aid agencies that will need to 

renegotiate labor agreements in light of 

the statutory 10-workday calendar year 

limit in section 6329a. 

OPM response: The definition of 

administrative leave in § 630.1402 

excludes paid leave authorized by 

statutes other than section 6329a and by 

Presidential directives issued under the 

President’s authority. Therefore, the 

treatment of leave authorized by other 

statutes and Presidential directives is 

excluded from these subpart N 

regulations. 

Comment: One agency said that in 

sections of the proposed rule, OPM used 

the term administrative leave to refer to 

investigative leave, notice leave, and 

weather and safety leave. The agency 

recommended that OPM redefine 

administrative leave to exclude these 

other types of leave. 

OPM response: Following review of 

the proposed rule, OPM did not find 

any instances where the term was used 

incorrectly. The definition of 

administrative leave in § 630.1402 

clearly provides that it applies only to 

leave authorized under section 6329a 

and subpart N. 

Comment: Three agencies and an 

individual asked about other paid leave 

in relation to the regulations— 

specifically, court leave, bone marrow 

and organ donation leave, funeral leave, 

disabled veteran leave, and the 4 hours 

of excused absence for preventive health 

screenings for employees with low sick 

leave balances under Presidential 

Memorandum of January 4, 2001. 

Commenters asked whether these types 

of leave were subject to the 10-workday 

annual limit under section 6329a. 

OPM response: Leave entitlements 

authorized under other statutes or 

Presidential directives are not subject to 

section 6329a and subpart N, so they are 

not considered administrative leave. 

Also, as explained below, the 10-day 

annual limit in section 6329a applies to 

administrative leave for investigative 

purposes, not the types of leaves 

identified in the comments above. 

Comment: An agency recommended 

adding a definition for ‘‘excused 

absence.’’ 

OPM response: The Act did not define 

‘‘excused absence’’ and the regulations 

refer to ‘‘excused absence’’ only in the 

definition of Presidential directive, the 

meaning of which is self-evident. 

Therefore, OPM is not adding this 

definition as we do not consider it to be 

necessary. 

Comment: One agency recommended 

that the definition of agency conform to 

the definition of agency in the annual 

and sick leave regulations. 

OPM response: The term agency has 

differing definitions in five other 

subparts of 5 CFR part 630. Accordingly, 

OPM has defined agency in § 630.1402 

based on the statutory definition at 

section 6329a(a)(2). The definition of 

‘‘agency’’ specified in the Act must be 

applied in these regulations. OPM has 

also clarified the meaning of the term 

agency in the context of describing an 

authorized agency official empowered 

to make a determination and take 

action. 

Section 630.1403—Principles and 

Prohibitions 

Comment: One agency commented 

that the regulations governing agency 

use of administrative leave are too 

restrictive and that, without a statutory 

basis, they specifically target collective 

bargaining agreements as well as 

administrative leave used for the benefit 

of a labor organization. A union 

objected to the general principles set out 

in § 630.1403(a)(1), which the union 

said OPM based on unspecified past 

OPM policy and guidance and unnamed 

Comptroller General decisions. 

OPM response: The regulations 

establish parameters for the granting of 

administrative leave in accordance with 

appropriations laws and for 

differentiating administrative leave from 

on-duty time and other authorized paid 

absences. The proposed rule at 

§ 630.1403(a)(1) established three 

criteria where administrative leave is 

allowed: (1) the absence is directly 

related to the agency’s mission, (2) the 

absence is officially sponsored or 

sanctioned by the agency, or (3) the 

absence is in the interest of the agency 

or of the Government as a whole. The 

proposed regulations reflected basic 

principles consistent with the sense of 

Congress section of the Administrative 

Leave Act, which references precedent 

by the Comptroller General and OPM 

guidance.20 There are numerous 

Comptroller General decisions on 

administrative leave and excused 

absence.21 OPM policy guidance on 

administrative leave is provided in 

reference materials by OPM 22 and 

historically in the former Federal 

Personnel Manual. The list of allowable 

criteria in the proposed § 630.1403(a)(1) 

largely mirrored OPM’s longstanding 

guidance regarding the appropriate uses 

of administrative leave. OPM’s 

guidance, however, includes a fourth 

category that was excluded from the 

proposed rule: ‘‘The absence will clearly 

enhance the professional development 

or skills of the employee in the 

employee’s current position.’’ OPM has 

decided to add this criterion to the list 

of allowable uses of administrative leave 

in the final rule. Its inclusion allows 

agencies to act consistent with OPM’s 

longstanding guidance and provides the 

flexibility with which agencies are 

familiar. OPM will be updating its 

guidance materials on administrative 

leave to reflect these regulations. 

Comment: Two agencies, three 

unions, and a professional association 

commented on the provision at 

§ 630.1403(a)(4) that prohibits agencies 

from establishing administrative leave 

as an ongoing or recurring entitlement. 

One agency said that the provision 

appeared to be aimed at banning all 

collective bargaining agreement 

language that provides for the granting 

of administrative leave in specified 

circumstances. Another agency asked if 

the provision prohibited agency policy 

from addressing administrative leave for 

blood donations and voting. Two unions 

objected on the basis that an employee 

who qualifies for the administrative 

leave should receive it regardless of 

whether the provision of the leave is 

recurring. One union said that this 

provision was not needed because 

birthdays and the day after a Thursday 

holiday could be listed as a specific 

prohibited use under paragraph (b) of 

the section. The union also felt that 


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23See section 6329a(b)(1), stating that an agency 

‘‘may’’ approve administrative leave. 

24Congress has the authority to establish 

recurring entitlements to paid time off in law (e.g., 

paid holidays under chapter 61 or various types of 

paid leave under chapter 63), and, thus, the creation 

of new recurring paid time off entitlements should 

be reserved to Congress. 

25See the definition of administrative leave under 

§ 630.1402. 

26See also section 6104. 

requiring leave to be granted on an ad 

hoc basis would lead to uneven 

application. The professional 

association noted that, in its experience, 

administrative leave for recurring 

events, like birthdays and in 

conjunction with holidays, has not been 

granted to employees with any 

frequency. In addition, it said that 

§ 630.1403(a)(4) as it pertains to 

administrative leave in conjunction 

with holidays is erroneous, in that these 

are generally granted under the 

administrative dismissal authority at 5 

CFR part 610, subpart C. The association 

also believed that this section was 

contrary to the authority of the 

President to close the Federal 

government by executive order. 

OPM response: The proposed 

regulations at § 630.1403(a)(4) were not 

intended to bar recurring use of 

administrative leave; the intent was to 

bar establishing a recurring use as an 

entitlement. The plain language of the 

Act makes clear that the approval of 

administrative leave is at the agency’s 

discretion, and that such leave is not an 

entitlement of the employee.23 OPM’s 

intent was to ensure that agencies retain 

control of administrative leave and are 

always able to grant or deny use of such 

leave based on mission needs. 

Otherwise, the authority could be used 

in a manner never contemplated by 

Congress—to create new open-ended 

entitlements to ‘‘holidays’’ or new types 

of paid leave entitlements with no 

agency discretion—an area over which 

Congress has traditionally asserted 

control.24

OPM appreciates these comments and 

clarifies that this provision does not 

prohibit agencies from providing 

administrative leave on an ad hoc basis 

or limited basis for a recurring activity 

that otherwise meets one of the 

acceptable use criteria. For example, 

agencies may establish in policy, 

approved by the agency head, that 

authorized agency officials may make ad 

hoc determinations to grant 

administrative leave for a specified 

activity (e.g., blood donations or voting). 

Such a policy might provide that a firstlevel supervisor can grant, on an ad hoc 

basis, up to 4 hours of administrative 

leave to an employee to donate blood in 

an agency-sponsored drive after 

determining that such leave is 

appropriate. 

OPM has revised the regulatory 

language to ensure that it conveys the 

intended purpose—namely, that (1) 

administrative leave is not an 

entitlement, and an agency retains the 

discretion to grant or not grant 

administrative leave in any 

circumstance based on agency 

judgments regarding mission needs, (2) 

generally, administrative leave should 

be granted on an ad hoc, event-specific, 

or time-limited basis, and (3) there is no 

categorical prohibition on 

administrative leave being granted for a 

recurring event, but rather that it cannot 

be a recurring entitlement that 

eliminates agency discretion. 

The regulatory language in 

§ 630.1403(a)(4), moreover, does not 

include separate requirements for 

recurring events like employee 

birthdays or holidays. In the preamble 

to the proposed regulations, OPM stated 

that agencies should not provide 

administrative leave for employees’ 

birthdays or the day following a 

Thursday holiday as a recurring 

entitlement (that is, with no agency 

discretion to consider mission needs). 

As explained above, OPM is clarifying 

in these regulations that agencies may 

not use administrative leave to establish 

recurring entitlements that eliminate 

agency discretion over granting the 

leave. 

A commenter expressed the view that 

§ 630.1403(a)(4) was contrary to the 

authority of the President to close the 

Federal Government by executive order. 

The President may establish a special 

holiday under 5 U.S.C. 6103(b). Such a 

holiday is not a use of administrative 

leave and is not governed by section 

6329a or these regulations.25

A commenter also misunderstands the 

application 5 CFR part 610, subpart C, 

which applies only to a very small 

segment of Federal employees paid at 

daily, hourly, or piecework rates who 

could not otherwise receive paid time 

off received by most employees (e.g., on 

a holiday). It cannot be used as an 

authority to grant administrative 

dismissals to other employees.26

Comment: Two agencies and a union 

asked for OPM to clarify whether 

administrative leave is used for union 

official time. One agency felt that the 

regulations specifically targeted 

administrative leave used for the benefit 

of a labor organization. 

OPM response: Union official time 

granted pursuant to 5 U.S.C. 7131 is a 

specific type of work time during which 

the employee otherwise would be 

performing the duties of the employee’s 

assigned position, for which grants of 

administrative leave would not be 

necessary or appropriate. By definition, 

administrative leave does not include 

activities that qualify as hours of work 

(§ 630.1402). Under section 7131, 

official time is treated as work time for 

which employees receive basic pay. 

Section 7131(a) and (c) authorize official 

time for specific representational 

purposes. Section 7131(b) prohibits 

official time for internal union business. 

And section 7131(d) provides authority 

for an agency and exclusive 

representative to negotiate official time 

for any other matter covered by 5 U.S.C. 

chapter 71 and which they agree to be 

reasonable, necessary, and in the public 

interest. Finally, payroll systems already 

have separate payroll codes for the 

various categories of official time, which 

are not impacted by these regulations. 

Therefore, agencies have sufficient 

authority to provide official time for use 

by representatives of a labor 

organization. 

Finally, these regulations do not target 

any particular use or use by any group. 

Rather, they are designed to comply 

with statutory requirements and to 

implement Congress’ intent as to what 

comprises the acceptable uses of 

administrative leave. 

Comment: One agency and two 

individuals were concerned with the 

impact of the regulations on settlement 

agreements. The agency noted that it 

made extended administrative leave 

substitutions on timekeeping records 

pursuant to orders, settlements, and 

agency decisions. One individual stated 

that excused absence under a thirdparty settlement agreement should be 

excluded from the limits under subpart 

N. 

OPM response: As a general principle, 

settlements must comport with 

applicable law and regulation. They 

may not include provisions that provide 

aspects of relief that the agency is not 

free to grant under applicable law. If an 

agency determines, on a prospective 

basis, that it is appropriate to use 

administrative leave under section 

6329a as part of a settlement agreement, 

such use will be subject to its statutory 

conditions and regulatory requirements. 

If other statutory authorities are relied 

on to grant paid nonduty status on a 

prospective basis as part of a settlement 

agreement, then the paid nonduty status 

is not considered to be administrative 

leave under section 6329a. 

A retroactive period of paid nonduty 

status may be provided under the Back 

Pay Act (section 5596) or under a 

settlement under that law. Such a 

period of paid nonduty status does not 


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constitute administrative leave under 

section 6329a since it is not ‘‘leave’’ and 

is authorized by operation of another 

law. Retroactive salary payments to 

cover a period of erroneous separation 

are a correction of an erroneous 

personnel action that is authorized 

under the back pay law. These 

payments would be included under the 

definition of ‘‘pay, allowances, and 

differentials’’ in § 550.803 (pay, leave, 

and other monetary employment 

benefits to which an employee is 

entitled by statute or regulation). They 

are payments for nonwork periods 

authorized by the back pay law, not a 

use of discretionary administrative 

leave, and should not be designated as 

administrative leave in timekeeping 

records. 

Comment: One individual commenter 

argued that agencies should not grant 

administrative leave prior to a holiday. 

OPM response: Administrative leave 

is an agency discretionary authority; 

therefore, each agency makes 

determinations regarding when and for 

what purposes (including as a goodwill 

gesture to address employee morale) it 

provides administrative leave. The 

regulations at § 630.1403 set out certain 

principles and prohibitions on use of 

administrative leave but do not 

otherwise restrict agencies from 

exercising their discretionary authority 

in granting this leave. OPM is adding a 

new paragraph (6) in § 630.1403(a) that 

lists factors agencies are required to 

consider as they develop policies and 

make case-specific decisions regarding 

the use of administrative leave. 

Consideration of these factors, in 

combination with guiding principles, 

will help agencies exercise their 

discretion with respect to administrative 

leave in a prudent manner. 

Comment: Two unions opposed the 

provision at proposed § 630.1403(a)(3) 

that states administrative leave is 

appropriately used for brief or short 

periods of time. One of the unions 

stated that the duration should be at the 

agency’s discretion or as provided under 

negotiated policies. Both unions 

recommended that OPM remove the 

provision so as not to mislead agencies 

on Congressional intent. 

OPM response: The ‘‘Sense of 

Congress’’ provisions at section 

1138(b)(2) of the Administrative Leave 

Act explicitly state that ‘‘administrative 

leave should be used sparingly.’’ At 

section 1138(b)(1)(A), Congress 

recognized the ‘‘established precedent 

of the Comptroller General’’ and 

‘‘guidance provided by the Office of 

Personnel Management’’ as having 

provided appropriate and reasonable 

standards for Governmentwide 

administrative leave policy. Numerous 

Comptroller General decisions have 

held that administrative leave should be 

granted only for brief periods of time. 

This has been OPM’s longstanding 

policy as reflected in its historical 

guidance and its public fact sheet on 

administrative leave. OPM notes that 

while § 630.1403(a)(3) states that 

administrative leave is appropriately 

used for brief periods of time, it also 

permits agencies the ability to approve 

longer periods when appropriate, at 

their discretion. This caveat is described 

further, below, with regard to agencyspecific policies established by the head 

of an agency. 

Comment: An individual 

recommended that employees be 

permitted to use administrative leave for 

voluntary community service. 

OPM response: OPM does not believe 

that the proposed § 630.1403(b)(4) 

would have barred administrative leave 

for voluntary community service. It 

provided that such administrative leave 

was permitted if it was officially 

sponsored or sanctioned by the head of 

the agency based on the agency’s 

mission or Governmentwide interests, 

which ties these provisions with the 

general principles in § 630.1401(a)(1). 

As explained previously, however, OPM 

will include a fourth category to the 

general principles in § 630.1403(a)(1) 

that was excluded from the proposed 

rule: the absence will clearly enhance 

the professional development or skills 

of the employee in the employee’s 

current position. The inclusion is 

consistent with OPM’s longstanding 

guidance. OPM also is not adopting the 

proposed prohibition in 

§ 630.1403(b)(4), since it is unnecessary; 

the requirements to satisfy one or more 

of the general principles in 

§ 630.1401(a)(1) and to operate under 

approved agency policies is sufficient to 

prevent inappropriate use of 

administrative leave in community 

service situations. 

Comment: Another individual 

commented that the regulations should 

discuss scenarios where administrative 

leave is not needed because employees 

are considered to be on duty time. A 

second commenter recommended that 

OPM add guidance that sets parameters 

on the granting of administrative leave 

for holiday parties, employee 

recognition days, and similar infrequent 

social events. A union commented that 

OPM should note that on-duty activities 

such as award ceremonies and training 

can be voluntary in nature. 

OPM response: Certain activities 

occurring during an employee’s work 

hours are generally considered on-duty 

events for which administrative leave 

does not apply. These include agencysponsored events (e.g., award 

ceremonies), employee human resources 

matters, management-approved teambuilding activities (e.g., holiday social 

gatherings), and training, conferences, 

and meetings that are authorized under 

sections 4109 and 4110 and the 

regulations at § 410.404. At the agency’s 

discretion, attendance at these on-duty 

activities can be voluntary. Other 

activities, although they occur during 

employee work hours, are generally not 

considered on-duty activities. For 

example, activities related to employee 

wellness and health generally are not 

considered as duty time; however, 

longstanding policy reflected in 

Comptroller General decisions is that 

the agency interest in employee health 

justifies use of brief periods of 

administrative leave for these activities. 

Agencies will retain discretion in 

determining whether certain activities 

are on-duty events for purposes of 

implementing the Administrative Leave 

Act and this final rule. 

Comment: A union believed that dual 

status employees should receive 

administrative leave for required 

military medical examinations and the 

diagnosis and treatment of medical 

conditions caused or aggravated by 

military service. 

OPM response: If the employing 

agency determines that this is an 

appropriate use under the general 

principles at § 630.1403(a), it has the 

discretion to grant administrative leave. 

Comment: One agency stated that the 

administrative leave definition should 

exclude leave for Federal employees 

stationed overseas when they observe 

foreign holidays. The same agency 

asked whether administrative leave may 

still be provided for rest and 

recuperation (R&R). 

OPM response: OPM has no authority 

under laws it administers to authorize 

paid time off for local holidays in 

foreign areas beyond the holidays 

provided under section 6103. An agency 

may, however, use the administrative 

leave authority in section 6329a if it 

determines the circumstances comply 

with the OPM regulations. For example, 

under § 630.1403(a)(4) in this final rule, 

an agency must retain the discretion to 

grant or not grant administrative leave 

in any particular circumstance based on 

agency judgments regarding mission 

needs. An agency cannot, therefore, 

create a paid holiday in a foreign area 

as an absolute entitlement. We expect 

that agencies with employees in foreign 

areas will determine whether to grant 

administrative leave in connection with 

a foreign holiday to some or all 

employees on a case-by-case basis. If 


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27See e.g., Comptroller General decision B– 

218840, Sept. 6, 1985, 64 Comp. Gen. 835 at http:// 

www.gao.gov/products/438969#mt=e-report. 

28See e.g., subchapter 11 of FPM Chapter 630, 

Sept. 23, 1991, and FPM Letters 792–15, April 14, 

1986, and 792–23, June 25, 1992. 

29See 41 CFR 302–5.17 and Comptroller General 

decision B–203196, Feb. 3, 1982. 

there is a safety-related basis for the 

time off, use of weather and safety leave 

may be appropriate. Agencies may also 

continue to provide administrative leave 

for R&R if the employing agency 

determines that this is an appropriate 

use under the general principles at 

§ 630.1403(a). 

Comment: Three agencies and a union 

sought clarification on physical fitness 

activities during duty hours. One of the 

agencies and the union recommended 

that physical fitness be classified as an 

on-duty activity and not require the 

granting of administrative leave. One 

agency asked if long-term physical 

fitness activities would be prohibited as 

a recurring activity under 

§ 630.1403(a)(4). Two of the agencies 

were concerned that the limitation on 

administrative leave would have a 

negative effect on wellness programs, 

with one agency stating that the 

limitation would significantly affect 

participation in agency-sanctioned and 

administered physical fitness activities. 

The same agency also requested that 

OPM clarify the application of this 

rulemaking on employees who have 

physical fitness requirements in 

connection to their position; i.e., 

military technicians of the Reserves and 

National Guard who must maintain 

military membership as a condition of 

employment of their civilian position. 

The union recommended that these dual 

status employees be authorized to 

engage in voluntary physical training as 

official hours of work. 

OPM response: Agencies, at their 

discretion, may permit employees with 

job-related fitness requirements (such as 

law enforcement officers) to participate 

in physical fitness programs while on 

duty. For other employees, physical 

fitness activities should normally be 

performed outside of duty hours unless 

an employee is using annual leave. 

When covered by a flexible work 

schedule, an employee may be able to 

shift work hours to create mid-tour 

breaks during which physical fitness 

activities may be performed. If an 

agency determines it is appropriate to 

provide administrative leave for brief 

periods of physical fitness activities for 

a limited time, it may grant such 

administrative leave on an ad hoc basis. 

The Comptroller General has found 

that ‘‘official duty time’’ for physical 

fitness activities is appropriate only for 

employees covered by a mandatory 

physical fitness program due to the 

strenuous nature of the position.27 That 

decision indicated that administrative 

leave was inappropriate for other 

employees in the absence of supporting 

guidance from OPM. OPM later issued 

guidance to recognize that short periods 

of excused absence (by definition, not 

‘‘duty’’ time) could be provided to 

employees in positions without 

mandatory physical fitness 

requirements.28 All administrative leave 

granted under section 6329a, including 

that which is granted for fitness 

programs, would have to be recorded 

and reported, as described below. 

Comment: An agency asked if the 

regulations will impact the 24 hours an 

agency grants for a Permanent Change of 

Station (PCS). The agency also asked if 

the 10-workday limit impacts 

administrative leave granted to new 

hires as a relocation incentive. 

OPM response: Employees on 

approved house-hunting trips under 

chapter 302, subpart C, of the Federal 

Travel Regulations are in duty status 

and do not require administrative 

leave.29 Also, as explained below, the 

10-workday limit in section 6329a does 

not apply to this type of leave. 

Comment: One union requested that 

OPM eliminate the requirement in 

proposed § 630.1403(a)(5)(i) that 

administrative leave be permitted under 

policies established by the head of the 

agency and instead require only that 

administrative leave be permitted under 

‘‘written agency policies.’’ The union 

said that the definition of head of the 

agency is unclear and overly restrictive, 

noting its application to Department of 

Defense subordinate departments. 

OPM response: OPM does not 

consider the definition of head of the 

agency in § 630.1402 to be unclear. 

Agency is defined in that section as 

meaning an Executive agency as defined 

at 5 U.S.C. 105. Under the statute, 

Executive agency means an ‘‘Executive 

department, a Government corporation, 

and an independent establishment.’’ 

The Executive departments are set out at 

5 U.S.C. 101 and include the DoD. 

Therefore, under the regulations, 

administrative leave policies for 

subordinate departments under the 

DoD, or any other agency, must remain 

within the discretion of the agency and 

must be established (or approved) by the 

head of the agency to help prevent 

abuse and to address Congressional 

concerns about inappropriate use of 

administrative leave. Agency heads are 

directly accountable for agency 

administrative leave policies. This 

regulation does not mandate how 

specific the agency top-level policy is 

and does not preclude subordinate 

organizations from making more 

specific policies under a delegation of 

authority. Those agency head policies 

may include general principles as well 

as specific rules. An agency head may 

delegate authority to lower-level 

officials to establish more specific 

policies if they are consistent with the 

agency head’s overarching policies. To 

assist agencies in developing 

appropriate policies on use of 

administrative leave, OPM is adding a 

new paragraph (6) in § 630.1403(a) that 

lists factors agencies are required to 

consider. 

Comment: Five agencies, a union, and 

an individual expressed concerns with 

proposed § 630.1403(a)(5)(ii), which 

provides that a determination to grant 

administrative leave for an absence 

must be reviewed and approved by an 

agency official higher than the official 

making the determination (unless there 

is no higher-level official). The agencies 

felt that this requirement diminished 

the authority of first-level supervisors, 

who they believed should be able to 

grant administrative leave for specific 

situations, such as blood donations or 

for occasions where less than an hour is 

needed. Two agencies and the union 

said a second level of review should not 

be needed where administrative leave is 

provided under agency policy. One 

agency believed the second level of 

review to be an administrative burden 

and recommended that heads of 

agencies have the authority to delegate 

further, such as to the heads of 

installations. Another agency said that 

the requirement would be time 

consuming for second-level officials, 

particularly for routine events. The 

union expressed concern that the 

second level of approval would cause 

administrative delays to the detriment 

of the employee, especially when the 

second-level official is not in the same 

building or there is a time zone 

difference. The union also said it was 

unaware of any evidence showing 

administrative leave abuse not related to 

investigations and concluded that the 

requirement for second-level review was 

unnecessary and inefficient. The 

individual suggested allowing agencies 

to determine the appropriate procedures 

and level of review. 

OPM response: As explained above, 

agencies may establish policies, 

approved by the head of the agency (or 

the agency head’s delegee), that provide 

specific circumstances (blood drives, 

voting, etc.) in which supervisors may 

grant a stated amount of administrative 

leave to employees without the need for 


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30Section 6329a(b)(1) (emphasis added). 

31Section 6329b(b)(1) (‘‘An agency may . . . 

place an employee in investigative leave if the 

employee is the subject of an investigation; [or] 

notice leave if the employee is in a notice period.); 

Section 6329b(b)(2) (‘‘An agency may place an 

employee in [investigative leave or notice leave] 

only if the agency has [identifying conditions]’’). 

32See, e.g., section 6302(d) (‘‘The annual leave 

. . . may be granted at any time during the year’’); 

section 6305 (‘‘After 24 months of continuous 

service . . . an employee may be granted 24 months 

[of home leave]); section 6310 (‘‘The head of the 

agency concerned may grant leave of absence . . . 

to alien employees’’); section 6323 (‘‘[Military 

leave] granted . . . shall not exceed 22 work 

days.’’). 

second-level review. OPM is revising 

the regulations to make clear that 

second-level approval is not necessary 

when a specific type of use and amount 

of administrative leave is permitted 

under agency head policies or 

supplemental policies issued by agency 

officials with specific delegated 

authority. At the same time, to support 

prudent use of administrative leave, 

OPM is adding a new paragraph (6) in 

§ 630.1403(a) that lists factors agencies 

must consider in developing policies on 

use of administrative leave. 

Comment: An agency asked what the 

intent is for the prohibition on 

administrative leave use for personal 

benefits in proposed § 630.1403(b)(2) 

and whether it precluded agencies from 

providing administrative leave for other 

purposes. 

OPM response: The proposed 

§ 630.1403(b)(2) would have barred 

administrative leave to participate in an 

event for the employee’s personal 

benefit or the benefit of an outside 

organization; however, there was an 

exception to the bar based on a 

determination that the employee’s 

participation would satisfy one or more 

of the general principles in 

§ 630.1401(a)(1). As explained above, 

however, OPM is adding a fourth 

category to § 630.1403(a)(1) that is 

excluded from the proposed rule: the 

absence will clearly enhance the 

professional development or skills of 

the employee in the employee’s current 

position. We are therefore not adopting 

the proposed prohibition in 

§ 630.1403(b)(2), since it is unnecessary 

and arguably inconsistent with the 

additional acceptable use in 

§ 630.1403(a)(1). The requirement to 

satisfy one or more of the general 

principles in § 630.1401(a)(1) and to 

operate under approved agency policies 

is sufficient to prevent inappropriate 

use of administrative leave in situations 

that provide a personal benefit to an 

employee or benefit an outside 

organization. 

Comment: One agency objected to the 

prohibition in proposed § 630.1403(b)(3) 

against granting administrative leave to 

recognize the performance or 

contributions of employees. The agency 

felt that this provision limited an 

agency’s ability to recognize its high 

performers in a cost-effective manner. 

OPM response: The provision at 

proposed § 630.1403(b)(3) prohibits an 

agency from granting administrative 

leave as a reward to employees but does 

not limit the agency’s ability to grant 

time off as a reward under other legal 

authority. As OPM noted in the 

preamble of the proposed rule, the 

proper personnel authorities for 

recognizing the performance or 

contributions of employees are cash 

awards and time-off awards (e.g., under 

section 4502(e) and 5 CFR 451.104). 

Comment: Another agency 

commented that the regulations will 

necessitate a change in the timekeeping 

for 10-month faculty at an academy as 

their two non-working months were 

recorded as administrative leave. 

OPM response: OPM agrees; these 

employees are in an off-duty paid status, 

not on administrative leave. The agency 

will need to work with its payroll 

provider for the appropriate coding 

under the timekeeping system. 

Section 630.1404—Calendar Year 

Limitation 

Comment: A union asked for 

clarification on whether the calendar 

year for purposes of applying the 10- 

workday limit for placement on 

administrative leave is January 1 to 

December 31 or is 12 consecutive 

months from any day during the year. 

Two agencies recommended that, for 

consistency, administrative leave be 

tracked by the year used for other leave 

purposes. An individual said that all 

other leave (except military leave) is 

based on the leave year and that using 

a calendar year for administrative leave 

would be difficult. The individual 

recommended using the leave year or 

payroll calendar year. The same 

individual asked if a period of 

administrative leave that continues into 

another year counts toward the 10- 

workday limit for the new year. Another 

individual asked that OPM consider 

using a rolling year instead of a calendar 

year. Another commenter suggested that 

OPM’s proposed rule, applying the 10- 

workday limitation to all administrative 

leave was incorrect and that it should 

only apply to administrative leave for 

investigative purposes. 

OPM response: First, OPM agrees that 

the 10-workday limitation in section 

6329a of the Administrative Leave Act 

does not apply to general uses of 

administrative leave, but instead was 

meant to apply to management-initiated 

actions to ‘‘place’’ an employee on 

administrative leave, with or without 

the employee’s consent, for the purpose 

of investigating an employee’s conduct, 

performance, or other reasons 

prompting an investigation that could 

lead to an adverse personnel outcome. 

OPM is therefore modifying this aspect 

of its proposed rule. 

Section 6329a states that: ‘‘During any 

calendar year, an agency may place an 

employee in administrative leave for a 

period of not more than a total of 10 

work days.’’ 30 The language—‘‘an 

agency may place’’—suggests that the 

action to put the employee in 

administrative leave status is initiated 

and controlled by management, with or 

without the employee’s consent. Indeed, 

this is the same language that Congress 

used to describe an employee being in 

investigative leave or notice leave.31 It is 

plainly not the language that Congress 

used throughout 5 U.S.C. chapter 63 to 

describe other types of leave. Instead, 

chapter 63 uses the more obvious 

‘‘grant,’’ and it does so with respect to 

multiple types of leave.32 Also, there is 

a direct connection to the 10-workday 

annual limit in the law governing 

investigative leave in section 6329b. 

Section 6329b(b)(3)(A) bars use of 

investigative leave until the ‘‘expiration 

of the 10 workday period described in 

section 6329a(b)(1).’’ This connection 

supports the conclusion that the 10- 

workday annual limit was intended to 

cover the same investigations as those 

described in section 6329b, not more 

general uses of administrative leave. 

Moreover, interpreting the 10- 

workday annual limit as applicable to 

more general uses of administrative 

leave could lead to illogical results. 

Take, for example, an employee who in 

January is placed on 10 days of 

administrative leave for investigatory 

purposes. After those 10 days, the 

agency determines that there is no need 

to place the employee on investigative 

leave and the employee returns to her 

normal work status. If the 10-day annual 

limitation applies to general uses of 

administrative leave, then, for the 

remainder of the year, the employee 

would never be able to use 

administrative leave—not for voting, or 

a blood drive, or a COVID vaccine, or 

any other plainly acceptable and 

appropriate use—because the employee 

had already been placed on 

administrative leave for investigatory 

purposes. OPM does not believe that 

Congress intended such a nonsensical 

result. 

This understanding of the 10-workday 

limitation on administrative leave—that 


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it only applies to agency-directed 

placement on administrative leave for 

investigative purposes—not only is 

firmly grounded in the statutory text 

and structure but is also consistent with 

and supported by the legislative history. 

The House and Senate Reports indicate 

that the Administrative Leave Act was 

primarily created in response to 

concerns about abuse related to 

disciplinary proceedings. Both Reports 

heavily cite the 2014 GAO report 

specifically focused on these types of 

abuses. The main impetus for the Act 

was to address (1) inconsistent use of 

administrative leave among agencies 

and excessive use of administrative 

leave while conducting misconduct and 

disciplinary proceedings and (2) 

inconsistent recordkeeping which made 

oversight of administrative leave 

difficult. 

The legislative history evolved over 

time but remained focused on 

administrative leave relating to 

employee performance, conduct, and 

other reasons that would prompt an 

investigation. 

The House Report stated that H.R. 

4359 ‘‘creates a standard process for the 

use of administrative leave in cases of 

misconduct and poor performance, 

which will help curb the overuse of 

administrative leave within the federal 

government.’’ It explained that, under 

the bill, Federal employees could not be 

placed on administrative leave for more 

than 14 days during any year for 

misconduct or poor performance. The 

House bill’s ‘‘rules of construction’’ 

emphasized this point, saying ‘‘nothing 

in the amendment shall be construed to 

. . . limit the number of days that an 

employee may be placed on 

administrative leave, or any other paid 

non-duty status without charge to leave, 

for reasons unrelated to misconduct or 

performance.’’ 

The Senate Report on S. 2450 cited 

OPM administrative leave guidance, 

including the four acceptable factors for 

granting administrative leave, but did so 

as background and was not critical of 

this guidance or the factors. The Senate 

bill’s time cap focused on limiting an 

agency from placing an employee on 

administrative leave for a period of 

more than 5 consecutive days and 

addressed sections 301–302, but only to 

say that the authority could not be used 

to get around this consecutive-day 

limitation. It also stated that agencies 

should not circumvent the consecutiveday cap by putting an employee on 

leave, taking them off, and putting them 

back on again. Ultimately, the language 

regarding the 5-day consecutive period 

and the reference to sections 301–302 

did not make it into the final statutory 

language of the Administrative Leave 

Act. But the Senate bill’s 5-day 

(consecutive) cap was focused on 

investigation-related administrative 

leave. 

The structure of the statutory 

language in section 6329a—‘‘During any 

calendar year, an agency may place an 

employee in administrative leave for a 

period of not more than a total of 10 

work days’’—resembles the language in 

the Senate bill: ‘‘An agency may place 

an employee in administrative leave for 

a period of not more than 5 consecutive 

days.’’ As explained further, below, 

section 6329b(b)(3) references this 10- 

day period, stating ‘‘Upon the expiration 

of the 10 work day period described in 

section 6329a(b)(1) with respect to an 

employee, and if an agency determines 

that an extended investigation of the 

employee is necessary, the agency may 

place the employee in investigative 

leave for a period of not more than 30 

work days.’’ The Senate bill, S. 2450, 

regarding ‘‘investigative leave and 

notice leave’’ proposed a similar clause 

relating to investigative leave titled 

‘‘Duration of leave,’’ which states that, 

‘‘Subject to extensions of a period of 

investigative leave for which an 

employee may be eligible . . ., the 

initial placement of an employee in 

investigative leave shall be for a period 

not longer than 10 days.’’ Under S. 

2450, if additional time was necessary 

after the ‘‘initial placement,’’ the 

employee could then be placed on 

extended investigative leave. This 

parallel structure further supports the 

position that the 10-day period in 

section 6329a was meant to apply to 

administrative leave for investigative 

purposes and that, at the expiration of 

that ‘‘initial placement,’’ if necessary, 

the employee would be placed on a 

period of investigative leave. 

In sum, the best reading of the 

relevant 10-day provision, based on the 

text, structure, and legislative history, is 

that it applies only to agency-directed 

placement on administrative leave for 

investigative purposes, including prior 

to placement on investigative leave, but 

excluding placement on general 

administrative leave related to other 

allowable uses. Accordingly, we are 

revising the proposed regulations in 

§§ 630.1404 and 630.1504(a). As part of 

the revisions, we are clarifying that the 

bar in section 6329b(b)(3)(A)—under 

which investigative leave may not be 

used unless the 10-workday annual 

limit has first been met—applies only to 

the placement of an employee on an 

initial period of investigative leave. The 

bar does not apply to an extension of 

investigative leave under section 

6329b(c) (regulated in § 630.1504(f)) or a 

further extension of investigative leave 

under section 6329b(d) (regulated in 

§ 630.1504(g)). Thus, for example, if a 

particular investigation of an employee 

begins in one calendar year and is 

extended or further extended in the next 

calendar year, there is no requirement to 

use 10 workdays of administrative leave 

for investigative purposes before 

approving an extension in the next 

calendar year. 

Section 6329a(b)(1) also requires that 

the ‘‘calendar year’’ be used for this 

purpose, which in common usage is 

January 1 to December 31. OPM does 

not believe that any other period was 

intended by Congress. Because OPM has 

determined that the 10-workday annual 

limit applies only to administrative 

leave for investigative purpose, such 

administrative leave counts only against 

the 10-workday limit in the year it is 

used. For example, a six-day continuous 

period (excluding non-workdays) of 

administrative leave split evenly over 

the end of 2024 and the beginning of 

2025 would have 3 days applied to each 

year’s limit. 

Comment: Three agencies, one union, 

and one individual opposed the 

requirement in proposed § 630.1404(a) 

that administrative leave used in 

different agencies must be aggregated so 

that an employee can be placed on 

administrative leave for no more than 10 

workdays across agencies. One agency 

and the union said that the requirement 

to aggregate is not contained in the law. 

The union believed that, if 

Congressional intent was that this leave 

should be aggregated, the law would 

have stated the requirement differently. 

The union said that Congress clearly 

wrote the law to cover only an 

individual agency. One agency 

commented that the regulation imposes 

an unnecessary reporting and tracking 

requirement. Another agency said the 

requirement places an administrative 

burden on the new agency. A third 

agency noted that employees who 

reached their administrative leave limit 

because of an investigation, even though 

cleared, could not be granted 

administrative leave at the new agency. 

The individual believed that OPM’s 

interpretation places an undue 

restriction on agencies that hire an 

individual who already reached the 10- 

day cap at the individual’s former 

agency. 

OPM response: As explained above, 

OPM reads section 6329a(b)(1) as 

applying the 10-workday annual limit 

only to administrative leave in which an 

employee is placed for investigative 

purposes. Because of this determination, 

OPM agrees that the annual limit 

applies on a per-agency basis. 


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Otherwise, the result would not track 

the intent of Congress and the purpose 

of the statute, as it would mean that one 

agency may place an employee on 10 

days of leave pending an investigation; 

but, if the employee moves to another 

agency, then the second agency would 

not have the 10 days available within 

the same calendar year if needed. The 

10-workday annual limit was intended 

to allow an agency to remove an 

employee from the workplace in the 

initial stages of an investigation without 

having to invoke the additional 

procedures in section 6329b. The 

annual count should therefore reset 

when an employee moves to another 

Federal agency. OPM is revising 

§ 630.1404 to make clear that the 10- 

workday annual limit separately is 

applied to each agency that employs the 

employee during a calendar year. OPM 

is not adopting proposed paragraphs (c) 

through (e) of § 630.1404, since those 

paragraphs were based on the prior 

interpretation that the 10-workday 

annual limit applied to all types of 

administrative leave. Also, OPM is not 

adopting proposed § 630.1407, which 

would have imposed special 

recordkeeping and reporting 

requirements for employees who 

transferred or separated from an agency 

so that a gaining agency employing the 

employee in the same calendar year 

would be able to apply the 10-workday 

annual limit on administrative leave. 

With OPM’s revised reading of the 10- 

workday limit and its application to 

employees transferring agencies within 

a calendar year, this section is no longer 

applicable. 

Comment: An individual asked, in 

relation to the conversion of days to 

hours in proposed § 630.1404(b), how to 

determine the limit if part-time 

employees change their schedule in the 

middle of a period of administrative 

leave. The commenter also asked how to 

calculate the limitation if the change is 

retroactive. 

OPM response: Under this final rule, 

the 10-workday annual limit applies 

only to administrative leave for 

investigative purposes. While that 

narrows the affected population of 

employees, there remains a need to 

address the calculation of days for 

employees in that population who have 

part-time or uncommon tours of duty. 

The proposed regulations on the 10- 

workday annual limit did address such 

employees but did not address the 

scenario of an employee switching to a 

different type of work schedule during 

the calendar year. OPM is adding a new 

paragraph (b)(4) in § 630.1404 to 

provide a methodology for addressing 

this scenario. In general, the 

methodology requires converting hours 

of administrative leave for employees on 

part-time or uncommon tours of duty to 

their equivalent value for an employee 

on a full-time tour. Then the actual 

hours of administrative leave used as a 

full-time employee and the converted 

hours of administrative leave used as a 

part-time or uncommon tour employee 

can be summed together and the 

resulting sum would be applied against 

the 80-hour limit for full-time 

employees. This can be done on a 

retroactive basis, where the result could 

mean that the employee’s placement on 

administrative leave for investigative 

purposes has met or exceeded the 

limitation and any additional leave for 

investigative purposes would have to 

comply with the requirements of section 

6329b. 

OPM is also adding a new paragraph 

(j)(4) in § 630.1504 (dealing with the 30- 

workday and 70-workday limits 

associated with investigative leave) to 

address the same scenario of changing 

work schedules by incorporating the 

same methodology used in 

§ 630.1404(b)(4). 

Comment: Two unions, four agencies, 

and two individuals opposed the 

requirement in proposed § 630.1404(d) 

that agencies must first exhaust an 

employee’s 10-workday limit on 

administrative leave before placing the 

employee on investigative leave. One 

union commented that there is no 

requirement in the Administrative 

Leave Act to first exhaust the limit on 

administrative leave. Both unions and 

two agencies noted that an employee 

placed on investigative leave, even 

though cleared during the investigation, 

could no longer be granted 

administrative leave for the remainder 

of the calendar year. An individual 

similarly thought the requirement was 

unfair. Another individual said there 

was no explanation for why 

administrative leave must be exhausted 

before investigative leave is used but not 

before notice leave is used. An agency 

said that the requirement is confusing, 

will be difficult to administer, and has 

no added value. 

Additionally, a professional 

association said that the Act only 

specifies a 10-day cap on administrative 

leave with regard to investigative leave. 

The association believed the imposition 

of a 10-day cap on all administrative 

leave by the regulations would inhibit 

meetings between agency leaders and 

professional associations. Another 

agency asked that OPM clarify how it is 

not enforced leave when an agency is 

required to place an employee in 

nonpay status when the 10-workday cap 

is exhausted and the employee is not 

able to work or use leave during new 

administrative leave events. 

OPM response: Section 6329a(b)(1) of 

the Administrative Leave Act specifies 

that an agency may not ‘‘place’’ an 

employee on administrative leave for 

more than 10 workdays per calendar 

year. Section 6329b(b)(3)(A) expressly 

requires that the 10-workday period of 

administrative leave be exhausted 

before an employee can be placed in 

investigative leave. (There is no similar 

requirement regarding notice leave.) In 

OPM’s proposed regulations, we 

interpreted the 10-workday annual limit 

in section 6329a as applying to all types 

of administrative leave. Based on 

comments received and further analysis, 

we have revised our reading of this 

section, as explained elsewhere in this 

preamble. These regulations provide 

that the 10-workday annual limit 

applies only to administrative leave in 

which an employee is placed for 

purposes of an investigation of an 

employee’s conduct, performance, or 

other reasons prompting an 

investigation. We conclude that the 

purpose of the 10-workday annual limit 

is to allow an agency to commence an 

investigation expeditiously without the 

additional requirements that follow in 

section 6329b. This revised reading 

addresses various concerns raised by the 

commenters. For example, and as 

explained above, this revised reading 

avoids situations where employees 

placed on administrative leave and later 

cleared of any wrongdoing following an 

investigation are deemed nevertheless to 

have exhausted their available annual 

allotment of administrative leave. 

Comment: An agency stated that the 

requirement to place an employee in a 

leave without pay (LWOP) status may be 

appealed by the employee as a 

‘‘constructive suspension’’ if the 

employee did not request it. 

OPM response: As explained above, 

OPM has revised its interpretation of 

section 6329a to clarify that the 10- 

workday annual limit only applies to 

administrative leave for investigative 

purposes. This change should address 

the agency’s concern regarding 

scenarios that could lead to LWOP 

status, since such a status will not be 

triggered by the effects of these 

regulations. Comment: An agency asked 

if there is an exception to the 10- 

workday limitation that would allow 

employees more time to participate in 

Employee Assistance Program (EAP) 

services. 

OPM response: As explained above, 

OPM has revised its interpretation of 

section 6329a to clarify that the 10- 

workday annual limit applies only to 

administrative leave for investigative 


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purposes. An employee’s participation 

in EAP services would be at the 

agency’s discretion based on the 

Administrative Leave Act, these 

regulations, the agency’s policies, and 

any other authorities or guidance 

relating to administrative leave. 

Section 630.1406—Records and 

Reporting 

Comment: Three agencies commented 

that ample time is needed to modify 

time and attendance systems because of 

the new reporting requirements. A 

fourth agency said that WebTA will 

need to be revised to include the new 

categories of leave. One of the agencies 

said that the systems should have the 

capability for alerts when leave limits 

are exceeded. An individual asked if the 

reporting will be in hours rather than 

days. 

OPM response: OPM is working with 

agency payroll and shared service 

providers to prepare for the 

modification of current recordkeeping 

systems to accommodate the new data 

reporting requirements. As provided by 

the statute, agencies have 270 calendar 

days from the date of publication of 

these regulations to make the necessary 

changes in their recordkeeping and 

reporting systems. Agencies should 

communicate any needs for special 

functionality, such as alerts, to their 

payroll and shared service providers. 

Reporting of administrative leave will 

be by hours (or fractional increments of 

hours) used, not days of use. 

Comment: One agency recommended 

eliminating the reporting of 

administrative leave that is used for 

investigative purposes, noting the extra 

burden involved and arguing that the 

law does not require reporting this 

category of leave. 

OPM response: Section 

6329a(c)(1)(B)(ii) requires OPM to 

regulate the proper recording of 

administrative leave. There is no 

exclusion for administrative leave used 

for investigative purposes. It is 

important to identify this specific usage, 

just as it is important to track how the 

other types of leave under the Act are 

used, especially since this type of 

administrative leave counts towards the 

10-workday annual limit in section 

6329a. OPM also anticipates 

Congressional interest in data on leave 

used specifically for investigative 

purposes separate from data on 

administrative leave used for general 

purposes. Therefore, we are not 

removing the requirement for the 

reporting of administrative leave used 

for investigative purposes. 

Comment: The same agency 

recommended that OPM create two new 

timekeeping codes—one for back pay to 

preclude it from being recorded as 

administrative leave, and another for 

weather and safety leave to preclude 

individual agencies from developing 

their own specific code. 

OPM response: OPM does not set the 

timekeeping codes used by agencies and 

therefore does not create these codes. 

Payroll and shared service providers 

specify the timekeeping codes to be 

used by their client agencies. In terms 

of data reporting to OPM’s central 

payroll data system, OPM will establish 

data categories for the new types of 

leave established under the 

Administrative Leave Act. OPM 

established a payroll data category for 

weather and safety leave in 2018. OPM 

anticipates establishing a catch-all data 

category for paid time off granted under 

any authority that is not covered by any 

other specific payroll data category. 

OPM also may consider establishing 

data categories for other types of paid 

time off. 

Comment: Two unions raised 

concerns about the protection of 

employees’ rights under the Privacy Act 

(section 552a) with respect to agency 

records and reports on the use of 

administrative leave. The unions were 

concerned about the possible 

inappropriate dissemination of recorded 

details regarding the purpose of the 

leave (e.g., medical concerns) or other 

sensitive information. They indicated a 

need for additional instructions for 

agencies to protect employees from 

inadvertent or improper disclosures. 

One of the unions recommended that 

OPM provide more detailed instructions 

in § 630.1406 regarding the reporting 

requirements. 

OPM response: Any records an agency 

keeps on the use of administrative leave 

are subject to regular Privacy Act 

requirements. Section 630.1406 requires 

that usage of administrative leave under 

section 6329a and subpart N be 

recorded and reported using two 

subcategories: (1) administrative leave 

used for investigative purposes and (2) 

administrative leave for all other 

purposes. Section 630.1406 does not 

require the recording or reporting of 

additional details regarding why 

administrative leave was granted. 

However, section 1138(d)(2) of the 

Administrative Leave Act requires GAO 

provide reports to Congress every 5 

years that evaluate the use of the section 

6329a authority to grant administrative 

leave. Therefore, it is conceivable that 

GAO could seek additional information 

to the extent it is available in agency 

records. 

Section 630.1407—Separation or 

Transfer 

Comment: Four agencies commented 

on the certification and transmittal of 

administrative leave records for 

transferring employees. One agency 

stated that the new procedural 

requirements represent a significant 

administrative burden for agency 

compliance. The agency requested 

clarification on the manner of 

certification required and recommended 

that ample time be provided for 

agencies to make changes to their 

automated systems. The agency also 

recommended that OPM change the 

word ‘‘one’’ in the first sentence to 

‘‘each.’’ Another agency asked if OPM 

will update Standard Form 1150 

(Record of Leave Data) to accommodate 

the data reporting. Two other agencies 

expressed concern about the ability to 

transfer administrative leave records 

without modifications to the current 

system. 

OPM response: OPM is not adopting 

the proposed § 630.1407, which had 

required transmittal of administrative 

leave records for transferring or 

separating employees. This change was 

made because OPM is clarifying that the 

10-workday annual limit in section 

6329a resets if an employee is 

transferred to a new agency. 

Comment: An individual asked how 

the gaining agency will know the 

number of administrative leave days 

that have been used, especially for parttime employees, if the reporting is in 

hours. The individual also asked about 

situations where a part-time employee 

transfers to a full-time position with 

another agency or a full-time employee 

transfers to a part-time position and 

more hours are used under the full-time 

position than the part-time position 

allows. 

OPM response: Administrative leave, 

like other forms of leave, must 

necessarily be used and recorded in 

increments of hours (or appropriate 

fractions of an hour). Thus, OPM’s 

regulations provide that administrative 

leave must be converted to hours, 

considering whether the employee had 

a full-time, part-time, or uncommon 

tour of duty (§ 630.1404(b)). The 

proposed regulations did not address 

the scenario of an employee changing 

the type of work schedule during a 

calendar year, but OPM is adding a 

provision in the issued regulations to 

address this scenario. (See the new 

paragraph (4) in § 630.1404(b).) Because 

the regulations apply the 10-workday 

annual limit only to administrative 

leave for investigative purposes, the 

need to track hours vis-a-vis the limit 


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and to convert hours for employees with 

part-time and uncommon tours of duty 

is confined to uses of administrative 

leave for investigative purposes. We 

note, as described above, that the 10- 

workday annual limit in section 6329a 

resets if an employee is transferred to a 

new agency. 

Subpart O—Investigative Leave and 

Notice Leave 

General Comments 

Comment: An agency observed that 

the proposed regulations did not 

address how to handle active 

investigation cases that are ongoing at 

the time the subpart O regulations 

become effective. The agency requested 

guidance regarding whether employees 

in ongoing cases on the implementation 

date would (1) be placed in an initial 

period of 30 workdays of investigative 

leave or (2) be placed first on 

administrative leave until the 10- 

workday limit is exhausted and then on 

investigative leave. 

OPM response: An agency must revise 

and implement its internal policies to 

comply with subparts N and O within 

270 days after publication of these 

regulations. Afterwards, use of 

administrative leave for investigative 

purposes must comply with these 

regulations by, first, exhausting the use 

of administrative leave under subpart N, 

followed by placing the employee on 

investigative leave under subpart O. The 

agency should not count any time an 

employee spent in an administrative 

leave status, even for investigative 

purposes, prior to it revising and 

implementing its internal policies 

towards the limitations established in 

these regulations. 

Comment: An individual presented a 

scenario in which an employee who 

holds a non-critical sensitive position 

loses clearance eligibility and files an 

appeal over such loss. There are no noncritical sensitive positions in which to 

place the employee pending 

adjudication of the employee’s appeal, 

and since an indefinite suspension is 

not permissible on grounds of clearance 

suspension, the commenter asked how 

this situation would fit under the 

proposed rules. An agency commented 

that the proposed regulations do not 

adequately address situations in which 

an employee’s security clearance has 

been revoked or suspended and they are 

unable to perform work without proper 

security clearance. Employees are 

therefore placed on administrative leave 

in adherence with adjudicative 

requirements and to secure information 

pending final determination of their 

appeal of the revocation or suspension. 

The agency stated that the proposed 

regulations need to provide additional 

clarity regarding ‘‘alternative use of 

administrative leave.’’ 

OPM response: If an investigation is 

being conducted by an investigative 

entity (as those terms are defined under 

§ 630.1502), in connection with the 

suspension or revocation of a security 

clearance, or an appeal from such an 

action, and the agency completes the 

required determinations of 

§ 630.1503(b), then the agency may 

place the employee on administrative 

leave for investigative purposes until 

the 10-workday annual limit is 

exhausted, and then on investigative 

leave. The commenter’s reference to 

‘‘alternative use of administrative leave’’ 

appears to refer to what the statute calls 

investigative leave. Based on this 

comment, OPM will further amend the 

regulatory definition of the term 

investigation at § 630.1502 to make clear 

that periods of time during which an 

appeal of a security clearance revocation 

or suspension is pending should be 

considered part of an investigation 

within the meaning of this regulatory 

framework. Notice leave would not be 

applicable until such time as the 

employee receives notice of a proposed 

adverse action. To clarify that 

investigative leave may only be used 

when an investigation is being 

conducted by a person or persons 

meeting the definition of the term 

investigative entity, OPM is amending 

the definition of the term investigation 

to specifically refer to ‘‘an inquiry by an 

investigative entity.’’ Separately, under 

this hypothetical example, an agency 

may seek an indefinite suspension 

pending a final determination once it 

preliminarily determines to suspend or 

revoke an employee’s access, or 

eligibility for access, to classified 

information, in the absence of contrary 

provisions found in an internal agency 

policy or collective bargaining 

agreement. Investigative leave under 

this scenario, therefore, is not the only 

available option. 

Comment: An agency commented that 

the proposed regulations should include 

an additional category of leave that 

allows an agency to use excused 

absence from duty when a petition for 

review is pending before the Merit 

Systems Protection Board (MSPB or 

Board). Currently, if an Administrative 

Judge reverses or mitigates a removal 

action, an agency is required to place 

the employee back in a pay status even 

if the decision is appealed to the full 

Board for review. The agency concluded 

that, under the proposed regulations, an 

agency would be limited to using the 10 

workdays of general administrative 

leave under subpart N and then be 

required to return the employee to a 

duty status. The agency believes that 

this is problematic since the employee 

does not meet the criteria for 

investigative leave or notice leave, yet it 

would continue to be in the best interest 

of the government not to have this 

employee in a duty status. 

OPM response: By definition, the term 

administrative leave excludes leave that 

is authorized under any other provision 

of law (section 6329a(a)(1)(B) and 

§ 630.1402). The agency comment is 

describing a situation in which an 

Administrative Judge is providing 

interim relief by restoring a separated 

employee to employment status pending 

the outcome of a petition for review, as 

authorized under section 

7701(b)(2)(A)(ii)(II) and 7701(b)(2)(B). 

Under those statutory provisions, the 

agency may determine that the return or 

presence of the employee at the place of 

employment would be unduly 

disruptive to the work environment. If 

so, the employee is entitled to receive 

pay while in nonduty status during that 

interim period as if in duty status. Since 

another law authorizes pay for this type 

of nonduty status, it would not be 

appropriate to use administrative leave. 

Comment: An agency asked if 

investigative leave counts when 

considering an excessive absence 

charge. 

OPM response: Charges and penalties 

for attendance-related matters are 

outside the scope of this regulation. 

OPM notes, though, that in this 

scenario, the employee would be placed 

on investigative leave by action of an 

agency so we would not generally 

consider it appropriate to include 

investigative leave as a basis for an 

excessive absence charge. Additionally, 

it would not be appropriate to place an 

employee on investigative leave 

pending a potential adverse action if the 

employee is already absent from duty 

and, therefore, in a leave status. 

Comment: An agency asked if OPM 

will issue guidance or provide further 

clarification on actions that take place 

during the investigative process— 

specifically, whether it is appropriate to 

include time preparing the investigative 

report and recommendations as a part of 

the investigative process. 

OPM response: An agency may 

appropriately include time spent 

preparing an investigative report 

(including recommended actions) as 

part of the investigation period and thus 

continue investigative leave during that 

time. Similarly, as discussed in OPM’s 

response to a comment concerning the 

definition of the term notice period and 

its potential impact on settlement 


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33See HSPD–12, ¶ 12 (‘‘As promptly as possible 

. . . the heads of executive department and 

agencies shall, to the maximum extent practicable, 

require the use of identification by Federal 

employees and contractors that meets the Standard 

in gaining . . . logical access to Federally 

controlled information systems.’’). 

agreement negotiations, an agency may 

appropriately keep an employee in 

investigation status and investigative 

leave status while it is deciding whether 

to propose and/or preparing a notice of 

proposed adverse action. Based on these 

observations, OPM has amended the 

definition of the term investigation to 

include time spent preparing an 

investigative report and 

recommendation(s). 

Section 630.1502—Definitions 

Comment: An agency commented that 

the definition of the term investigation 

is overbroad and subjective. The agency 

stated that ‘‘an investigation is defined 

as alleged misconduct that could result 

in adverse action.’’ The agency further 

stated that it is unclear why the 

definition only refers to adverse actions 

and that the language is contradictory 

because there is a subsequent reference 

to disciplinary action. 

OPM response: The term investigation 

encompasses a variety of inquiries that 

could eventually result in an adverse 

action as well as internal probes 

expressly focused on whether to 

commence an adverse action. Those 

actions could include, for example, an 

internal probe to determine the 

appropriateness of continued eligibility 

for access to classified information, or 

eligibility for logical or physical access 

to agency systems and facilities, as well 

as inquiries by the agency’s Inspector 

General, the Office of Special Counsel, 

or the Attorney General—focused on 

their areas of jurisdiction—that could 

eventually produce information 

eventually leading to an action that is 

adverse to the employee. OPM has 

modified the definition of investigation 

in this final rule to remove the reference 

to disciplinary action. Finally, the 

modified language used to define the 

term investigation allows for an agency 

to fact-find and examine under a variety 

of circumstances and situations. 

Comment: An agency requested 

clarification on the meaning of certain 

terms within the definition of 

investigation: specifically, ‘‘similar 

authority,’’ ‘‘other matters that could 

lead to disciplinary action,’’ and 

‘‘disciplinary action.’’ The agency 

believes these terms are key to the scope 

of the new investigative leave 

provisions and, therefore, important to 

clarify. 

OPM response: The phrase ‘‘or similar 

authority’’ in the definition of 

investigation refers to those agencies 

that operate under a different statutory 

authority that is equivalent to 5 U.S.C. 

chapter 75. Those agencies take adverse 

actions (or their equivalents) under 

authorities similar to 5 CFR part 752. 

The phrase ‘‘other matters that could 

lead to disciplinary action’’ may include 

a variety of circumstances and is 

intentionally broad to allow for agency 

discretion in such situations. The term 

‘‘disciplinary action’’ in the proposed 

rule refers to an agency’s administrative 

action taken to address an employee’s 

misconduct. Nevertheless, OPM has 

revised the definition of ‘‘investigation’’ 

to eliminate the term ‘‘disciplinary 

action’’ and clarify that the regulation is 

intended to cover all types of matters 

that could lead to outcomes adverse to 

the employee—not only adverse actions 

taken under chapter 75 or similar 

authority. 

Comment: An agency suggested the 

words ‘‘logical’’ access be changed to 

‘‘logistical’’ access, with respect to the 

definition of the term investigation. 

OPM response: The term ‘‘logical 

access’’ comes from Homeland Security 

Presidential Directive–12 (HSPD–12), 

dated August 27, 2004, and is used with 

respect to use of information systems.33

It is the correct terminology in this 

context. 

Comment: A union referenced the 

proposed regulatory definition of the 

term investigation—specifically, the 

third prong, ‘‘other matters that could 

lead to disciplinary action.’’ It asked if, 

in situations related to the investigation 

of an Equal Employment Opportunity 

(EEO) complaint, management could 

use the third prong of the definition of 

investigation to retaliate against the 

employee for filing an EEO complaint. 

The union stated that there should be 

explicit language that would not easily 

allow management to consider an 

employee who has filed an EEO 

complaint to be ‘‘under investigation’’ 

and be placed on investigative leave. 

OPM response: The definition of 

investigation adequately describes the 

scope of the matters that may result in 

an inquiry by an investigative entity and 

the specific requested language is 

unnecessary. An employee’s EEO 

complaint may result in an EEO 

investigation; however, that employee is 

not ‘‘under investigation’’ as a result of 

filing a complaint. Filing an EEO 

complaint is a protected right under 

existing statutes and there are existing 

laws to protect an employee from 

reprisal. Accordingly, this regulation 

does not consider the mere filing of an 

EEO complaint to be an action that 

could bring the employee under 

investigation, require the use of 

investigative leave, and lead to an 

adverse action. 

Comment: An agency questioned 

whether the term investigative entity 

includes agency attorneys under the 

category ‘‘other agency representatives.’’ 

OPM response: The definition of the 

term investigative entity provides 

examples of what may be considered an 

internal investigative unit. It is not 

intended to be an exhaustive list. For 

example, agency counsel could be 

considered part of an investigative unit 

as an agency representative if they serve 

in that capacity. 

Comment: An agency commented that 

the definition of investigative entity 

should be expanded to include external 

investigative units of any agency outside 

the agency granting investigative leave 

that have a role in the investigation of 

an employee. Agencies or investigative 

units outside the initial agency 

conducting the inquiry may be 

responsible for delays, including civil, 

criminal, or judicial proceedings that 

are not controlled by, or the 

responsibility of, the investigating 

agency. The agency asserted that these 

delays would require additional 

requests and approval of investigative 

leave beyond the initial period of 30 

workdays and subsequent extensions of 

30 workdays not to exceed the 90-day 

limit. The agency recommended that 

definition of investigative entity be 

amended as follows: ‘‘(1) An external 

federal, international, state, or local 

investigative authority or internal 

investigative unit of an agency granting 

investigative leave under this subpart, 

which may be composed of one or more 

persons, such as supervisors, managers, 

human resources practitioners, 

personnel security staff, workplace 

violence prevention team members, or 

other agency representatives; . . . .’’ 

OPM response: Section 6329b(a)(6) 

defines the term investigative entity as a 

limited, enumerated list of entities 

within the federal government. Because 

the Act already defines investigative 

entity in a restrictive way, OPM has 

determined not to expand upon this 

language to include ‘‘external’’ 

authorities not countenanced under the 

statute. 

Comment: An agency commented that 

the proposed definition of the term 

notice period may inhibit the ability to 

use notice leave in circumstances where 

the parties engage in negotiation of a 

resignation/retirement agreement, after 

investigative leave but prior to the 

agency proposing an adverse action. The 

agency stated that, under the proposed 

regulation, agencies could not place an 

employee on notice leave (prior to 


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34The condition for current or recent 

participation is found in § 630.1503(c)(1)(iii), not in 

the definition in § 630.1502. 

35See § 630.1502 definition of agency in the 

context of describing who can make determinations 

and take actions. 

36See section 6329b(c) and (d) and § 630.1504(f) 

and (g). 

proposing removal) and that this may 

eliminate or adversely impact the ability 

of the parties to engage in settlement 

negotiations (e.g., regarding resignation/ 

retirement) or at least create a gap in 

coverage in some circumstances while 

an agreement is being negotiated. 

OPM response: The agency is correct 

in stating that use of notice leave is 

restricted to the notice period. The 

regulation is consistent with the Act, 

which expressly requires that the notice 

period begin on the date an employee is 

provided notice of a proposed adverse 

action (section 6329b(a)(9)). Until the 

notice of proposed adverse action is 

issued to the employee, that employee 

will remain in investigation status, and 

if the criteria are met, the employee will 

be in an investigative leave status as 

well. Thus, an agency can avoid any gap 

and provide for consecutive use of the 

two types of leave, as appropriate. 

Comment: An agency commented that 

proposed §§ 630.1502 and 630.1505(b) 

both discuss the limits on the length of 

notice leave, but there is ambiguity 

because the term ‘‘duration’’ does not 

appear within the definition of notice 

period in § 630.1502. The agency 

suggested amending the definition of 

notice period so that it reads, ‘‘Notice 

period means a period, the duration of 

which begins on the date . . .’’ 

OPM response: OPM does not view 

these sections as being ambiguous. 

Section 630.1502 establishes that the 

notice period begins on the date on 

which an employee is provided notice, 

as required by law, of a proposed 

adverse action against the employee and 

ends on the effective date of the adverse 

action or on the date on which the 

agency notifies the employee that no 

adverse action will be taken. This 

period of time is the duration of the 

notice period. Section 630.1505(b) 

establishes that the placement of an 

employee on notice leave shall be for a 

period not longer than the duration of 

the notice period. 

Comment: A union recommended that 

the definition of participating in a 

telework program in proposed 

§ 630.1502 be expanded to allow 

employees who are eligible to 

participate in a telework program, but 

not currently participating in such a 

program, to elect to voluntarily telework 

in lieu of being placed on investigative 

leave, subject to agency approval. The 

union stated this would be consistent 

with the statutory goals of limiting the 

amount of time that an employee who 

is under investigation is in a leave status 

and not performing work for the agency. 

OPM response: OPM’s regulations in 

§ 630.1503(c) set how an agency can 

‘‘require’’ telework for employees who 

are currently (or very recently) 

‘‘participating in a telework 

program.’’ 34 OPM has determined that it 

would not be appropriate to require 

telework by employees who are not 

currently (or very recently) participating 

in a telework program since they would 

lack a voluntarily established telework 

arrangement. There is, therefore, no 

need to amend the definition of 

participating in a telework program to 

allow voluntary telework, since the term 

is used in subpart O only in connection 

with telework ‘‘required’’ by the agency. 

Voluntary telework is an option an 

agency may consider. If an employee 

who has not been participating in a 

telework program is willing to 

voluntarily begin such participation to 

avoid being placed on investigative 

leave, and if the agency concludes that 

permitting telework in these 

circumstances would not pose a threat 

to the employee or others, result in the 

destruction of evidence relevant to an 

investigation, result in loss of or damage 

to Government property, or otherwise 

jeopardize legitimate Government 

interests, there is no regulatory bar and 

no need for a special authority. It is a 

way of keeping the employee in duty 

status through telework duties, which is 

consistent with § 630.1503(b)(2)(i). Once 

an employee begins to voluntarily 

participate in a telework program, the 

employee would be a current 

participant and thereafter could be 

‘‘required’’ to telework in lieu of 

investigative leave. 

§ 630.1503(a), (b), and (e)—Authority 

and Requirements for Investigative 

Leave and Notice Leave; Baseline 

Factors 

Comment: An agency stated that part 

of the intent of notice/investigative 

leave is to protect the public from harm 

and that OPM needs to be more specific 

as to whether this refers to co-workers 

or any person in the public located 

anywhere, as this is a condition agency 

management must consider in making a 

leave determination. 

OPM response: OPM believes that the 

language of the regulation is sufficiently 

clear. Section 630.1503(e) states that, in 

making a determination regarding the 

criteria listed under paragraph (b)(1) of 

that section, an agency must consider, 

in part, whether the employee will pose 

an unacceptable risk to the life, safety, 

or health of employees, contractors, 

vendors or visitors to a Federal facility. 

Comment: An agency asked who is an 

‘‘authorized agency official,’’ for 

determining investigative leave and 

notice leave. 

OPM response: For notice leave and 

the initial placement on investigative 

leave, the agency head has discretion to 

determine who constitutes an 

authorized agency official.35 For 

extensions of investigative leave, 

approval levels are set in statute and the 

regulations.36

Comment: An agency commented it is 

unclear whether second-level approval 

is required for investigative leave and 

notice leave. 

OPM response: Section 

630.1403(a)(5)(ii) in this final rule 

requires that general administrative 

leave under subpart N be ‘‘reviewed and 

approved by an official of the agency 

who is (or is acting) at a higher level 

than the official making the 

determination’’ if the specific type of 

use and amount of leave for that use has 

not been authorized under established 

agency policy, but this requirement is 

not applicable to investigative leave and 

notice leave under subpart O. 

Additionally, while incremental 

extensions of investigative leave under 

§ 630.1504(f)(1) are permitted only if 

approved by the Chief Human Capital 

Officer (CHCO) of an agency, or the 

designee of the CHCO (or, in the case of 

an employee of an Office of the 

Inspector General, the Inspector General 

or designee), there is no such 

requirement for notice leave because 

extensions are not applicable to notice 

leave. Thus, agencies have the 

discretion to establish the appropriate 

authority level for granting notice leave 

within their organizations, without 

regard to the regulatory requirements 

imposed for general administrative 

leave and extensions of investigative 

leave. 

Comment: Two agencies were 

concerned that agencies would be 

required to take an employee off 

investigative leave during the period 

between completion of an investigation 

and issuance of a notice of proposed 

adverse action. One agency stated that 

requiring an employee to come back to 

work during this period would defeat 

the intent of the law and would run 

counter to the determination that placed 

the employee on investigative leave in 

the first place. The other agency noted 

that it is only after an investigation has 

been completed that an adverse action 

is usually considered and, depending on 

the complexity of the case, it takes time 


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37See also section 6329b(d)(1) and (3). 

38See King v. Jerome, 42 F.3d 1371 (Fed. Cir. 

1994). 

to prepare a proposed adverse action. 

The same agency pointed to the 

proposed regulation in § 630.1504(h), 

which stated: ‘‘An agency may not 

further extend a period of investigative 

leave on or after the date that is 30 

calendar days after the completion of 

the investigation of the employee by an 

investigative entity,’’ suggesting there 

could be a gap in leave. 

OPM response: It is true that notice 

leave may not commence until the 

employee has received a notice of 

proposed adverse action. The law does 

not establish any particular cut-off event 

for investigative leave; however, and, so 

long as the agency is still engaged in the 

process of considering the evidence, 

framing potential charges, and assessing 

whether any additional investigation is 

required, the agency may reasonably 

regard the investigation as not yet 

concluded. As described above, an 

agency can avoid any gap in leave by 

providing for consecutive use of the two 

types of leave, as appropriate. An 

agency may keep an employee in 

investigation status and covered by 

investigative leave until it issues a 

notice of proposed adverse action. The 

regulation § 630.1504(h) referenced in 

one of the agencies’ comments does not 

prevent an agency from considering 

necessary work on a planned notice of 

adverse action to be part of the period 

of investigation. In any event, 

§ 630.1504(h) applies only to ‘‘further’’ 

extensions of investigative leave under 

§ 630.1504(g).37 OPM is clarifying this 

in the issued regulations. 

Comment: An agency referenced the 

preamble of the proposed regulations 

related to § 630.1503(a)(2)(i), which 

stated, ‘‘Agencies should be mindful, 

however, of any internal procedures 

related to the preparation and approval 

of adverse action before it is issued.’’ 

The agency commented that agencies 

should also be mindful of collective 

bargaining provisions since compliance 

with such provisions is required under 

chapter 71. 

OPM response: OPM agrees that 

agencies should also be mindful of 

relevant, enforceable collective 

bargaining provisions but notes that, 

while some procedures and 

arrangements related to adverse actions 

are negotiable, the right to discipline is 

reserved to agency management by 5 

U.S.C. 7106. 

Comment: An agency indicated that 

proposed § 630.1503(b) requires a 

‘‘determination’’ to initially place an 

employee on investigative leave or 

notice leave but does not clarify 

whether this determination must be 

made in writing or identify who makes 

the determination. 

OPM response: The proposed 

regulations did not directly address 

these points. The initial determination 

to place an employee on investigative 

leave or notice leave will be made by 

the appropriate agency official at the 

agency’s discretion and after the agency 

has made the required determinations. 

However, any extensions of 

investigative leave must be approved by 

certain designated officials based on a 

written determination. Based on the 

comment, OPM is revising § 630.1503(b) 

to explicitly require a written 

determination to support the initial 

decision to place an employee on 

investigative leave or notice leave. This 

is consistent with the recordkeeping 

requirements in § 630.1506, which 

requires that an agency maintain an 

accurate record of the placement of an 

employee on investigative leave or 

notice leave. 

Comment: An agency stated that the 

word ‘‘threat’’ in proposed 

§ 630.1503(b)(1)(i) either needs to be 

defined or changed to ‘‘a disruption to 

the workplace.’’ Without this definition, 

the agency contends that its managers 

will revert to the analysis in Metz v. 

Department of the Treasury, 780 F.2d 

1001 (Fed. Cir. 1986) (directing MSPB 

adjudicators to consider the listener’s 

reactions, the listener’s apprehension of 

harm, the speaker’s intent, any 

conditional nature of the statements, 

and the attendant circumstances in 

sustaining adverse actions based upon 

threats). The agency asserted that not all 

workplace disruptions rise to the level 

of threat or imminent threat and 

believes that the language in the 

proposed rule would limit 

management’s flexibility in removing 

employees from the workplace pending 

completion of an inquiry or 

investigation. 

OPM response: We understand the 

concern, although Metz dealt with oral 

or written threats as the bases for the 

underlying adverse action, and the 

court’s analysis was limited to that 

specific scenario. The Act, in contrast, 

uses the word ‘‘threat’’ to mean a 

broader variety of risks the employee 

could pose toward agency people, 

information, facilities, and information 

systems if the employee were permitted 

to continue to have access to the 

workplace or agency systems during the 

pendency of the employee’s 

investigation. Thus, the word is used 

differently than in Metz. 

Consideration of this comment, 

however, has caused us to make 

revisions. The statute, especially the 

fourth category of potential harms, 

authorizes an agency to determine 

whether the employee’s presence is 

consistent with a legitimate Government 

interest. This provision is similar to the 

undue-disruption determination 

regarding interim relief in section 

7701(b)(2)(A), which is unreviewable.38

Accordingly, we have added language to 

the proposed regulation at § 630.1503(a) 

to make clear that all determinations 

made under section 6329b are within 

the authority of the agency. 

Comment: A commenter stated that 

proposed § 630.1503(b)(1)(ii) is too 

narrow and the regulation should be 

broadened to address obstruction, rather 

than just destruction of evidence, 

because destroying evidence is only one 

way that an employee could obstruct, or 

attempt to obstruct, an investigation. 

OPM response: The language in 

§ 630.1503(b)(1)(ii) is the exact language 

used in the Act. The language does not 

preclude obstruction as part of the 

determination, especially since the 

fourth category under the statutory 

requirements is broad, asking whether 

the continued presence of the employee 

in the workplace during the 

investigation or while in the notice 

period may ‘‘otherwise jeopardize 

legitimate Government interests.’’ 

Accordingly, the requested revision is 

unnecessary. 

Comment: An agency referenced 

proposed § 630.1503(b)(2)(i) which sets 

the option, in lieu of investigative or 

notice leave, of keeping an employee in 

a duty status by assigning the employee 

to duties in which the employee does 

not pose a threat. The agency noted that, 

while not stated in the proposed 

regulation, the preamble of the proposed 

rule stated, ‘‘The duties should be at the 

same grade level as the employee’s 

current position.’’ The agency stated 

that they may not have duties available 

at the same grade level as the 

employee’s current position, but they 

may have duties available at a lowergrade level and it would be preferable 

to have the employee perform duties 

that further the agency’s mission, rather 

than placing the employee on 

administrative or investigative leave. 

OPM response: OPM agrees that, 

while employees should generally be 

assigned duties at the same grade level 

as the employee’s current position, it 

may not always be possible. Such 

inability does not prevent the agency 

from assigning the employee to other 

duties under § 630.1503(b)(2)(i) 

particularly when such duties are 

temporary in nature as contemplated in 

this scenario. 


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Comment: Two unions referenced 

proposed § 630.1503(b)(2)(ii), which is 

related to the voluntary use of other 

forms of paid or unpaid time off in lieu 

of investigative leave or notice leave. 

The unions stated that this provision 

should be clarified so that agencies do 

not overtly or implicitly encourage 

employees to use their other forms of 

leave. The unions further stated that 

OPM should require agencies to notify 

employees that the use of other forms of 

leave in lieu of investigative leave is 

strictly voluntary and that the employee 

has the right to use paid investigative 

leave instead. 

OPM response: Consistent with 

section 6329b(b)(2)(B)(ii), 

§ 630.1503(b)(2)(ii) sets the option of 

‘‘allowing’’ an employee to voluntarily 

take leave (paid or unpaid) or other 

forms of paid time off, as appropriate 

under the rules governing each category 

of leave or paid time off. An employee 

who is under investigation or in a notice 

period may elect to take annual leave, 

sick leave (as appropriate), restored 

annual leave, or any leave earned under 

subchapter I of chapter 63, U.S. Code. 

The employee may also elect to use 

other paid time off to remain in a pay 

status, such as compensatory time off 

earned through overtime work, 

compensatory time off for travel, and 

credit hours under a flexible work 

schedule, as appropriate. An employee 

may elect to take leave or other paid 

time off for which the employee is 

eligible on an intermittent basis, as 

appropriate, during a period of 

investigative leave or notice leave. As 

stated in the preamble of the proposed 

regulations, ‘‘Agencies may not require 

employees to take accrued leave or other 

time off as a substitute for investigative 

leave or notice leave.’’ Section 

630.1503(d)(1) provides that an 

employee on investigative leave or 

notice leave must be prepared to report 

to work at any time during the 

employee’s regularly scheduled tour of 

duty or must obtain approval of the 

appropriate leave to eliminate the 

possible obligation to report to work if 

the employee will be unable to report 

promptly if called. Because of this 

requirement, it may be advantageous for 

an employee to voluntarily request to 

use leave or time off in place of 

investigative leave or notice leave if 

they may be unavailable to report to 

work. Because § 630.1503(b)(2)(ii) 

makes clear that use of other leave or 

time off is voluntary, OPM is making no 

change to the provision. 

Comment: An individual stated that 

the proposed § 630.1503(b)(2)(ii) and 

(b)(3) are unclear and at odds with 

OPM’s explanation of them in the 

preamble to the proposed rule. The 

individual asserted that the proposed 

regulations specify that, to place an 

employee in investigative leave or 

notice leave, agencies must consider 

allowing employees to voluntarily take 

leave and determine that this option 

would ‘‘not be appropriate,’’ but that the 

regulation contains no explanation of 

circumstances when it would not be 

appropriate to allow an employee to 

voluntarily take leave during an 

investigation or notice period. The 

individual argued that this could lead to 

inconsistent implementation and 

confusion among Federal agencies. The 

individual further stated that, if 

appropriateness is measured solely by 

the rules governing each category of 

leave or paid time off, an agency could 

potentially never determine to place an 

employee in investigative leave or 

notice leave as long as the employee had 

a positive balance of leave or other paid 

time off that could be used during an 

investigation or notice period. The 

individual believes OPM should clarify 

these provisions in the regulations and 

its explanation to give agencies clearer 

guidance regarding the circumstances 

under which it would not be 

appropriate to allow an employee to 

voluntarily take leave in lieu of 

investigative leave or notice leave. 

OPM response: OPM disagrees and 

considers the regulations to be clear as 

written. Section 630.1503(b)(2)(ii) states 

that an agency can ‘‘allow’’ the 

employee to ‘‘voluntarily’’ take leave 

(paid or unpaid) or paid time off, as 

appropriate under the rules governing 

each category of leave or paid time off. 

The language ‘‘as appropriate under the 

rules governing each category of leave or 

paid time off’’ refers to the permissible 

uses of the various types of leave. For 

example, under § 630.1503(b)(2)(ii), it 

would not be appropriate to allow an 

employee to voluntarily take sick leave 

to avoid reporting for duty, when 

directed, during a period of 

investigative leave or notice leave, 

unless the leave was otherwise a 

permissible use of sick leave. 

Accordingly, when the agency makes its 

determination under § 630.1503(b)(3) as 

to whether any of the options under 

§ 630.1503(b)(2) are appropriate, the 

agency will find that § 630.1503(b)(2)(ii) 

is not an available option if the agency 

denies the employee’s leave request. 

Conversely, if an employee requests 

leave that is appropriate under the rules 

governing that category of leave, then 

the agency will determine, under 

§ 630.1503(b)(3), that there is an 

appropriate option. Section 

630.1503(d)(1) requires that an 

employee on investigative leave or 

notice leave be prepared to report to 

work at any time during the employee’s 

regularly scheduled tour of duty or 

obtain approval of another form of 

leave, as appropriate, if the employee 

will be unable to report promptly if 

called. 

Comment: With respect to proposed 

§ 630.1503(b)(2)(ii), two agencies 

asserted that it is unrealistic to assume 

an employee would elect to take other 

forms of paid leave in lieu of 

administrative leave. However, if an 

employee is on administrative leave, it 

would be reasonable to require the 

employee to substitute more appropriate 

leave types if the employee becomes ill, 

wishes to invoke annual leave to take a 

trip, etc. The agencies recommended a 

modification to the provision such that, 

while on administrative leave, an 

employee is required to substitute with 

other paid leave where appropriate. The 

agencies believed this change would 

allow agencies to record an employee’s 

time more accurately. 

OPM response: The agencies’ concern 

is already addressed within the 

regulation. Section 630.1503(d) allows 

the employee to request annual or sick 

leave (as appropriate) while on 

investigative or notice leave because the 

employee must be prepared to report to 

work at any time during the employee’s 

regularly scheduled tour of duty. If the 

employee anticipates a possible 

inability to report promptly, the 

employee must obtain approval of 

another form of leave in advance of the 

date or dates that the employee will be 

unavailable. 

Comment: Two agencies referenced 

use-or-lose leave and its relationship 

with proposed § 630.1503(b)(2)(ii). The 

agencies noted that this section does not 

address a situation when an employee is 

on investigative leave or notice leave 

and has (or will have) an annual leave 

balance in excess of the maximum 

carryover of 240 hours (for non SESemployees). The agencies asked whether 

an agency can require employees who 

are in a ‘‘use-or-lose’’ status to use their 

annual leave, or if restored leave should 

be granted. 

OPM response: The procedures and 

requirements for restoration of annual 

leave are not impacted by this rule. 

Being placed on investigative leave or 

notice leave does not relieve an 

employee of the responsibility to 

schedule annual leave that would 

otherwise be forfeited. If the employee 

fails to request and schedule the use of 

annual leave that would otherwise be 

forfeited, the agency cannot restore it to 

the employee. If the agency denies such 


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39 82 FR 32268. 40See 5 U.S.C. 6502(c). 

a timely request, the agency is required 

to restore the annual leave. 

Comment: Two agencies asserted that 

the OPM proposed rule sets an almost 

unattainable standard by requiring that 

an agency establish that an employee 

‘‘will’’ (as opposed to ‘‘may 

reasonably’’) pose a risk of harm to 

others and/or Government property to 

justify placing the employee on 

investigative leave or notice leave. The 

agencies stated that ‘‘reasonable’’ 

concern should be sufficient to invoke 

investigative leave or notice leave. One 

agency objected to language in the 

proposed regulations stating that ‘‘The 

agency may not arbitrarily place 

individuals on investigative leave or 

notice leave based upon fear of a future 

risk without engaging in an 

individualized assessment that 

establishes that there is a significant risk 

of substantial harm that cannot be 

eliminated or reduced by other means,’’ 

and argued that this assessment and 

high standard would create a less safe 

working environment for civil servants, 

which was not the intent of Congress. 

The agency suggested that the factors do 

not consider situations where an 

employee’s presence in the workplace is 

not a threat to safety but would be 

disruptive and the agency should not 

have to reach the threshold of threats of 

harm for an employee to be removed 

from the workplace. The agency 

believed that requiring an agency to 

‘‘establish that there is a significant risk 

of substantial harm’’ hampers the ability 

of that agency to continue everyday 

operations uninterrupted. 

OPM response: OPM agrees that 

requiring a showing of a ‘‘significant 

risk’’ would set an inappropriately high 

standard. Neither the Act nor the 

regulatory text establishes such a 

standard though. Under § 630.1503(b), 

an agency may place an employee on 

investigative leave or notice leave when 

it determines that the continued 

presence of the employee ‘‘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. The 

baseline factors set out at § 630.1503(e) 

guide the § 630.1503(b) determination— 

each factor must be considered when 

determining whether an employee 

should be placed on investigative leave 

or notice leave. As noted in the 

proposed regulations, ‘‘agencies should 

exercise independent, reasonable 

judgment in evaluating each particular 

situation,’’ 39 including the discretion 

and responsibility to assess and 

determine what constitutes ‘‘other 

impacts of the employee’s continued 

presence in the workplace detrimental 

to legitimate Government interests’’ 

under § 630.1503(e)(3). An agency has 

discretion to determine that an 

individual poses an unacceptable risk to 

the life, safety, health, or privacy 

interests of others and/or Government 

property, which is sufficient to invoke 

investigative leave or notice leave. We 

have revised the regulation accordingly. 

Comment: An agency noted that the 

baseline factors include an evaluation of 

the duration of the risk; the nature and 

severity of the potential harm; how 

likely it is that the potential harm will 

occur; and how imminent the potential 

harm is. The agency believes that these 

are difficult factors to evaluate and 

urges OPM to provide examples or 

further explanation regarding these 

factors. The commenter also requested 

OPM explain how agencies’ policies 

regarding workplace violence would 

impact any individual assessment. 

OPM response: The baseline factors in 

§ 630.1503(e) are to be used as a starting 

point when determining whether an 

employee should be placed on 

investigative leave or notice leave. OPM 

expects agencies to exercise 

independent, reasonable judgment in 

evaluating each particular situation. The 

baseline factors, while a required 

consideration, are meant to be applied 

to the specifics of each individual 

situation. Agencies should review their 

workplace violence policies to 

determine how they interact with the 

requirements of the new regulations. 

Comment: A union referenced the 

baseline factors in proposed 

§ 630.1503(e), specifically (e)(1), ‘‘the 

nature and severity of the employee’s 

exhibited or alleged behavior’’ and 

asked if this would apply to employee 

posts on social media. 

OPM response: As previously noted, 

the baseline factors in § 630.1503(e) are 

a starting point in determining whether 

an employee should be placed on 

investigative leave or notice leave. Each 

baseline factor must be considered. 

OPM expects agencies to exercise 

independent, reasonable judgment in 

evaluating each situation, and agencies 

should consult with their human 

resources office or their general 

counsel’s office, or both, to the extent 

appropriate, before placing an employee 

on investigative leave or notice leave. 

An employee’s social media activity, 

either by itself or in conjunction with 

other information, may prompt an 

evaluation under the baseline factors. 

Comment: An individual stated that 

the baseline factor at proposed 

§ 630.1503(e)(3)(ii), regarding risk to the 

Government’s physical assets or 

information systems, should be 

amended to include intangible assets, 

such as rights in intellectual property. 

OPM response: The examples of 

legitimate Government interests in 

§ 630.1503(e)(3) are not a 

comprehensive list. An agency may 

consider other legitimate Government 

interests, including any intellectual 

property rights the Government might 

possess as well. 

Comment: An agency stated that there 

might be due process concerns when an 

employee’s access to government 

computers and/or systems is terminated 

or suspended. The agency questioned 

how the agency would allow the 

employee access to electronic data for 

the purposes of ‘‘defending him/herself’’ 

if an action were taken against the 

employee. 

OPM response: This comment is 

outside the scope of this regulation. The 

procedural requirements for taking an 

adverse or performance-based action are 

not impacted by this rule. 

Section 630.1503(c)—Required 

Telework 

Comment: An agency asserted that 

proposed § 630.1503(c) establishes that 

telework is an alternative to 

investigative leave but omits any 

reference to notice leave. The agency 

sought clarification regarding whether 

telework is an option during notice 

leave. 

OPM response: Section 630.1503(c) 

pertains to an agency’s authority to 

‘‘require’’ an employee in an 

investigation status to telework. The 

Administrative Leave Act added section 

6502(c) in the telework law.40 The 

section expressly authorizes agencies to 

require an employee to telework in lieu 

of investigative leave. Section 6329b 

includes agency requirements for 

reporting on employees required to 

telework under section 6502(c). But 

while section 6502(c) deals with 

required telework as an alternative to 

investigative leave, there is no similar 

provision providing for required 

telework in lieu of notice leave. 

However, there is no prohibition on an 

employee teleworking, consistent with 

an agency’s internal policy, in lieu of 

notice leave, if the agency determines 

that is appropriate. OPM does not 

believe further clarification is necessary 

in the regulatory text. 

Comment: Two agencies observed that 

section 6502(c) seems to require an 

agency to place an employee on 

investigative leave before the agency 


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41See § 630.1503(c)(1). 

42See the language ‘‘the agency determines’’ in 

section 6502(c)(1) and (3). 43See § 630.1503(c)(1)(iv). 

may require telework. One agency 

contended that an employee on 

investigative leave cannot be 

teleworking at the same time, which 

section 6502(c) seems to suggest is 

possible. The other agency contended 

that OPM regulations were not 

consistent with section 6502(c)—that 

employees should be placed on 

investigative leave before an agency can 

require telework. In addition, a union 

was concerned that an employee 

performing required telework in lieu of 

investigative leave would be considered, 

inaccurately, to be on investigative 

leave. The union recommended adding 

an express statement in the regulations 

that placement in a telework status does 

not constitute investigative leave status. 

OPM response: OPM agrees with one 

agency’s conclusion that, by definition, 

an employee in a required telework 

status is in a work status, not an 

investigative leave status. Since ‘‘work’’ 

does not constitute ‘‘leave,’’ OPM is not 

adding a statement to that effect, as 

recommended by the union, because it 

is unnecessary. Also, in this rulemaking, 

OPM interprets section 6502(c) to mean 

that telework may be required only 

when the employee would satisfy the 

legal conditions for investigative leave 

under section 6329b and would 

otherwise be placed on such leave.41 If 

an employee should be placed on 

investigative leave following the 

required 10-workday period in section 

6329a, it would not make sense to 

require a de minimis period of 

investigative leave before required 

telework can begin. The key point is 

that an agency may not require telework 

under section 6502(c) unless the 

employee would be placed on 

investigative leave but for the telework. 

Comment: An agency and an 

individual questioned OPM’s authority 

to direct an employee to telework in lieu 

of investigative leave, since telework 

has always been voluntary. The agency 

raised concerns that an employee’s 

home may not always be available for 

business purposes—e.g., a spouse needs 

to use the home office or children are 

at home on certain days. 

OPM response: As described above, 

the Administrative Leave Act added 

section 6502(c) in the telework law in 

2016. It expressly authorizes agencies to 

require an employee to telework in lieu 

of investigative leave. Consistent with 

section 6502(c), § 630.1503(c)(2) 

provides that any voluntary telework 

agreement must be superseded as 

necessary to comply with an agency’s 

action to require telework. OPM is 

exercising its regulatory authority in a 

manner consistent with the authority 

granted pursuant to the Act. 

Agency telework policies will govern 

whether telework is appropriate in 

specific circumstances. OPM notes that 

agencies can change their telework 

policies and make special exceptions to 

policies for employees who are required 

to telework under section 6502(c). 

Comment: An agency recommended 

that OPM clarify in the regulations that 

agencies have discretion to require 

telework in lieu of investigative leave 

and to specify the duration and location 

of that telework assignment (e.g., home 

versus agency telework center). The 

agency stated this clarification would 

stem potential litigation under 

collective bargaining agreements and 

provisions relating to voluntary 

telework under the regular telework 

law. The agency noted a parallel 

example of an OPM regulation in 

§ 531.605(d)(4) giving agencies 

discretion to determine an employee’s 

official worksite. 

OPM response: OPM agrees with the 

agency recommendation. Section 

6502(c) authorizes agencies to ‘‘require’’ 

telework based on agency 

determinations.42 The authority to 

require telework necessarily includes an 

obligation to specify the duration and 

location of the telework assignment. 

Accordingly, OPM is revising the 

regulation at § 630.1503(c) to clarify that 

the agency determination to require 

telework (including all related 

conditions and requirements), like the 

other determinations under these 

regulations, are to be made at the 

agency’s discretion. Furthermore, since 

required telework is in lieu of 

placement in an investigative leave 

status, OPM is revising these regulations 

to require agencies to provide the 

employee with a written explanation 

regarding the required telework, similar 

to the explanation provided to 

employees when placed on investigative 

leave in paragraph (c) of section 

630.1504. 

Comment: An individual commented 

that proposed § 630.1503(c)(2) is 

unnecessarily duplicative of 

§ 630.1503(c)(1)(ii). 

OPM response: Paragraph (c)(1)(ii) of 

§ 630.1503 is a brief restatement of the 

statutory requirements of section 

6502(c)(2), whereas paragraph (c)(2) 

explains the meaning of ‘‘eligible to 

telework’’ as used in paragraph (c)(1)(ii). 

To avoid redundancy, OPM has 

shortened paragraph (c)(1)(ii) to state 

only the statutory requirement that an 

employee be eligible to telework with 

paragraph (c)(2) providing additional 

details regarding eligibility and agency 

implementation. 

Comment: An agency noted that most 

agency telework policies terminate or 

suspend participation for employees 

with either a conduct or performance 

issue, which the agency viewed as 

conflicting with the proposed regulation 

providing for telework as a possible 

alternative to investigative leave. The 

agency contended that OPM would need 

to carve out an exception to such agency 

telework policies. Two other agencies 

expressed concern that telework would 

be seen as a reward for misconduct and 

would likely produce no benefit for the 

agency. The two agencies acknowledged 

that agencies would not be required to 

use the telework option but were 

concerned that there would be pressure 

to allow telework in these instances. 

The two agencies stated that telework 

should not be allowed unless employees 

have a fully successful performance 

rating, a good conduct record, and are 

not a potential threat to agency facilities 

or personnel. An individual commenter 

raised similar concerns about allowing 

employees with performance, conduct, 

or behavioral problems to telework, 

contrary to normal agency policies. 

OPM response: While the 

Administrative Leave Act requires 

agencies to consider certain options 

before approving use of investigative 

leave (see section 6329b(b)(2)), the Act 

does not require agencies to consider 

the telework option (see section 

6502(c)). An agency has discretion in 

deciding whether it will require 

telework by an employee who would 

otherwise be placed in investigative 

leave, subject to the conditions set forth 

in law and regulation. As stated in 

§ 630.1503(c)(1)(ii), telework may be 

required only if the employee is eligible 

to telework under the conditions set 

forth in section 6502(a) and (b)(4)—e.g., 

an employee is not eligible if the 

employee has been officially disciplined 

for certain reasons, such as for viewing 

pornography on a Government 

computer. As further stated in 

§ 630.1503(c)(1)(i), before an agency 

requires telework, it must determine 

that it would not pose certain risks to 

Government personnel, property, or 

other interests. After applying the 

above-described conditions, the agency 

still has the discretion to not require 

telework if it determines it would be 

inappropriate.43 Given the degree of 

agency discretion, OPM does not believe 

the regulations would conflict with 

agencies’ existing telework policies. 

OPM notes that, although the use of 


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44See following comment and response for an 

explanation of the qualification that telework 

participation be current or recent. 45 82 FR at 32270. 

46See § 630.1503(c)(1)(iii). 

47See § 630.1503(c)(1)(ii). 

telework is not subject to the approval 

and reporting accountability measures 

in place for use of investigative leave, 

agencies should continue to manage 

telework and hold employees 

accountable for productive work based 

on their experience in administering 

telework programs. 

Comment: Two agencies questioned 

whether agencies are responsible for 

providing equipment necessary for an 

employee to telework when required in 

lieu of investigative leave. One agency 

noted that the preamble to the proposed 

regulations stated that an agency must 

provide employees who are required to 

telework in lieu of investigative leave 

with appropriate equipment. The other 

agency asked about funding the 

employee’s internet capability at home. 

Both agencies raised the possibility of 

legal issues associated with requiring 

employees to telework at home when 

they must consume personal resources 

to conduct Government business. One 

agency also asked if OPM would be 

issuing updated telework guidance in 

conjunction with this final rule. 

OPM response: Congress provided 

specific legal authority in section 

6502(c) for agencies to require telework 

in lieu of investigative leave. Since 

telework will be required only for 

employees who are current (or recent) 44

telework program participants, it is 

anticipated that any mandatory telework 

would be consistent with and would 

apply the terms of the employee’s 

regular telework arrangement and that, 

as a condition of teleworking, 

employees would have already satisfied 

all eligibility criteria, including 

procuring necessary equipment. Any 

issues related to agency obligations to 

spend funds to support telework in an 

employee’s home are outside the scope 

of these regulations. OPM will consider 

whether updating its existing telework 

guidance and leave guidance is 

necessary. 

Comment: An agency objected to 

proposed § 630.1503(c)(1)(iii), which 

provides that telework may be required 

only for an employee who has been 

participating in a telework program 

during some portion of the 30-day 

period immediately preceding the 

commencement of investigative leave 

(or the commencement of required 

telework in lieu of such leave). The 

agency stated that management should 

be given greater flexibility to require 

telework by changing the regulation to 

either (1) have no time requirement (i.e., 

require past participation at any time) or 

(2) extend the time requirement from 30 

days to 180 days. The agency 

maintained that the law does not require 

that an employee must have been 

participating in a telework program 

prior to being placed in one in lieu of 

investigative leave. 

OPM response: As OPM stated in the 

preamble for the proposed regulations,45

this condition limiting telework in lieu 

of investigative leave only for 

employees who are current (or recent) 

telework program participants was 

based on OPM’s understanding of 

Congressional intent. Section 6502(c) 

references the eligibility conditions in 

section 6502(b), which applies to 

‘‘participation’’ in a telework program. 

This language indicates that Congress 

intended to allow agencies to require 

telework of employees who were 

already telework program participants. 

The 30-day time period was adopted, in 

part, as a protection against an 

employee cancelling participation in a 

telework program shortly before the 

agency would require telework. OPM 

considers this to be a sufficient period 

of time to accomplish that objective. 

Comment: A union objected to the 

proposed § 630.1503(c)(3), which states 

an agency may place an employee in 

absent without leave status if an 

employee who is required to telework 

under § 630.1503(c)(1) is absent from 

telework duty without approval (i.e., 

AWOL). An agency also raised concerns 

about the possibility of placing an 

employee on AWOL status. The union 

was concerned that an agency might 

incorrectly determine that an employee 

on telework duty was absent from work 

after a brief absence from the telework 

site or failure to respond immediately to 

an inquiry from the employer. For 

example, a supervisor might call the 

employee on telework duty when the 

employee is teleworking from outside 

the home or unable to immediately take 

the call and make the inaccurate 

assumption that the employee is absent 

from telework duty. The union added 

this risk is compounded by an 

employee’s flexibility in determining a 

telework location. 

OPM response: This regulation states 

that an agency ‘‘may’’ place an 

employee in AWOL status if the 

employee is absent from telework duty 

without approval, consistent with 

agency policies. Before placing an 

employee in AWOL status, the 

supervisor must follow normal agency 

policies to determine if the employee is 

absent without approval. The regulation 

does not change these protocols. 

Agencies are also responsible for 

ensuring that telework agreements 

clearly identify expectations, including 

what constitutes an approved telework 

location. OPM is therefore not changing 

this provision. 

Comment: An agency understood that 

some employees not currently eligible 

for telework could be required to 

telework in lieu of investigative leave. 

The agency asked if there would be 

legislative updates to the telework law 

or in OPM guidance on teleworkers. 

OPM response: The regulations 

provide that telework may be required 

only for an employee who is 

‘‘participating in a telework program,’’ 

as defined in § 630.1502, during some 

portion of the 30-day period 

immediately preceding the 

commencement of required telework.46

Also, an employee may be required to 

telework only if he/she is eligible to 

telework under section 6502(a) and 

(b)(4).47 The employee must therefore be 

telework-eligible under the agency’s 

normal telework policies and must be a 

current or recent telework program 

participant. The new section 6502(c) 

that authorizes required telework in lieu 

of investigative leave is itself a 

legislative update. Forecasting any 

additional legislative updates is beyond 

the scope of these regulations; however, 

these regulations do not require any 

further legislative updates. OPM will 

consider whether updating its existing 

telework guidance and leave guidance is 

necessary. 

Section 630.1503(d)—Reassessment and 

Return to Duty 

Comment: Regarding proposed 

§ 630.1503(d)(1) and (d)(4), two agencies 

asked for the specific time frame in 

which an employee would be expected 

to ‘‘report promptly’’ if an agency 

requires the employee to return to duty. 

A third agency asked OPM to consider 

adding ‘‘normally within 2 hours,’’ or 

include a reasonable standard that 

would address what is meant by a 

‘‘prompt’’ return to work. The agency 

opined that the additional language 

would lead to less confusion between 

managers and employees in determining 

whether an employee has returned to 

duty ‘‘promptly.’’ 

OPM response: Agencies are 

responsible for establishing reporting 

requirements and communicating 

expectations to employees when they 

are notified of placement on 

investigative leave or notice leave, 

including what is meant by ‘‘report 

promptly,’’ as this could vary depending 


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on an agency’s and employee’s 

particular situation. 

Comment: An individual stated that 

proposed §§ 630.1503(d)(1) and (d)(4) 

are substantially similar regarding the 

employee’s obligation to be available at 

any time and request leave if 

unavailable and recommended edits for 

brevity and combining the sections. 

OPM response: OPM agrees that there 

is some redundancy between paragraphs 

(d)(1) and (d)(4). In this final rule, the 

paragraphs are revised to address that 

redundancy. 

Comment: An agency recommended 

that proposed § 630.1503(d)(4), 

providing that an employee who is 

placed on investigative leave or notice 

leave must be available to report 

promptly to an approved duty location, 

should allow reporting at the start of the 

next business day to be considered 

‘‘prompt’’ reporting. The agency 

asserted that it may be impossible for an 

employee to physically report to work 

on the same day the employee is 

instructed to do so, given mass transit 

schedules and other limitations on 

commuting over which the employee 

may have no control. The agency 

asserted that, at a minimum, the 

employee should be permitted to take 

leave (even if not requested in advance) 

for the remainder of that day and report 

to work without penalty at the start of 

the employee’s tour of duty on the next 

business day. 

OPM response: Agencies are 

responsible for establishing reporting 

requirements and communicating 

expectations to employees when they 

are notified of placement on 

investigative leave or notice leave, 

including what is meant by ‘‘report 

promptly,’’ as this could vary depending 

on an agency’s and employee’s 

particular situation. 

Section 630.1504(b)—Duration of 

Investigative Leave 

Comment: A union recommended that 

OPM revise the language in proposed 

§ 630.1504(b) to clarify that any 

interruptions in investigative leave 

would extend the amount of 

investigative leave available by the 

number of days of interruption. The 

union asked if, in the case of an 

employee whose initial 30-day period of 

investigative leave is scheduled to end 

on July 15, but who opted to take 2 days 

of sick leave in the first week of July, the 

period of investigative leave would be 

extended until July 17. 

OPM response: Technically, the 

period of investigative leave is not 

extended by interruptions but the 

calendar date on which the employee 

will have been placed on 30 workdays 

of investigative leave may need to be 

adjusted if there are any interruptions in 

investigative leave. The duration of 

investigative leave is based on the 

number of ‘‘workdays’’ on which an 

employee is on investigative leave. If a 

period of investigative leave is 

interrupted, the employee is not on 

investigative leave during the 

interruption, and those days would not 

count against the 30-workday limit. 

Because investigative leave may be 

charged solely on regular workdays, any 

paid holidays, for example, would also 

interrupt investigative leave (see 

references to ‘‘workdays’’ in § 630.1504). 

OPM will also emphasize this point in 

its supporting guidance. 

Comment: An agency asked if there is 

a limit to the hours of investigative 

leave that can be authorized. 

OPM response: There is no statutory 

limit; however, agencies must comply 

with the requirements for approving 

extensions (§ 630.1504(f)) and further 

extensions (§ 630.1504(g)), both of 

which may be made in increments of up 

to 30 workdays. 

Comment: An agency stated that, 

under the proposed regulations, 

agencies can extend the investigative 

leave and notice leave periods in 30- 

workday intervals, up to 90 workdays, 

and may extend the period beyond 90 

workdays where appropriate. The 

agency believed that these ‘‘open-ended 

extensions’’ are tantamount to 

unscheduled paid vacation for 

employees suspected of misconduct and 

can, in some instances, be viewed as 

disciplinary actions under chapter 75 

without due process. The agency 

proposed that the investigative leave 

and/or notice leave periods be limited to 

60 days with no extensions. The agency 

further proposed that the CHCO be 

given the authority to delegate their 

authority to grant or deny extensions. 

OPM response: First, the agency is 

incorrect in its interpretation that notice 

leave has extensions. Extensions are 

only applicable to investigative leave. 

Additionally, the authority to allow 

extensions of investigative leave beyond 

a total of 60 workdays is specifically 

authorized by statute. The extensions to 

investigative leave are, by definition, 

not open-ended, and are neither 

‘‘unscheduled paid vacation’’ (because 

the employee must be ready to return to 

work at any time), nor a punishment (as 

the employee continues to be 

compensated). The extensions are meant 

to further protect the Government from 

harm to people, data, systems, and 

facilities while the investigation is 

completed. Once the maximum number 

of extensions is reached under 

§ 630.1504(f)(2), further extensions 

require a report to Congress (see 

§ 630.1504(g)). Accordingly, OPM will 

not adopt the agency’s proposal that 

investigative leave and/or notice leave 

be limited to 60 workdays. Regarding 

the agency’s proposal that the 

regulations authorize agency CHCOs to 

delegate their authority for granting or 

denying extensions, the Act and rule 

already specify that incremental 

extensions of investigative leave are 

permitted only if approved by the CHCO 

of an agency or the CHCO’s designee. 

There is no need to delegate authority 

to deny a request for an extension, since 

extensions of investigative leave will 

not occur without a positive approval. 

Comment: A union referenced the 

preamble of the proposed § 630.1504 

which stated that ‘‘[a]gencies are 

expected to expeditiously work to 

resolve investigations’’ (82 FR 32270). 

The union asserted that this language 

does not appear in the text of the 

proposed regulations and stated that it 

is important to include such language in 

the regulations because many agencies 

do not give investigations the 

appropriate level of urgency. 

OPM response: In section 1138(b) of 

the Act, Congress indicated that usage of 

administrative leave had, in Congress’s 

view, exceeded reasonable amounts and 

resulted in significant costs to the 

Government. Congress stated that 

agencies should (1) use administrative 

leave sparingly and reasonably, (2) 

consider alternatives to use of 

administrative leave when addressing 

personnel issues (e.g., employees are 

under investigation), and (3) act 

expeditiously to conclude investigations 

and either return the employee to duty 

or take an appropriate personnel action. 

Thus, agencies are expected, by statute, 

to conclude investigations expeditiously 

and to take appropriate action 

afterwards. We note, however, that some 

investigations covered by the Act are 

controlled by an entity outside the 

employing agency, see 5 U.S.C. 

6329b(a)(6), and that other 

investigations within the agency’s 

control may pose issues that require 

evidence that takes time to gather. 

Neither the statute nor the regulations, 

therefore, impose a time limit on the 

duration of an investigation but they do 

institute accountability measures on the 

use of investigative leave, which will 

encourage expeditious and appropriate 

resolution where the agency controls the 

investigation. 

Section 630.1504(c)—Written 

Explanation to Employee Regarding 

Placement on Investigative Leave 

Comment: Regarding the written 

notice to an employee under proposed 


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48See section 6329b(b)(3)(A) and § 630.1504(a)(1). 

§ 630.1504(c), advising them that they 

are being placed on investigative leave, 

an agency requested clarification as to 

the information required and the 

information within the discretion of the 

agencies to include through 

implementing policy. The agency also 

requested clarification regarding 

whether an agency must include a 

notice of appeal rights in a notice where 

the employee is placed on investigative 

leave for 70 workdays or more, since 

that is deemed to be a ‘‘personnel 

action’’ under the prohibited personnel 

practices provisions. 

OPM response: Section 630.1504(c) 

states that, if an agency places an 

employee on investigative leave, the 

agency must provide written 

explanation that (1) describes the 

limitations of the leave placement, 

including the duration of leave; (2) 

includes notice that, at the conclusion 

of the period of investigative leave, the 

agency must take an action under 

paragraph (d) of this section; and (3) 

includes notice that placement on 

investigative leave for 70 workdays or 

more is considered a ‘‘personnel action’’ 

under the prohibited personnel 

practices provisions at 5 U.S.C. 

2302(b)(8)–(9). These required items 

must be included in the written notice 

to the employee. Inclusion of anything 

beyond these items is at an agency’s 

discretion. 

Comment: An association 

recommended that the written 

determinations for investigative leave 

and notice leave detail the agency’s 

rationale for imposing the leave to assist 

a potential review by the MSPB, the 

Office of Special Counsel, and others. 

Specifically, the association requested 

an amendment to proposed 

§§ 630.1504(c) and 630.1505(c) that 

agencies must, within the written 

explanation of leave to the employee, 

‘‘explain the rationale for the agency’s 

determinations that the employee must 

be removed from the workplace based 

on the criteria in § 630.1503(b)(1) and 

that the options in § 630.1503(b)(2) are 

not appropriate.’’ 

OPM response: Nothing precludes an 

agency from establishing a policy for 

such a practice. OPM declines to 

mandate such a requirement through 

regulation because, in some instances, 

prematurely disclosing certain 

information could negatively affect the 

integrity of the investigation. 

Comment: An agency noted that 

section 6329b(b)(4)(A) provides for a 

written ‘‘explanation’’ of whether the 

employee was placed on investigative 

leave or notice leave and that the statute 

then details in the requirements of the 

explanation. The agency stated that the 

proposed rule suggests a greater agency 

burden regarding this explanation than 

what is required under the statute and 

suggested amending proposed 

§ 630.1504(c) to include the words 

‘‘consisting of’’ instead of ‘‘must 

include.’’ The agency also suggested 

amending proposed § 630.1505(c) in the 

same manner. 

OPM response: The additional 

requirement that OPM added with 

respect to the written explanation was 

to notify the employee of the 70- 

workday threshold for treating 

placement on investigative leave as a 

‘‘personnel action’’ under the prohibited 

personnel practices provisions in 5 

U.S.C. 2302(b)(8)–(9). OPM determined 

that notice to the employee of this 

treatment was important since it was 

provided under the Act (section 

6329b(g)). The other regulatory 

requirements for the written explanation 

for an employee placed on notice leave 

are consistent with statutory 

requirements. OPM merely clarified that 

the notice period defined the limitation 

on notice leave. OPM is making no 

changes based on these comments. 

Comment: An individual stated it was 

unclear if the written explanation is 

required if an employee is placed on 10 

days of administrative leave for 

investigative purposes. 

OPM response: The written 

explanation required under 

§ 630.1504(c) applies only when an 

employee is placed on investigative 

leave under section 6329b and subpart 

O. An employee cannot be placed on 

such investigative leave until the 

employee has reached the 10-workday 

annual limit on administrative leave for 

investigative purposes under section 

6329a and subpart N.48 Administrative 

leave for investigative purposes is not 

‘‘investigative leave’’ that requires a 

written explanation. The regulations are 

clear in this regard, so OPM will make 

no changes based on this comment. 

Section 630.1504(d)—Agency Actions 

Related to Investigative Leave 

Comment: An agency and a union 

commented regarding proposed 

§ 630.1504(d), which provides that not 

later than the day after the last day of 

an initial or extended period of 

investigative leave, an agency must take 

one of the following actions: return the 

employee to duty, take one or more of 

the actions under § 630.1503(b)(2), 

propose or initiate an adverse action 

against the employee, or extend the 

period of investigative leave. The 

agency noted that, pursuant to 

§ 630.1505(a), notice leave cannot be 

initiated until after a notice of proposed 

adverse action is issued. The agency 

stated that § 630.1504(d) presumably 

requires an agency to leave the 

employee on investigative leave after 

the inquiry is completed to cover the 

employee’s absence from the workplace 

during the process of reviewing the 

investigation and drafting any adverse 

action. The union asked if it is OPM’s 

position that the agency should 

continue to carry an employee on 

investigative leave during the agency’s 

various processes related to labor/ 

employee relations, so long as the 

agency still believes the employee is a 

threat to the agency/systems/personnel/ 

general public. The union stated that 

OPM should clarify if it would be 

proper for an agency to use investigative 

leave while it continues the labor/ 

employee relations process after an 

investigation has been completed but 

before an adverse action has been 

proposed. 

OPM response: It is correct that notice 

leave would not commence until the 

employee has received a notice of a 

proposed adverse action. As noted in 

the discussion of general comments 

with respect to the definition of 

‘‘investigation,’’ OPM considers the 

investigation to include a variety of 

activities associated with the factfinding stage, such as preparation of a 

report and/or recommendation(s). The 

investigation would also include 

settlement negotiations that could lead 

to a recommendation. In short, the 

investigation includes all of the steps 

leading to the agency’s decision 

regarding whether to issue a notice of 

proposed action. If an agency is 

planning to issue a notice of proposed 

adverse action based on its 

investigation, the period of investigation 

may be viewed as not completed until 

the agency issues the notice. Thus, an 

agency can avoid any gap and provide 

for consecutive use of the two types of 

leave, where appropriate. 

Section 630.1504(f)—Extensions of 

Investigative Leave 

Comment: An agency recommended 

deleting the requirement that any 

extension of the initial 30 workdays of 

investigative leave must be approved by 

the CHCO or designee. The agency 

argued that this elevates the approval 

level too high within the chain of 

command unnecessarily. The agency 

believed that extensions of investigative 

leave should be approved by local 

commanders/directors. 

OPM response: The requirement that 

extensions of investigative leave be 

approved by the CHCO or designee is a 

statutory requirement under section 


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49 5 U.S.C. 7513(b)(1). 

50See § 630.1503(c); see also discussion of this 

issue in our responses to comments on 

§ 630.1503(c). 

6329b(c). OPM notes, though, that 

neither the Act nor final rule specify the 

appropriate level to which this function 

can be delegated and agency CHCOs 

have the discretion to make such a 

determination. 

Comment: A union recommended that 

proposed § 630.1504(f)(3) be revised to 

include language included on page 

32271 of the proposed regulations 

indicating that: (1) requests for 

extensions of investigative leave should 

be used sparingly, (2) approving 

officials should act in a timely manner 

on such extensions, and (3) agencies 

should not submit automatic requests 

for extension. The union also suggested 

that OPM clarify that the approving 

official (CHCO or designee) be required 

to consult directly with the investigator 

who is conducting the investigation, 

rather than the investigator’s supervisor 

or some other person not closely 

familiar with the investigation. 

OPM response: Since the statute and 

regulations establish a process for 

approving extensions in 30-workday 

increments, the referenced language 

does not need to be included in the 

regulatory text. The process compels 

timely action and requires the 

approving official to make a written 

determination that use of investigative 

leave is warranted with each extension 

(§ 630.1504(f)(3)(i)). This process also 

discourages ‘‘automatic’’ requests for 

extensions and promotes sparing but 

necessary use of investigative leave. The 

statutory and regulatory requirements to 

report on use of investigative leave also 

address these issues. With respect to the 

union’s suggestion that an approving 

official consult directly with the 

investigator conducting the 

investigation, the regulatory language 

‘‘after consulting with the investigator 

responsible for conducting the 

investigation’’ (§ 630.1504(f)(3)(ii)) is 

clear on its face, and is the exact 

language used in the statute (see section 

6329b(c)(1)). OPM is making no changes 

based on these comments. 

Section 630.1504(g)—Further 

Extensions of Investigative Leave 

Comment: An agency recommended 

adding the word ‘‘However’’ at the start 

of the second sentence in proposed 

§ 630.1504(g), regarding further 

extensions of investigative leave after an 

employee has reached the maximum 

number of extensions of investigative 

leave under paragraph (f)(2), to make 

clear that the first sentence is subject to 

the second sentence. 

OPM response: OPM agrees and is 

revising § 630.1504(g) accordingly. 

Comment: An agency noted that rare 

circumstances may require that an 

employee be removed from the 

workplace for more than 90 days and 

asked what the process would be for an 

extension of investigative leave in these 

situations, specifically, if the request 

would go to OPM. Further, the agency 

asked if there will be leniency for the 

‘‘crime provision.’’ The agency stated 

that, while indefinite suspensions are an 

option, they are frequently not 

supported by the MSPB because the 

employee is only charged and not found 

guilty. 

OPM response: Requests under 

§ 630.1504(g) do not go to OPM. The socalled ‘‘crime provision’’ to which the 

agency refers is in chapter 75 of title 5, 

U.S. Code. It allows an agency to 

shorten the notice period of an adverse 

action where there is reasonable belief 

that the employee has committed a 

crime for which a sentence of 

imprisonment may be imposed.49 The 

crime provision found at section 

7513(b)(1) and § 752.404(d)(1) is 

applicable to notice leave under 

§ 630.1503(b)(2)(iv) but not investigative 

leave. While notice leave is not subject 

to a time limit (other than the length of 

the notice period), notice requirements 

applicable to the particular action 

continue to apply. 

Comment: A union expressed concern 

that agencies might ‘‘tweak’’ an 

investigation, such as by treating it as a 

new and different investigation, to 

circumvent the Congressional reporting 

requirements associated with further 

extensions of investigative leave under 

§ 630.1504(g). The union recommended 

that OPM add a regulatory provision to 

bar such activity. 

OPM response: OPM does not 

consider it is necessary to add a 

regulatory provision stating that 

agencies may not act inappropriately in 

administering investigative leave. OPM 

notes that there are various 

accountability and transparency 

measures built into the law and 

regulations, including written approvals 

by specified officials, recordkeeping 

requirements, reporting requirements, 

and GAO reviews. It is also possible for 

an employee to become subject to new 

investigations regarding separate 

matters, and it is not practical to 

establish precise rules regarding when 

an investigation should be treated as an 

entirely new or separate investigation 

for purposes of the investigative leave 

law and regulations. Agency officials are 

authorized to exercise their best 

judgment in the conduct of 

investigations and the approval of 

investigative leave. 

Comment: Two agencies 

recommended that OPM clarify the 

reporting requirements regarding 

employees who are required to telework 

in lieu of investigative leave, as 

regulated in § 630.1504(g)(5), reflecting 

the statutory reporting requirement to 

Congress in section 6329b(d)(1)(E) 

regarding employees required to 

telework, triggered when an agency is 

approving a ‘‘further’’ extension of 

investigative leave under section 

6329b(d). Both agencies noted that an 

employee is not on investigative leave 

while performing required telework and 

found it confusing that a further 

extension of investigative leave was 

being approved for an employee in 

required telework status under section 

6502(c). Both agencies asked whether 

the report to Congress including 

information on telework referred to 

cases where the employee was 

teleworking at some point during an 

investigation and investigative leave. 

OPM response: As explained above, 

an employee in required telework status 

is in work status, not investigative leave 

status. However, section 6502(c) states 

that an agency may require telework ‘‘if 

an agency places an employee in 

investigative leave.’’ In drafting the 

regulations, OPM interpreted this to 

mean that telework may be required 

only when the employee would 

otherwise be placed on investigative 

leave.50 OPM has concluded that this 

interpretation reflects the best reading of 

the statute because a literal reading 

would have the effect of authorizing 

agencies to compel the performance of 

regular work notwithstanding an 

employee being in a defined leave 

status, which would be unworkable. In 

requiring reporting to Congress on 

telework for an employee who is being 

approved for a ‘‘further’’ extension of 

investigative leave, OPM believes that 

Congress did not intend to count 

required telework time as if it were 

investigative leave time. The purpose of 

the approval requirements and 

conditions associated with the initial 

and further extensions of investigative 

leave is to gather information and 

control the use of paid time off, not 

work time. OPM notes that it is possible 

that an employee would telework 

intermittently and thus have a mix of 

investigative leave and telework hours 

over an investigation period. The 

reporting requirements in section 

6329b(d)(1)(E) and § 630.1504(g)(5) 

mean that an agency must report to 

Congress on the use of required 


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telework for the employee in question 

during the entire period of investigation 

prior to the further extension of 

investigative leave. OPM is revising 

§ 630.1504(g)(5) to clarify this point. 

Section 630.1504(i)—Possible Prohibited 

Personnel Action 

Comment: With regard to proposed 

§ 630.1504(i), an individual questioned 

whether 10 days of administrative leave 

for investigative purposes would be 

counted towards the 70-workday 

threshold that allows placement in 

investigative leave to be considered a 

‘‘personnel action’’ under the prohibited 

personnel practices provisions at 

section 2302(b)(8)–(9). 

OPM response: As explained above, 

an employee must be placed on 10 days 

of administrative leave for investigative 

purposes before an employee can be 

placed on investigative leave. Until and 

unless that period of administrative 

leave is exhausted, such leave is not 

investigative leave under section 6329b 

and does not count toward the 70- 

workday threshold in section 6329b(g) 

and § 630.1504(i). 

Comment: An agency requested 

clarification regarding which entity 

would review an employee’s claim that 

placement in investigative leave for 70 

workdays or more qualified as a 

‘‘personnel action’’ under the prohibited 

personnel practices provisions. The 

agency said that this information was 

needed because the regulations require 

that agencies include information about 

the 70-workday threshold in the initial 

notice to the employee regarding 

placement on investigative leave. 

OPM response: Section 630.1504(c)(3) 

requires that agencies include 

information about the 70-workday 

threshold under § 630.1504(i) as part of 

the written explanation to an employee 

placed on investigative leave. Placement 

on investigative leave is not an adverse 

action and does not establish an 

independent basis for filing a complaint 

with the U.S. Office of Special Counsel 

(OSC) or an action directly appealable to 

the MSPB. Similarly, the regulatory 

provision does not create a mechanism 

for independent review for employees 

who are placed on investigative leave 

for 70 workdays or more. Rather, the 

provision permits OSC to determine that 

the personnel action required to 

nonfrivolously allege reprisal is satisfied 

if an employee has been on investigative 

leave for 70 or more workdays, and 

alleges reprisal based on protected 

disclosures (section 2302(b)(8)) or 

activity (section 2302(b)(9)). Further, 

because placement on investigative 

leave is not a personnel action directly 

appealable to the MSPB, employees 

must seek corrective action with OSC 

before filing an individual right of 

action appeal to the MSPB (section 

1221). OPM plans to provide agencies 

with guidance regarding the language 

agencies should use in written 

explanations with respect to the 70- 

workday threshold. 

Comment: An organization argued 

that proposed § 630.1504(i) was 

‘‘puzzling’’ and largely ineffectual. It 

questioned why the 70-workday 

threshold applied only to investigative 

leave. The organization stated that the 

provision was ineffectual because, in 

the absence of an independent 

whistleblower claim, OSC would not 

have jurisdiction to act. For an 

employee subjected to excessive 

investigative leave because, for example, 

the employee was politically 

inconvenient or doing legitimate work 

that is potentially embarrassing to 

agency management, this provision 

offers no protection. The organization 

noted, though, that retaliatory 

investigations are already a prohibited 

personnel practice under the provision 

covering ‘‘any other significant change 

in duties, responsibilities, or working 

conditions’’ (section 2302(a)(2)(xi)). 

OPM response: Section 630.1504(i) 

repeats the statutory language in section 

6329b(g). The effect of the law is that 

the action to place an employee on 

investigative leave shall be considered a 

personnel action that could trigger 

application of prohibited personnel 

practices provisions in section 

2302(b)(8) and (9) (which include 

prohibitions against retaliatory 

personnel actions) once the employee 

has been placed on investigative leave 

for 70 workdays or more. 

Section 630.1505—Administration of 

Notice Leave 

Comment: Fourteen commenters, 

including two agency representatives, 

expressed concern about an employee 

remaining in the workplace after 

receiving a notice of proposed removal 

if retaining the individual in the 

workplace created an unnecessary risk 

of workplace violence. They also 

expressed concern that allowing an 

employee to continue to report to the 

workplace after receiving a notice of 

proposed removal would otherwise be 

disruptive, unproductive, a waste of 

taxpayer dollars, or of no benefit to the 

agency. Twelve individual commenters 

and one agency maintained that 

proposed § 630.1505 should be revised 

to state that whenever an agency 

proposes the removal of an employee, it 

shall, or normally will, place the 

employee on notice leave. 

OPM response: These regulations are 

based on statutory requirements. In 

accordance with statute, 

§ 630.1503(b)(1) provides that notice 

leave may be used only when the agency 

makes the required determination, after 

consideration of the baseline factors 

identified in § 630.1503(e), that the 

employee must be removed from the 

workplace during a notice period to 

protect agency facilities or systems, the 

Federal workforce, or the public from 

harm. If, after consideration of the 

baseline factors and the consideration of 

other options, the agency determines 

that the continued presence of the 

employee in the workplace while in a 

notice period meets one or more of the 

criteria listed in § 630.1503(b)(1), the 

agency may place the employee on 

notice leave. Nothing in the regulation 

requires agencies to keep employees in 

the workplace if an agency determines, 

pursuant to these baseline factors, that 

an employee presents a workplace 

violence threat. Notice leave is 

approved at the agency’s discretion 

(subject to statutory and regulatory 

requirements)—it does not create a new 

entitlement. We note that all the 

commenters suggested limiting the 

regulation to the context of an 

employee’s removal or termination from 

Federal service. However, the statute, 

and therefore this regulation, does not 

make a distinction among the types of 

adverse actions. The procedural 

requirements will be applied 

consistently to all adverse actions. 

Comment: Eleven commenters, 

including one agency representative, 

recommended that the regulatory 

language include a directive that the 

authority for approving notice leave be 

delegated to the lowest reasonable level 

within the agency so that frontline 

managers are empowered to protect the 

Federal workplace once an employee’s 

removal has been proposed. An 

individual suggested that, because 

extensions of investigative leave have 

specific requirements for levels of 

approval, the level of approval for initial 

placement on administrative leave and 

investigative leave should likewise be 

clarified in the regulation. 

OPM response: This regulation does 

not prohibit agencies from delegating 

the authority for approving notice leave 

to the lowest reasonable level within the 

agency. Although there are required 

approval levels regarding administrative 

leave (§§ 630.1402 (definition of 

‘‘agency’’) and 630.1403), and 

extensions of investigative leave 

(§ 630.1504(f) and (g)), there are no such 

requirements regarding notice leave. 

Agencies have the discretion to 

establish the appropriate authority level 


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for granting notice leave within their 

organizations. 

Comment: Six individuals referenced 

the Civil Service Reform Act of 1978 

and Congressional intent regarding the 

notice period for employees who have 

received a notice of proposed removal, 

and one individual asserted that the 

proposed regulations are detrimental to 

the efficiency of the service, a key 

component of the disciplinary system. 

OPM response: These comments are 

outside the scope of these regulations 

because Congress has imposed these 

requirements in the Administrative 

Leave Act notwithstanding the 

provisions of the Civil Service Reform 

Act. Nonetheless, we do not see an 

inconsistency. The relevant portion of 

the Civil Service Reform Act, 

implemented in § 752.404(b)(3), states: 

‘‘Under ordinary circumstances, an 

employee whose removal or suspension, 

including indefinite suspension, has 

been proposed will remain in a duty 

status in his or her regular position 

during the advance notice period. In 

those rare circumstances where the 

agency determines that the employee’s 

continued presence in the workplace 

during the notice period may pose a 

threat to the employee or others, result 

in loss of or damage to Government 

property, or otherwise jeopardize 

legitimate Government interests, the 

agency may elect one or a combination 

of the following alternatives: . . . (iv) 

Placing the employee in a paid, nonduty 

status for such time as necessary to 

effect the action.’’ The regulation in 

§ 630.1503 does not supersede or 

conflict with this regulation. Rather it 

identifies baseline factors that the 

agency must consider in making this 

determination. Regarding the assertion 

that the proposed regulations are 

detrimental to the efficiency of the 

service, OPM disagrees and notes that 

the Act requires an agency to make this 

formal determination before it may 

place the employee on notice leave. We 

also note that the efficiency of the 

service remains the standard applied in 

any underlying adverse action 

proceedings (§§ 752.202 and 752.403). 

The duty or leave status of the employee 

during the notice period of an adverse 

action is irrelevant to whether the 

efficiency of the service standard has 

been met for purposes of an adverse 

action. 

Comment: Ten individuals stated that 

the proposed regulations are overly 

bureaucratic, narrowly written, or 

otherwise make it exceedingly difficult 

to take an employee out of the 

workplace pending a decision on a 

notice of proposed adverse action. Some 

of the individuals asserted that the 

proposed regulations will result in 

managers being reluctant to take action 

against poor performance or employees 

who have engaged in misconduct. 

OPM response: The regulations in 

§ 630.1503 are based on statutory 

requirements. In accordance with 

statute, § 630.1503(b)(1) provides that 

notice leave may be used only when the 

agency makes the required 

determination, using the baseline factors 

identified in § 630.1503(e), that the 

employee must be removed from the 

workplace during a notice period to 

protect agency facilities or systems, the 

Federal workforce, or the public from 

harm. These regulations have been 

written in accordance with the 

requirements of the law. 

Comment: An association commented 

that the proposed regulations, as they 

relate to notice leave, will not carry out 

the intent of Congress because there are 

no limitations to curb the ‘‘ongoing 

abuses’’ of leave. While the association 

acknowledged that a period of notice 

leave ends on the effective date of the 

adverse action or on the date on which 

the agency notifies the employee that no 

adverse action will be taken, the 

association argued that ‘‘unlimited’’ 

notice leave would allow agencies to 

issue an ‘‘unjustifiable removal proposal 

followed by imposing indefinite leave’’ 

allowing the agency to ‘‘disappear the 

targeted employee without an ounce of 

due process or procedural protection.’’ 

The association stated that the proposed 

regulations on notice leave rely upon 

‘‘agency self-policing.’’ 

OPM response: This comment is 

outside the scope of these regulations. 

OPM notes, though, that the statutory 

provisions in chapter 75, and the 

procedural requirements for proposing 

and taking an adverse action against an 

employee regulated in part 752, do not 

require a decision within a specified 

period of time. The provisions of the 

Act and this final rule do not change the 

procedural requirements in part 752. 

Further, placement of employees on 

paid leave does not deprive them of a 

property interest so the due process is 

not implicated. The regulations in 

subpart O are in accordance with the 

requirements of law and reflect the 

intent of Congress. Additionally, 

§ 630.1506 requires that an agency 

maintain an accurate record of the 

placement of an employee on 

investigative leave or notice leave, 

including the reasons for the 

authorization of notice leave (including 

the alleged employee action(s) that 

necessitated the issuance of a notice of 

a proposed adverse action), the basis for 

the determination made under 

§ 630.1503(b)(1), an explanation why an 

action under § 630.1503(b)(2) was not 

appropriate, the length of the period of 

notice leave, and the amount of salary 

paid to the employee during the period 

of leave. An agency must make these 

records available upon request to any 

committee of jurisdiction, to OPM, to 

GAO, and as otherwise required by law. 

Agencies must also provide information 

to the GAO, which is required under 

section 1138(d)(2) of Public Law 114– 

328 to submit reports to specified 

Congressional committees on a 5-year 

cycle. Accordingly, there are 

mechanisms to ensure agency 

accountability for placing employees on 

notice leave. 

Comment: An agency stated that 

proposed 630.1505(a) refers to notice 

leave upon a proposed adverse action 

but other provisions also refer to 

‘‘disciplinary actions.’’ The agency 

argued that a distinction between 

adverse actions and disciplinary actions 

is not drawn in the underlying statute 

or regulations concerning adverse 

actions. 

OPM response: By law, notice leave is 

linked to issuance of a notice of 

proposed adverse action (section 

6329b(a)(8)). The regulatory definition 

of the term investigation, which is used 

in conjunction with investigative leave, 

encompasses the investigation of 

matters that could lead to appealable 

adverse actions or to non-appealable 

adverse actions, which we described as 

‘‘disciplinary actions’’ (§ 630.1502) in 

the NPRM. To clarify, OPM is adopting 

a definition of investigation at 

§ 630.1502 that specifies that the 

regulation is intended to cover a variety 

of inquiries that could result in any type 

of action adverse to the employee and 

removes the phrase ‘‘disciplinary 

actions.’’ 

Comment: An agency referenced 

proposed § 630.1505(b) which states, 

‘‘The placement of an employee on 

notice leave shall be for a period not 

longer than the duration of the notice 

period.’’ (Emphasis added by the 

commenter). The agency interpreted this 

to mean that the notice period was 

limited to 30 days. The agency argued 

that they routinely arrange for short 

extensions to the notice period to 

accommodate requests from employees’ 

counsel, to arrange for settlement 

agreements, or facilitate retirement/ 

resignation effective dates, and that 

there is no provision for extending the 

notice period in the proposed 

regulations. 

OPM response: This final rule does 

not limit a notice period to 30 days. As 

stated in § 630.1502, notice period 

means ‘‘a period beginning on the date 

on which an employee is provided 


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51See, e.g., §§ 351.803(c)(3) and 

550.1615(e)(1)(viii) and (2)(viii) for OPM’s use of 

this authority in other contexts. 

notice, as required under law, of a 

proposed adverse action against the 

employee and ending—(1) On the 

effective date of the adverse action; or 

(2) On the date on which the agency 

notifies the employee that no adverse 

action will be taken.’’ Because there is 

no such limit, there is no need (or 

provision) for extension of the notice 

period. In fact, 5 U.S.C. chapter 75 and 

5 CFR part 752 establish a floor, not a 

ceiling, for the notice period relating to 

an adverse action. 

Comment: An agency noted that there 

were no proposed regulations on 

extensions of an employee’s notice 

period and asked if an unlimited 

amount of time could be granted. The 

agency also asked if the 70-workday 

threshold in § 630.1504(i) applied to the 

notice period. 

OPM response: Section 6329b did not 

establish approval and reporting 

requirements for extensions of notice 

leave. Notice leave may be granted only 

during the ‘‘notice period,’’ as defined 

in § 630.1502. As explained above, the 

notice period ends on (1) the effective 

date of an adverse action or (2) the date 

on which the agency notifies the 

employee that no adverse action will be 

taken. Consistent with section 6329b(g), 

the 70-workday threshold in 

§ 630.1504(i) applies only to 

investigative leave (i.e., only workdays 

of investigative leave count towards this 

threshold). 

Section 630.1506—Records and 

Reporting 

Comment: An agency recommended 

that proposed § 630.1506 be revised to 

clarify the length of time records need 

to be maintained. 

OPM response: The recordkeeping 

requirements in § 630.1506 are based on 

the statutory requirements in section 

6329b(f), which did not specify a length 

of time for maintaining these specific 

records. In this final rule, OPM is 

specifying a minimum retention period 

of 6 years for records on investigative 

leave and notice leave at 

§ 630.1506(b)(3). We are also specifying 

a minimum retention period of 6 years 

for records on administrative leave 

under subpart N at § 630.1406(b). 

Comment: Three unions referenced 

the requirement in proposed 

§ 630.1506(b)(2), that any action to make 

a record available regarding use of 

investigative leave or notice leave is 

subject to other applicable laws, 

Executive orders, and regulations 

governing the dissemination of sensitive 

information related to national security, 

foreign relations, or law enforcement 

matters. The unions asserted that the 

Privacy Act (section 552a) should be 

included in the list of statutes to which 

the leave records under discussion are 

subject so that agencies are cognizant of 

their obligations in this area. 

OPM response: OPM agrees that the 

Privacy Act (section 552a) is an 

‘‘applicable law’’ under the provision 

and that disclosures of sensitive 

information are subject to that Act but 

do not believe it is necessary to provide 

a list of applicable laws in the 

regulatory text. We note, also, that a 

general exemption from the Privacy Act 

applies to the disclosure of information 

to Congress or GAO (section 552a(b)(9)– 

(10)), which are two of the entities to 

which agencies must make records on 

investigative leave and notice leave 

available (§ 630.1506(b)). 

Comment: Two unions expressed 

concern that agencies might record 

sensitive information regarding the 

reasons why an employee was placed on 

investigative leave and that this 

information might be released 

inappropriately within or outside the 

agency because of the recordkeeping 

requirements in § 630.1506. The unions 

were particularly concerned that there 

would be a written record of 

investigative leave even if an employee 

is found to be innocent following an 

investigation. 

OPM response: The recordkeeping 

requirements in § 630.1506 are based on 

statutory requirements in section 

6329b(f). Congress made no allowance 

in the Administrative Leave Act for 

deleting records on investigative leave 

when the investigation of an employee 

does not lead to a disciplinary or 

adverse action. However, agencies are 

subject to the applicable laws and rules 

governing the handling of sensitive 

information and personnel records, 

including the Privacy Act (section 

552a). Section 630.1506(b)(2) 

specifically states that agencies are 

subject to laws, Executive orders, and 

regulations governing the handling of 

sensitive information related to national 

security, foreign relations, or law 

enforcement matters. If issues arise 

about the handling of sensitive 

information, the relevant agency should 

consult with agency counsel. OPM may 

choose to address the matter in 

guidance. 

Comment: An individual 

recommended deleting proposed 

§ 630.1506(a)(9), which provides that 

agencies must keep records on ‘‘any 

additional information OPM may 

require.’’ A union stated that any 

additional requirements should be 

specified in the regulation. 

OPM response: OPM disagrees with 

this recommendation. Under section 

6329b(f)(1), Congress indicated that 

agencies must retain records regarding 

investigative leave and notice leave and 

included specific items for retention. 

However, the list of items is not 

exhaustive (see section 6329b(f)(1)— 

‘‘including’’ certain items for retention). 

This language indicates that Congress 

anticipated the possibility of additional 

information being kept in the records. 

While OPM has not identified 

additional information that is needed at 

this time, OPM may require additional 

information under § 630.1506(a)(9) 

pursuant to its authority under Civil 

Service Rules V and X (5 CFR parts 5 

and 10) to protect or promote the 

efficiency of the Government and the 

integrity of the competitive service and 

to ensure consistent application of the 

merit system principles.51

Subpart O—Miscellaneous Comments 

Comment: An agency asked if 

employees on investigative leave and/or 

notice leave are subject to ‘‘monitoring 

& calling.’’ The agency stated that it is 

their practice to require an employee to 

be available for contact by phone during 

any period of administrative leave in 

conjunction with an investigation or 

notice period. The agency requested that 

this matter be addressed in the 

regulations. 

OPM response: Matters such as this 

are within the agency’s discretion to 

address within their implementing 

policy on investigative leave and notice 

leave. As addressed in § 630.1503(d), an 

employee on investigative leave or 

notice leave must be prepared to report 

promptly to work. 

Comment: An agency asserted that, if 

an employee continues performing the 

same/similar duties while required to 

telework, it could negatively impact the 

agency’s claim to have a ‘‘lack of 

confidence/trust’’ in the employee, 

which is a critical ‘‘Douglas’’ factor in 

adverse action cases. 

OPM response: Section 630.1503(c) 

describes the alternative of an agency 

requiring an employee to telework in 

lieu of being placed on investigative 

leave. While the law requires agencies 

to consider certain options before 

approving use of investigative leave 

(section 6329b(b)(2)), the law does not 

require agencies to consider the 

telework option (section 6502(c)). An 

agency has discretion in deciding 

whether it will require telework by an 

employee who would otherwise be 

placed in investigative leave, subject to 

the conditions set forth in law and 

regulation. As stated in 


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§ 630.1503(c)(1)(i), before an agency 

requires telework, it must determine 

that it would not pose certain risks to 

Government personnel, property, or 

other interests. After applying these 

conditions, the agency still has the 

discretion to not require telework if it 

determines it would be inappropriate 

(§ 630.1503(c)(1)(iv)). 

Comment: An association stated that 

restrictions of the type included in the 

proposed rule will help avoid 

unnecessary stigmatization of 

employees facing proposed adverse 

actions. The association supports 

allowing notice leave to continue as 

long as needed to allow for a thorough 

review and reasoned decision regarding 

a proposed adverse action and opposes 

artificial limits on the notice period. 

The association supported the approach 

of limiting notice leave to chapter 75 

adverse actions and cited language from 

the preamble of the proposed 

regulations, which stated, ‘‘An 

employee who has not received an 

advance notice of proposed adverse 

action under 5 CFR chapter [sic] 752 

may not be provided notice leave’’ (82 

FR 32267). The association requested 

that OPM explicitly incorporate that 

restriction into § 630.1503. The 

association believed that the policy 

reasons governing legitimate use of 

notice leave, as listed in 

§ 630.1503(b)(1)(i)–(iv), in practice 

apply only to chapter 75 adverse 

actions, and that the types of situations 

where actions that could be adverse in 

a more generic sense can be proposed 

under other legal authorities (e.g., 

chapter 43 performance actions and part 

731 suitability actions) would rarely 

meet the requirements of 

§ 630.1503(b)(1)(i)–(iv). The association 

stated that, to avoid possible 

redundancy between proposed 

§ 630.1503(a)(2)(i) and 

§ 630.1503(a)(2)(ii), and to effectuate the 

policy goals, the two provisions should 

be consolidated and revised. 

Specifically, the association suggested 

that proposed § 630.1503(a)(2) should be 

revised in relevant part to read as 

follows: ‘‘(2) Notice leave: (i) If the 

agency proposes or initiates an adverse 

action against the employee under 5 

CFR part 752 or directly analogous 

misconduct-based adverse action 

authorities; and (ii) The agency 

determines that the employee continues 

to meet one or more of the criteria 

described in paragraph (b)(1) of this 

section.’’ To make clear that reference to 

part 752 is not exclusive, OPM amends 

the definition of Investigation at 

§ 630.1502 to include an ‘‘employee’s 

compliance with or adherence to 

security requirements including 

eligibility to hold a position that is 

national security sensitive under E.O. 

13467, eligibility for access to classified 

information under E.O. 12968, as 

amended, and standards issued by the 

Office of the Director of National 

Intelligence (ODNI).’’ 

OPM response: OPM declines to make 

the suggested change. Although we 

recognize that ‘‘adverse action’’ can be 

a term of art, referring to actions 

pursuant to chapter 75, the part of the 

preamble quoted by the association goes 

on to state, ‘‘Section 630.1503(a)(2)(ii) 

authorizes notice leave, following a 

placement of an employee on 

investigative leave, which may be 

provided after the last day of the period 

of investigative leave if the agency 

proposes an adverse action against the 

employee under 5 CFR [part] 752 or 

similar authority.’’ OPM notes that 

neither the statute nor the regulation 

limits notice leave to adverse actions 

taken under the procedures of chapter 

75. Rather, coverage extends to other 

actions taken under other authorities 

that can result in outcomes adverse to 

the employee—such as removal, 

demotion, or suspension—following a 

period of notice. The sentence in the 

proposed rule referring to part 752 was 

also intended to cover actions under 

these other authorities. To make clear 

that reference to part 752 is not 

exclusive, OPM amends the definition 

of Investigation at 630.1502 to include 

an ‘‘employee’s compliance with or 

adherence to security requirements 

including eligibility to hold a position 

that is national security sensitive under 

E.O. 13467, eligibility for access to 

classified information under E.O. 12968, 

as amended, and standards issued by 

the Office of the Director of National 

Intelligence (ODNI).’’ As to the issue of 

redundancy between § 630.1503(a)(2)(i) 

and § 630.1503(a)(2)(ii), the regulations 

parallel the statutory language in section 

6329b(b)(1). The provisions in section 

6329b(b)(1)(C) and § 630.1503(a)(2)(ii) 

clarify the circumstances under which 

notice leave may immediately follow 

investigative leave. 

Comment: An agency asked how 

investigative leave will affect the use of 

indefinite suspensions. The agency 

asked if investigative leave should 

replace indefinite suspensions as a tool 

available to agencies where there is 

cause to believe a crime has been 

committed for which imprisonment may 

be imposed. The agency believed part 

752 requires clarification regarding 

investigative leave, use of indefinite 

suspensions, and the impact of the 

crime provision. The agency stated that 

the use of administrative leave is 

limited to 10 days and asked if agencies 

are also limited to 10 days for 

investigative leave. Additionally, the 

agency asked about time limitations and 

approval requirements for extensions 

related to investigative leave and notice 

leave. 

OPM response: OPM does not agree 

that the use of indefinite suspensions 

and the crime provision are impacted by 

this rule. Agencies may still use existing 

authorities to levy indefinite 

suspensions and utilize the crime 

provision to shorten the advance notice 

period. Also, the question of whether an 

agency should use investigative leave in 

lieu of imposing an indefinite 

suspension runs contrary to the intent of 

the Administrative Leave Act. Congress 

expressed concern over the use of 

extensive paid, non-duty time as a 

substitute for taking appropriate 

disciplinary action. To use investigative 

leave in such a manner, as questioned 

by the agency, would not find support 

in the law or these regulations. 

Additionally, the application of 

administrative leave for 10 workdays is 

covered in § 630.1604(a). The duration 

of investigative leave is addressed in 

this rule at § 630.1504(b), and 

extensions and further extensions of 

investigative leave are addressed in 

§ 630.1504(f) and (g), respectively. 

Unlike investigative leave, there are no 

extensions regarding notice leave as the 

duration can be as long as the notice 

period. The requirements and duration 

of notice leave are addressed in this rule 

at § 630.1505. 

Amendments to §§ 752.404(b)(3) and 

752.604(b)(2) 

Comment: An agency asked whether 

OPM plans to amend its chapter 75 

regulations (either separately or with 

these regulations) to provide more detail 

regarding notice periods and extensions 

relating to investigative leave. A 

different agency stated that the use of 

investigative leave and notice leave 

impacts OPM’s regulations found in part 

752, which relate to disciplinary and 

adverse actions, and asked if OPM plans 

to amend §§ 752.404 and 752.604. The 

agency asserted that, unless these 

sections are amended, there will be two 

separate parts of the CFR in conflict. 

OPM response: To conform part 752 

to the notice leave provisions in section 

6329b and subpart O, OPM will amend 

the related regulations in §§ 752.404 and 

752.604. Specifically, we will revise 

§§ 752.404(b)(3)(iv) and 

752.604(b)(2)(iv) to explain that an 

agency may place an employee in notice 

leave status for no longer than the 

duration of the notice period if the 

criteria in § 630.1503(b) are met. 


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52See section 4109(a)(1). 

53See subchapter 8 of FPM chapter 410. 

54OPM also notes that, for FLSA-nonexempt 

employees, training time must be treated as 

compensable hours of work if the training time 

meets the hours-of-work conditions in either title 5 

or the FLSA. See 5 CFR 410.402, 551.401(f)–(g), and 

551.423. 

55See Gov’t Accountability Off., ‘‘Federal Paid 

Administrative Leave,’’ Oct. 2014, at https://

www.gao.gov/assets/gao-15-79.pdf. 

We note that investigative leave is 

inapplicable to part 752 as the adverse 

action regulations relate to procedures 

that occur after an agency’s 

investigation is complete. Further, OPM 

does not agree that our amendments to 

part 630 conflict with part 752. The 

adverse action regulations at 

§§ 752.404(b)(3)(iv) and 

752.604(b)(2)(iv) refer to placing 

employees in ‘‘paid, nonduty status’’ 

during a notice period. This paid, 

nonduty status would be approved in 

the form of notice leave under subpart 

O. 

Miscellaneous Comments Regarding 

§ 251.202(a)(3) 

Comment: Two management 

associations expressed general support 

for the proposed regulations but 

questioned how the regulations would 

affect an OPM regulation in part 251 

dealing with use of excused absence for 

employees who attend meetings of a 

professional association from which an 

agency could derive some benefits 

(§ 251.202(a)(3)). In particular, the 

associations expressed concern that any 

administrative leave granted under the 

new subpart N for such meetings would 

be subject to the 10-workday calendar 

year limitation. One association asserted 

that the Administrative Leave Act 

specified a 10-day limit only for 

investigative leave. Both associations 

stated that the new regulation is not in 

line with the intent of the Act and could 

have an unintended consequence of 

limiting the ability for professional 

associations to meet with their 

respective agency leaders. The 

associations requested that OPM revise 

the regulations to exclude time in 

professional management association 

meetings from counting towards the 10- 

workday calendar year limit on 

administrative leave. The management 

associations also questioned how the 

proposed regulations would affect other 

subsections of part 251, such as 

§ 251.202(a)(2), the provision 

authorizing pay to employees who 

attend professional organization 

meetings when such attendance is for 

the purpose of employee development 

or directly concerned with agency 

functions or activities and the agency 

can derive benefits from employee 

attendance at such meetings. 

OPM response: First, as explained 

above, the 10-workday annual limit in 

section 6329a applies to administrative 

leave for investigative purposes so it 

would not apply to the meetings at issue 

in these comments. 

In response to the other parts of this 

comment, OPM analyzed the part 251 

regulation cited by the management 

associations and related laws. Section 

251.202(a)(2) states that, using the 

authority in sections 4109 and 4110, as 

implemented by OPM regulations in 

part 410, an agency may pay expenses 

of employees to attend professional 

organization ‘‘meetings’’ when such 

attendance is ‘‘for the purpose of 

employee development or directly 

concerned with agency functions or 

activities and the agency can derive 

benefits from employee attendance at 

such meetings.’’ This paragraph (a)(2) 

does not expressly address whether an 

agency may provide an employee with 

the employee’s regular pay during such 

attendance—i.e., treat the time as 

compensable work time. However, the 

referenced section 4109 in the training 

law authorizes agencies to pay all or a 

part of an employee’s pay (except 

overtime, holiday, or night differential 

pay) for a period of ‘‘training under this 

chapter’’ (i.e., chapter 41).52 Note that 

this is separate from the authority to pay 

for necessary training expenses under 

section 4109(a)(2). The referenced 

section 4110 is a special authority in the 

training law permitting agencies to pay 

for travel expenses for ‘‘meetings’’ that 

are ‘‘concerned with the functions or 

activities for which the appropriation is 

made or which will contribute to 

improved conduct, supervision, or 

management of the functions or 

activities.’’ Section 410.404 of OPM’s 

training regulations specifically 

addresses attendance at a ‘‘conference’’ 

as a ‘‘developmental assignment’’ under 

section 4110 and describes how 

conference attendance can meet the 

definition of ‘‘training’’ in section 4101. 

Former Federal Personnel Manual 

(FPM) guidance addressed section 4110 

and spoke of ‘‘authorizing attendance at 

meetings without charge to leave,’’ but 

did not specifically refer to use of 

excused absence or administrative 

leave.53

OPM understands that some agencies 

have adopted policies under which 

administrative leave has been used to 

provide pay during employees’ 

attendance at meetings of the type that 

are covered by section 4110. However, 

OPM concludes that the authority in 

section 4109(a)(1) to provide all or a 

part of an employee’s pay during a 

period of training under chapter 41 

applies to the special category of 

‘‘training’’ associated with attendance at 

meetings covered by section 4110. In 

other words, time spent attending 

meetings covered by section 4110 may 

be treated as the equivalent of regular 

work time—not administrative leave—to 

the extent an agency uses the authority 

in section 4109(a)(1) to provide pay for 

the meeting time. OPM notes that, even 

if an agency decides not to pay travel 

expenses for a meeting covered by 

section 4110, it would still be a covered 

meeting for purposes of providing pay 

under section 4109(a)(1). Administrative 

leave would be an issue only if a 

meeting or conference was determined 

not to meet the requirements under 

section 4110 or if an agency decided not 

to provide pay for the meeting time 

under section 4109(a)(1).54

OPM did not propose any regulatory 

changes regarding part 251 and does not 

believe that any changes are necessary 

at this time. 

V. Regulatory Analysis 

A. Statement of Need 

OPM is issuing this final rule to 

implement the administrative leave, 

investigative leave, and notice leave 

provisions of the Administrative Leave 

Act of 2016. The Act created these new 

categories of paid leave in chapter 63 of 

title 5, U.S. Code, specifically at section 

6329a regarding administrative leave 

and at section 6329b regarding 

investigative leave and notice leave. The 

Act directed OPM to prescribe 

implementing regulations to carry out 

these sections including by providing 

guidance to agencies regarding 

acceptable uses for and proper recording 

of these leave categories. 

As explained above in the 

‘‘Background’’ section, in drafting the 

Administrative Leave Act, Congress 

considered an October 2014 report 

entitled ‘‘Federal Paid Administrative 

Leave,’’ prepared by the GAO.55 GAO 

found that agency policies on 

administrative leave varied and that 

some employees were on administrative 

leave for long periods of time, which 

had significant cost implications. GAO 

concluded that ‘‘Federal agencies have 

the discretion to grant paid 

administrative leave to employees to 

help manage their workforces when it is 

in their best interest to do so,’’ but that 

administrative leave should be managed 

effectively since it is a cost to the 

taxpayer. Congress extensively cited the 

GAO report and its findings in 2016 

House and Senate committee reports on 


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56See House Report 114–520, (Aug. 25, 2016), 

accompanying H.R. 4359, at https://

www.govinfo.gov/content/pkg/CRPT-114hrpt520/ 

html/CRPT-114hrpt520.htm; Senate Report 114– 

292, (July 6, 2016), accompanying S. 2450, at 

https://www.govinfo.gov/content/pkg/CRPT114srpt292/html/CRPT-114srpt292.htm. 

57See OPM fact sheet at https://www.opm.gov/ 

policy-data-oversight/pay-leave/leaveadministration/fact-sheets/administrative-leave/. 

draft bills that eventually became the 

Administrative Leave Act.56

In the sense of Congress provisions in 

section 1138(b) of the Act, Congress 

reiterated the need for legislation to 

address concerns that usage of 

administrative leave had sometimes 

exceeded reasonable amounts and 

resulted in significant costs to the 

Government. Congress wanted agencies 

to (1) use administrative leave sparingly 

and reasonably, (2) consider alternatives 

to use of administrative leave when 

employees are under investigation, and 

(3) act expeditiously to conclude 

investigations and either return the 

employee to duty or take an appropriate 

personnel action. Congress also wanted 

agencies to keep accurate records 

regarding the use of these leave 

categories. 

This rulemaking is necessary for OPM 

to meet its obligations under the 

Administrative Leave Act to carry out 

sections 6329a and 6329b. OPM is 

therefore prescribing acceptable uses 

and proper recording of administrative 

leave, as well as regulations regarding 

acceptable uses, proper recording, 

reporting, baseline factors agencies must 

consider, and procedures for the 

approval and the extensions of 

investigative leave and notice leave. 

Without this rulemaking, OPM would 

not meet its statutory obligations under 

the Act and agencies would lack the 

necessary guidance regarding how to 

meet their own obligations under the 

Act. 

In addition to the statutory charge, it 

is OPM’s policy that paid leave should 

be effectively managed and it believes 

this final rule accomplishes this while 

addressing Congress’ concerns that led 

to the enactment of the Administrative 

Leave Act. OPM also does this while 

preserving agency discretion to tailor 

policies to their workforces and without 

unduly burdening those Federal 

agencies. 

B. Consideration of Regulatory 

Alternatives 

As explained in the previous section, 

the changes reflected in OPM’s 

regulations for administrative leave, 

investigative leave, and notice leave are 

required by statute and reflect OPM’s 

policies regarding paid leave. OPM did 

not have the option to not regulate—the 

Act requires OPM to prescribe 

regulations to carry out sections 6329a 

and 6329b and guide agencies regarding 

these new leave categories. We have 

prescribed regulations that accomplish 

this while striving to limit the burden 

placed on agencies. 

This final rule establishes 

requirements regarding (1) the 

acceptable uses of administrative, 

investigative, and notice leave, (2) the 

proper recording of administrative, 

investigative, and notice leave, (3) 

baseline factors that an agency must 

consider when making a determination 

that investigative or notice leave should 

be used because the continued presence 

of an employee in the workplace may 

pose a threat to the employee or others, 

result in the destruction of evidence 

relevant to an investigation, result in 

loss of or damage to Government 

property, or otherwise jeopardize 

legitimate Government interests, and (4) 

procedures and criteria for the approval 

of an extension of an investigative leave 

period. Additionally, the rulemaking 

provides the procedure for reassessing 

an employee’s return to duty, at the 

discretion of the agency. The regulations 

also set forth reporting requirements as 

an additional agency responsibility. 

Regarding administrative leave under 

section 6329a, OPM chose to prescribe 

regulations at subpart N that track 

policies and procedures familiar to 

agencies rather than impose novel 

factors and criteria. OPM considered the 

possibility of identifying specific 

situations in which use of 

administrative leave would be 

prohibited even when use of 

administrative leave in those situations 

would be allowed based on the general 

principles in the regulations. 

Ultimately, we determined that it was 

generally not practical or desirable to 

prescribe a long list of specific 

prohibited uses. Thus, this final rule 

preserves broad discretion under a set of 

guiding principles under which agency 

heads have operated for many years, 

which allows them to consider all facts 

and circumstances of any given 

situation rather than applying inflexible 

requirements. We have added a list of 

decision factors in § 630.1403(a)(6) to 

help agencies in making policy and 

approval decisions regarding 

administrative leave. 

Regarding investigative leave and 

notice leave under section 6329b, the 

focus of the 2014 GAO report and of 

Congress when it enacted the 

Administrative Leave Act, OPM chose 

to prescribe regulations that track the 

requirements in the statutory language 

in section 6329b. Unlike administrative 

leave in section 6329a, Congress 

outlined detailed requirements on the 

appropriate use of investigative leave 

and notice leave in section 6329b. Since 

Congress provided these comprehensive 

requirements, OPM has concluded 

additional factors or criteria are not 

necessary regarding the use of 

investigative and notice leave. To the 

extent any remaining matters are not 

addressed in this final rule, OPM 

believes it is appropriate for each 

agency to exercise their discretion to 

develop policies appropriate for their 

unique missions and requirements. 

Finally, commenters suggested several 

revisions and alternatives to the 

proposed regulations. While addressing 

them in this final rule, OPM determined 

that some of them were beyond the 

scope of this rulemaking or not within 

OPM’s rulemaking authority, whereas 

others were within the scope and OPM’s 

rulemaking authority. The reasons OPM 

decided to adopt or not adopt changes 

proposed by commenters to specific 

regulatory provisions are explained 

above in the section on ‘‘Regulatory 

Amendments and Related Comments.’’ 

C. Impact 

This rulemaking conforms OPM’s 

regulations to the statutory requirements 

for administrative leave, investigative 

leave, and notice leave, and prescribes 

the proper uses of these leave categories 

and the recordkeeping and reporting 

requirements with which agencies must 

comply across the Federal Government. 

With respect to administrative leave 

under section 6329a, the issued 

regulations are consistent with 

longstanding policies and practices. The 

general principles in § 630.1403(a) are 

the same general principles found in 

longstanding OPM guidance on 

administrative leave.57 We do not 

expect that overall agency use of 

administrative leave will change in 

ways unfamiliar to agencies. In some 

cases, since the principles now have a 

regulatory basis and usage reporting will 

be required, agencies may act more 

prudently in approving some uses of 

administrative leave. The requirement 

for agencies to adopt formal policies 

(starting with the agency head) and to 

record and report on uses of 

administrative leave will impose new 

administrative burdens but will improve 

transparency and accountability. 

These regulations also outline the 

required determinations that an agency 

must conduct, in its discretion, to place 

an employee on investigative leave or 

notice leave, under section 6329b, and 

requirements for the duration of that 

leave. After consideration of the 


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58At the time of the GAO study, the catchall 

administrative leave category included leave that is 

now covered by the weather and safety leave 

authority. 

baseline factors set out at § 630.1503(e) 

the agency is required to determine that 

the continued presence of the employee 

in the workplace during an investigation 

of the employee or while the employee 

is in a notice period, as applicable, may 

pose a threat or otherwise jeopardize 

Government interests as enumerated in 

the regulations. Before using 

investigative leave or notice leave, an 

agency must consider and determine 

that the options described in the 

regulations are inappropriate. The 

options are: assignment of the employee 

to duties in which the employee no 

longer poses a threat, allowing the 

employee to voluntarily take leave or 

paid time off, carrying the employee in 

absent without leave status if the 

employee is absent from duty without 

approval; and, 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. We 

believe that agencies have the requisite 

knowledge, skills, and resources to 

make these assessments and 

determinations, which are similar to 

evaluations agencies currently must use 

in other contexts. For example, pursuant 

to § 752.404, agencies currently assess 

whether an employee should remain in 

a duty status, be allowed to use leave, 

or be placed in a paid, non-duty status 

during a notice period. OPM believes 

that assessments for placing an 

employee on investigative leave or 

notice leave and for any extensions of 

investigative leave will be minimally 

burdensome on agencies. 

This final rule also requires agencies 

to make the same type of assessments 

about an employee’s work status that 

they make now and, therefore, does not 

require significant investment in new 

tools or resources. This final rule 

provides that an employee may be 

returned to duty at any time if the 

agency reassesses its determination to 

place the employee on investigative 

leave or notice leave, or to require the 

employee to telework in lieu of placing 

the employee investigative leave. An 

employee on investigative leave or 

notice leave must also be prepared to 

report promptly to work. The 

regulations stipulate these decisions are 

at the discretion of the agency. Agencies 

make similar assessments now and, 

therefore, we do not view these 

regulations as requiring significant new 

tools or resources. 

Finally, this final rule will enable the 

Federal Government to track these leave 

categories more accurately. Agencies 

must keep separate records on these 

leave categories. Agencies and payroll 

service providers currently have 

systems for recording and tracking leave 

usage that will need to be updated to 

account for the new leave categories. 

This new, more reliable data will better 

inform any further efforts by Congress, 

OPM, or agencies to modify these leave 

requirements and policies. The ongoing 

burden should be minimal when this 

final rule is effective, and the 

procedures are adopted at each agency. 

The 2014 GAO report found various 

issues with the available data on use of 

administrative leave. In some cases, 

agencies were reporting holiday paid 

time off under the Administrative 

Leave-General category. GAO also 

identified instances where agencies 

incorrectly recorded duty time or 

another type of paid leave in the 

catchall administrative leave category. 

Based on available payroll data, after 

excluding holiday paid time off, GAO 

found that the average value of the 

administrative leave was less than 0.61 

percent of the total basic salary costs. 

That would equate to an average of 

about 1.6 days of leave per year per 

employee. Today 0.61 percent of total 

basic salary costs for all full-time and 

part-time Federal employees in the OPM 

Governmentwide database would be 

roughly $1.4 billion for one year, 

including the cost of weather and safety 

leave.58 Even in the absence of reliable 

payroll data regarding administrative 

leave, investigative leave, and notice 

leave, we believe it is reasonable to 

conclude that usage of these leave 

categories will change since the 

regulations detail their acceptable uses 

and proper reporting, limit the use of 

investigative leave, and prescribe and 

give effect to significant accountability 

and transparency measures built into 

the Administrative Leave Act, including 

written approvals by specified agency 

officials, recordkeeping requirements, 

reporting requirements, and GAO 

reviews. 

D. Costs 

For purposes of conducting a 

regulatory analysis, costs are measured 

against a no-action baseline—i.e., the 

new costs generated by a regulation 

compared to the absence of the 

regulation. In the absence of this 

regulation, agencies would continue 

granting and recording paid time off in 

the way the 2014 GAO report and 

Congress deemed in need of reform. The 

Administrative Leave Act provided 

specific statutory authority for types of 

leave that have been granted under 

other authorities for many years. The 

law and regulations will now require 

application of new administrative 

requirements and procedures, new 

recordkeeping and reporting 

requirements, and the drafting of new 

agency policy and procedures 

documents (including authority 

delegations) that implement the new 

requirements. 

Agencies will incur some 

administrative costs to implement the 

requirements of this final rule. The rule 

will affect the operations of 

approximately 120 Federal agencies, 

ranging from cabinet-level departments 

to small independent agencies. To 

comply with these regulatory changes, 

the affected agencies will need to 

update their policies, procedures, and 

data systems, including timekeeping 

systems within 270 days of the 

publication. For this cost analysis, the 

assumed average salary rate of Federal 

employees performing this work is the 

2024 rate for GS–14, step 5, from the 

Washington, DC, locality pay table 

($157,982 annual locality rate and 

$75.70 hourly locality rate). We assume 

that the total dollar value of labor, 

which includes wages, benefits, and 

overhead, is equal to 200 percent of the 

wage rate, resulting in an assumed labor 

cost of $151.40 per hour. We estimate 

that, in the first year following 

publication of the final rule, this will 

require an average of 160 hours of work 

by employees with an average hourly 

cost of $151.40. This would result in 

estimated costs in the first year of 

implementation of about $24,224 per 

agency, and about $2.9 million in total 

Governmentwide. In subsequent years, 

the administrative costs associated with 

this rule will be folded into agencies’ 

routine costs for leave administration. 

Because this rule creates three new 

leave categories, the total estimated 

costs of these leave categories, per year, 

provide information about the no-action 

baseline from which the costs of this 

rule can be compared. 

Before estimating the costs of 

administrative leave, investigative leave, 

and notice leave, it is important to note 

that OPM made several assumptions 

and considered certain limitations in 

these calculations. When administrative 

leave under subpart N is used for 

investigative purposes, the agency must 

exhaust the 10-workday limit before 

using investigative leave under the new 

subpart O. Therefore, for this cost 

analysis OPM assumes that the full 10 

workdays will be used. Moreover, 

because OPM’s regulations allow the 

consecutive use of administrative leave 

for investigative purposes, investigative 


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59This total includes weather and safety leave 

now governed by section 6329c and OPM 

regulations. 

60U.S. Office of Special Counsel, ‘‘Annual Report 

to Congress for Fiscal Year 2023,’’ p. 15, https://

www.osc.gov/Documents/Resources/Congressional

%20Matters/Annual%20Reports

%20to%20Congress/FY%202023

%20Annual%20Report%20to%20Congress.pdf. 

61 Id. 

leave, and notice leave, we assume use 

of all three leave categories leading up 

to the adverse actions in this cost 

estimate. We understand that there will 

be instances when an employee is 

placed on investigative leave and no 

adverse action results from the 

investigation. However, we think it is 

instructive to consider the potential cost 

of consecutive use of administrative, 

investigative, and notice leave. 

While OPM does not have reliable 

data that agencies have used 

administrative leave for every case that 

could result in an adverse action, we are 

assuming that agencies will use 

administrative leave for investigative 

purposes under subpart N and 

investigative leave under subpart O for 

all adverse actions taken in this cost 

analysis for the purpose of calculating 

the potential scope of expenses. OPM 

assumes that agencies will try to limit 

use of investigative leave to 30 

workdays, as envisioned by 

§ 630.1504(b). OPM understands that 

agencies may decide to use alternatives 

to investigative leave such as placing 

the employee on telework or a detail or 

relocating the employee temporarily to 

a different worksite. Also, we accept 

that there are other factors that could 

lead to shorter and longer periods of 

investigative leave. Employees may 

resign, retire, or transfer to another 

Federal agency after an investigation 

begins, which could shorten an 

investigation. Further, there may be 

delays in the investigative process, such 

as difficulty contacting witnesses, that 

lengthen an investigative period. 

As for notice leave, the estimates in 

this regulatory impact analysis are also 

difficult to quantify and based on some 

assumptions. OPM does not have data 

regarding the length of notice periods. 

We assume that agencies will use the 

full 30-calendar day advance notice 

period minimally required for 

appealable adverse actions taken under 

5 CFR part 752, subpart D. Also, if the 

agency proposes an employee’s removal 

or if the charged misconduct is 

egregious in nature, it is reasonable to 

assume that the agency will move 

expeditiously to bring the action to 

closure at the end of the 30-calendar day 

advance notice period. For nonappealable adverse actions, OPM 

assumes a one-calendar day advance 

notice period, as minimally required by 

5 CFR part 752, subpart B. Neither the 

Administrative Leave Act nor this final 

rule limit notice leave to adverse actions 

taken under the procedures of chapter 

75. Thus, we understand that an agency 

may take an adverse action under an 

authority that allows for a different 

advance notice period. We also accept 

that an agency policy or collective 

bargaining agreement may require a 

longer minimum notice period for nonappealable adverse actions. As noted for 

investigative leave, there are other 

factors that could impact the duration of 

notice leave. 

For the cost estimate of these three 

leave categories, as described in the 

previous section, OPM considered GAO 

data to estimate annual costs of $1.4 

billion.59 Even before this final rule, 

Federal employees used, and agencies 

put employees on, paid leave called 

‘‘administrative leave.’’ But this rule 

now gives effect to ‘‘administrative 

leave’’ under the Administrative Leave 

Act and other leave categories described 

herein. OPM believes it would be 

beneficial to also isolate the estimated 

costs of more specific categories of paid 

leave described in this final rule, 

namely, administrative leave for 

investigative purposes, investigative 

leave, and notice leave. OPM did this by 

looking at the average number of 

adverse actions over a recent 3-year 

period at one cabinet-level agency and 

at one agency in each of the large, 

medium, and small independent 

categories. OPM used average 2024 

salaries for the Washington, DC, locality 

pay area for multiple grade levels (GS– 

14, step 5; GS–11, step 5; and GS–7, step 

5) to estimate the dollar value of 

investigative and notice leave for fulltime General Schedule (GS) employees. 

We acknowledge that there are non-GS 

pay systems covered by title 5, U.S. 

Code, and that some employees 

subjected to investigative and notice 

leave may not have full-time work 

schedules. 

For a cabinet-level agency, OPM 

estimates an average of 1,490 adverse 

actions per year, at a cost of $24,011,261 

in administrative and investigative leave 

for 40 workdays and $4,933,262 in 

notice leave for 30 calendar days. For a 

large independent agency, we estimate 

an average of 452 adverse actions per 

year with $7,286,065 in administrative 

and investigative leave costs and 

$1,447,070 in notice leave costs. For a 

medium independent agency, OPM 

estimates an average of four adverse 

actions per year with $64,431 in 

administrative and investigative leave 

costs and $9,665 in notice leave costs. 

For a small independent agency, we 

estimate an average of one adverse 

action per year with $16,108 in 

administrative and investigative leave 

costs and $805 in notice leave costs. 

OPM estimates the annual 

Governmentwide cost for administrative 

leave for investigative purposes and 

investigative leave to be $31.4 million 

and for notice leave to be $6.4 million— 

a total of $37.8 million per year. As 

noted above, there may be wide 

variations from agency to agency in the 

duration of notice periods for nonappealable actions. 

This rule also provides that, pursuant 

to section 6329b(g), placement on 

investigative leave for 70 workdays or 

more is considered a ‘‘personnel action’’ 

in applying the prohibited personnel 

practices (PPP) provisions at section 

2302(b)(8)–(9). In its fiscal year 2023 

annual report to Congress, OSC reported 

that it received 3,101 PPP cases.60 Note 

that OSC also reported that the number 

of PPP complaints received in FY 2023 

reflected a reduction from pre-COVID– 

19 levels. OSC stated that it expects 

complaint levels to return to prepandemic levels, which was 

approximately an average of nearly 

4,000 new PPP complaints per year from 

FY2016 to FY2020. OPM anticipates 

that the addition of placement on 

investigative leave for 70 workdays or 

more as a personnel action will generate 

new PPP complaints. We have 

concluded that an estimate of a 1% 

increase over pre-pandemic PPP 

complaint levels is reasonable. That is, 

we estimate approximately 40 new PPP 

claims per year based on placement on 

investigative leave for 70 workdays or 

more. We expect that the majority of 

investigations will not require use of 70 

workdays or more of investigative leave, 

and of that limited number, only a 

minimal number of cases will result in 

a PPP complaint. The regulations at part 

630, subpart O, provide significant 

guardrails on the use of investigative 

leave such that agencies will be 

compelled to use alternatives to 

investigative leave or meet a high 

threshold for an extension of 

investigative leave beyond the initial 30 

days. OSC’s FY 2023 annual report 

stated that the average cost for an 

agency to resolve a PPP was $6,728.61

Given our estimate of 40 new PPP 

complaints, we estimate that the 

Governmentwide average increase is 

$269,120. 

Regarding the impact of this final rule 

on the estimated costs of the three leave 

categories, OPM cannot quantify such 

an impact with great specificity because 


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it will largely depend on the specific 

revisions and implementations that 

agencies will perform to meet the 

requirements of the Administrative 

Leave Act and this final rule, including 

those relating to granting administrative 

leave and placing employees into these 

leave statuses, as well as the number of 

individuals subject to administrative 

leave for investigative purposes (under 

section 6329a and subpart N of these 

regulations) and investigative leave and 

notice leave under (section 6329b and 

subpart O of these regulations). And 

while there are many variables that 

make these costs difficult to quantify, it 

is reasonable to conclude that the usage 

of administrative leave, investigative 

leave, and notice leave will change, for 

the reasons mentioned above regarding 

the impact of this final rule. 

E. Benefits 

This rulemaking promotes 

accountability and Governmentwide 

consistency and clarity in the use and 

recording of administrative leave, 

investigative leave, and notice leave. 

Although OPM has previously provided 

guidance on the proper use of 

administrative leave, agencies will now 

have the benefit of codified parameters 

for these new leave categories. The 

establishment of baseline factors that 

agencies must consider as well as 

procedures for the approval and the 

extensions of investigative leave will 

engender consistency in how agencies 

use and track such leave. These 

provisions will also help agencies, 

OPM, Congress, and other stakeholders 

monitor whether supervisors use these 

types of leave appropriately and 

sparingly. 

VI. Procedural Issues and Regulatory 

Review 

A. Severability 

OPM has determined that this rule 

implements and is fully consistent with 

governing law. However, in the event 

any provision of this rule, an 

amendment or revision made by this 

rule, or the application of such 

provision or amendment or revision to 

any person or circumstance, is held to 

be invalid or unenforceable by its terms, 

the remainder of this rule, the 

amendments or revisions made by this 

rule, and the application of the 

provisions of such rule to any person or 

circumstance shall not be affected and 

shall be construed so as to give them the 

maximum effect permitted by law. It is 

OPM’s intent that each and every 

provision of this regulation be severable 

from each other provision to the 

maximum extent allowed by law. 

For example, if a court were to 

invalidate any portions of this final rule 

imposing requirements on agencies 

before putting employees on 

investigative leave, the other portions of 

the rule—including the portions 

regarding notice leave—would 

independently remain workable and 

valuable. In implementing the 

provisions of the Administrative Leave 

Act, OPM will comply with all 

applicable legal requirements. 

B. Regulatory Review 

OPM has examined the impact of this 

rulemaking as required by Executive 

Orders 12866 (Sept. 30, 1993), as 

supplemented by Executive Order 

13563 (Jan. 18, 2011) and amended by 

Executive Order 14094 (Apr. 6, 2023), 

which direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public, health, and 

safety effects, distributive impacts, and 

equity). A regulatory impact analysis 

must be prepared for certain rules with 

effects of $200 million or more in any 

one year. This rulemaking does not 

reach that threshold but has otherwise 

been designated as a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, as amended by 

Executive Order 14094. 

C. Regulatory Flexibility Act 

The Acting Director of the Office of 

Personnel Management certifies that 

this rulemaking will not have a 

significant economic impact on a 

substantial number of small entities 

because the rule will apply only to 

Federal agencies and employees. 

D. Executive Order 13132, Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132 

(Aug. 10, 1999), it is determined that 

this final rule does not have sufficient 

federalism implications to warrant 

preparation of a Federalism Assessment. 

E. Executive Order 12988, Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988 (Feb. 7, 

1996). 

F. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule that would impose spending costs 

on State, local, or tribal governments in 

the aggregate, or on the private sector, 

in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

That threshold is currently 

approximately $183 million. This 

rulemaking will not result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, in excess of the 

threshold. Thus, no written assessment 

of unfunded mandates is required. 

G. Congressional Review Act 

OMB’s Office of Information and 

Regulatory Affairs has determined this 

rule does not satisfy the criteria listed in 

5 U.S.C. 804(2). 

H. Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35) 

This regulatory action will not impose 

any reporting or recordkeeping 

requirements under the Paperwork 

Reduction Act. 

List of Subjects in 5 CFR Parts 630 and 

752 

Government employees. 

Office of Personnel Management. 

Stephen Hickman, 

Federal Register Liaison. 

For the reasons stated in the 

preamble, OPM amends 5 CFR parts 630 

and 752 as follows: 

PART 630—ABSENCE AND LEAVE 

■ 1. The authority citation for part 630 

is revised to read as follows: 

Authority: Subparts A through E issued 

under 5 U.S.C. 6133(a) (read with 5 U.S.C. 

6129), 6303(e) and (f), 6304(d)(2), 6306(b), 

6308(a) and 6311; subpart F issued under 5 

U.S.C. 6305(a) and 6311 and E.O. 11228, 30 

FR 7739, 3 CFR, 1974 Comp., p. 163; subpart 

G issued under 5 U.S.C. 6305(c) and 6311; 

subpart H issued under 5 U.S.C. 6133(a) (read 

with 5 U.S.C. 6129) and 6326(b); subpart I 

issued under 5 U.S.C. 6332, 6334(c), 

6336(a)(1) and (d), and 6340; subpart J issued 

under 5 U.S.C. 6340, 6363, 6365(d), 6367(e), 

6373(a); subpart K issued under 5 U.S.C. 

6391(g); subpart L issued under 5 U.S.C. 

6383(f) and 6387; subpart M issued under 

Sec. 2(d), Pub. L. 114–75, 129 Stat. 641 (5 

U.S.C. 6329 note); subpart N issued under 5 

U.S.C. 6329a(c); subpart O issued under 5 

U.S.C. 6329b(h); and subpart P issued under 

5 U.S.C. 6329c(d). 


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Subpart B—Definitions and General 

Provisions for Annual and Sick Leave 

§ 630.206 [Amended] 

■ 2. In § 630.206, remove the second 

sentence in paragraph (a). 

■ 3. Add subpart N to read as follows: 

Subpart N—Administrative Leave 

Sec. 

630.1401 Purpose and applicability. 

630.1402 Definitions. 

630.1403 Principles and prohibitions. 

630.1404 Calendar year limitation. 

630.1405 Administration of administrative 

leave. 

630.1406 Records and reporting. 

§ 630.1401 Purpose and applicability. 

(a) This subpart implements 5 U.S.C. 

6329a, which allows an agency to 

provide a separate type of paid leave, on 

a limited basis, for general purposes not 

covered by other types of leave 

authorized by other provisions of law. 

Section 6329a(c) authorizes OPM to 

prescribe regulations to carry out the 

statutory provisions on administrative 

leave, including regulations on the 

appropriate uses and the proper 

recording of this leave. 

(b) This subpart applies to an 

employee as defined in 5 U.S.C. 2105 

who is employed in an agency, but does 

not apply to an intermittent employee 

who, by definition, does not have an 

established regular tour of duty during 

the administrative workweek. 

(c) As provided in 5 U.S.C. 6329a(d), 

this subpart applies to employees 

described in subsection (b) of 38 U.S.C. 

7421, notwithstanding subsection (a) of 

that section. 

§ 630.1402 Definitions. 

In this subpart: 

Administrative leave means paid 

leave authorized at the discretion of an 

agency under 5 U.S.C. 6329a (and not 

authorized under any other provision of 

statute or Presidential directive) to cover 

periods within an employee’s tour of 

duty established for leave purposes 

when the employee is not engaged in 

activities that qualify as official hours of 

work, which is provided without loss of 

or reduction in— 

(1) Pay; 

(2) Leave to which an employee is 

otherwise entitled under law; or 

(3) Credit for time or service. 

Agency means an Executive agency as 

defined in 5 U.S.C. 105, excluding the 

Government Accountability Office. 

When the term ‘‘agency’’ is used in the 

context of an agency making 

determinations or taking actions, it 

means the agency head or management 

officials who are authorized (including 

by delegation, where applicable) to 

make the given determination or take 

the given action. 

Employee means an individual who is 

covered by this subpart, as described in 

§ 630.1401(b) and (c). 

Head of the agency means the head of 

an agency or a designated representative 

of such agency head who is an agency 

headquarters-level official reporting 

directly to the agency head or a deputy 

agency head and who is the sole such 

representative for the entire agency. 

OPM means the Office of Personnel 

Management. 

Presidential directive means an 

Executive order, Presidential 

memorandum, or official written 

statement by the President in which the 

President specifically directs agency 

heads to provide employees with a paid 

excused absence under a specified set of 

conditions. This excludes a Presidential 

action that merely encourages agency 

heads to use an agency head authority 

(e.g., section 6329a) to grant a paid 

excused absence under specified 

conditions or that leaves the amount of 

excused absence to be granted in 

specified conditions subject to agency 

head discretion. 

§ 630.1403 Principles and prohibitions. 

(a) General principles. In granting 

administrative leave, an agency must 

adhere to the following general 

principles: 

(1) Administrative leave may be 

granted (subject to the requirements of 

this section) only when— 

(i) The absence is directly related to 

the agency’s mission; 

(ii) The absence is officially 

sponsored or sanctioned by the agency; 

(iii) The absence will clearly enhance 

the professional development or skills 

of the employee in the employee’s 

current position; or 

(iv) The absence is in the interest of 

the agency or of the Government as a 

whole. 

(2) Administrative leave is not an 

entitlement, but is an authority, 

entrusted to the discretion of the 

agency, that should be used sparingly, 

consistent with the sense of Congress 

expressed in section 1138(b)(2) of Public 

Law 114–328. 

(3) Administrative leave is 

appropriately used for brief or short 

periods of time—usually for not more 

than 1 workday. An incidence of 

administrative leave lasting more than 1 

workday may be approved when 

determined to be appropriate by an 

agency. 

(4) An agency must retain the 

discretion to grant or not grant 

administrative leave in any 

circumstance based on agency 

judgments regarding mission needs. 

Generally, administrative leave should 

be granted on an ad hoc, event-specific, 

or time-limited basis. If an agency 

determines that it will generally grant 

administrative leave under a specific set 

of circumstances that may recur (e.g., 

blood donations, voting-related 

activities), that determination must 

allow the agency to not grant 

administrative leave due to mission 

needs. 

(5) A determination that an absence 

satisfies one of the conditions in 

paragraph (a)(1) of this section must 

be— 

(i) Permitted under written agency 

policies (established by the head of the 

agency or by other agency officials 

under a specific delegation of authority); 

or 

(ii) Reviewed and approved by an 

official of the agency who is (or is 

acting) at a higher level than the official 

making the determination, if the specific 

type of use and amount of leave for that 

use has not been authorized under 

established written policy as described 

in paragraph (i) of this paragraph (a)(5). 

(6) In developing agency policies 

regarding the appropriate uses and 

corresponding amounts of 

administrative leave and in approving 

specific incidents of administrative 

leave where the particular use was not 

specifically authorized in agency 

policies, authorized agency officials 

must consider the following factors: 

(i) The regulations in this subpart; 

(ii) The effect on productivity and the 

agency’s ability to meet mission needs; 

(iii) Current Administration policies 

that identify Governmentwide interests; 

(iv) The strength of the justification 

for using appropriated funds for the 

administrative leave in question; 

(v) Equitable treatment of similarly 

situated employees; and 

(vi) The degree of delegation that is 

appropriate for various uses of 

administrative leave. (b) Specific 

prohibited uses. An agency may not 

grant administrative leave— 

(1) To mark the memory of a deceased 

former Federal official (see also 5 U.S.C. 

6105); or 

(2) As a reward to recognize the 

performance or contributions of an 

employee or group of employees (i.e., in 

lieu of a cash award or a time-off 

award). 

§ 630.1404 Calendar year limitation. 

(a) General. Under 5 U.S.C. 6329a(b), 

during any calendar year, an agency 

may place an employee on 

administrative leave for no more than 10 

workdays. In this context, the term 


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‘‘place’’ refers to a management-initiated 

action to put an employee in 

administrative leave status, with or 

without the employee’s consent, for the 

purpose of conducting an investigation 

(as defined in § 630.1502). The 10- 

workday annual limit does not apply to 

administrative leave for other purposes. 

After an employee has been placed on 

administrative leave in connection with 

such an investigation for 10 workdays, 

the agency may place the employee on 

investigative leave under subpart O of 

this part, if necessary (see 5 U.S.C. 

6329b(b)(3)(A) and § 630.1504(a)(1)). 

This calendar year limitation applies 

separately to each agency that may 

employ an employee during the year. 

Use by different agencies is not 

aggregated. 

(b) Conversion to a limitation on 

hours. This 10-workday calendar year 

limitation is converted to an aggregate 

limit on hours, taking into account the 

different workdays that can apply to 

employees under different work 

schedules, as follows: 

(1) For a full-time employee 

(including an employee on a regular 40- 

hour basic workweek or a flexible or 

compressed work schedule under 5 

U.S.C. chapter 61, subchapter II, but 

excluding an employee on an 

uncommon tour of duty), the calendar 

year limitation is 80 hours; 

(2) For a full-time employee with an 

uncommon tour of duty under 

§ 630.210, the calendar year limitation is 

equal to the number of hours in the 

biweekly uncommon tour of duty (or the 

average biweekly hours for uncommon 

tours for which the biweekly hours vary 

over an established cycle); 

(3) For a part-time employee, the 

calendar year limit is prorated based on 

the number of hours in the officially 

scheduled part-time tour of duty 

established for purposes of charging 

leave when absent (e.g., for a part-time 

employee who has an officially 

scheduled half-time tour of 40 hours in 

a biweekly pay period, the calendar year 

limitation is 40 hours, which is half of 

the 80-hour limitation for full-time 

employees); 

(4) For an employee who has more 

than one type of work schedule in effect 

during different parts of a calendar year, 

the calendar year limit on hours of 

administrative leave must be applied 

by— 

(i) Converting hours of administrative 

leave used under a part-time schedule 

by multiplying such hours by the ratio 

of 80 divided by the number of hours in 

the officially scheduled biweekly parttime tour of duty established for 

purposes of charging leave when absent; 

(ii) Converting hours of administrative 

leave used under a biweekly uncommon 

tour of duty under § 630.210 (or the 

average biweekly hours for uncommon 

tours for which the biweekly hours vary 

over an established cycle) by 

multiplying such hours by the ratio of 

80 divided by the number of hours in 

the uncommon tour of duty; 

(iii) Summing the hours of 

administrative leave used for each 

period of time under a different type of 

work schedule, using actual hours for 

full-time tours and converted hours for 

part-time and uncommon tours, as 

determined under paragraphs (b)(4)(i) 

and (ii) of this section; and 

(iv) Applying the sum derived under 

paragraph (b)(4)(iii) of this section 

against an 80-hour standard for 

purposes of the 10-workday limit. 

§ 630.1405 Administration of 

administrative leave. 

(a) An agency must use the same 

minimum charge increments for 

administrative leave as it does for 

annual and sick leave under § 630.206. 

(b) Employees may be granted 

administrative leave only for hours 

within the tour of duty established for 

purposes of charging annual and sick 

leave when absent. For full-time 

employees, that tour is the 40-hour basic 

workweek as defined in 5 CFR 610.102, 

the basic work requirement established 

for employees on a flexible or 

compressed work schedule as defined in 

5 U.S.C. 6121(3), or an uncommon tour 

of duty under § 630.210. 

(c) Agencies authorize, and may 

require, the use of administrative leave 

by an employee or a category of 

employees. Employees do not have an 

entitlement to receive administrative 

leave, nor do they have a right to refuse 

administrative leave when the agency 

requires its use. 

§ 630.1406 Records and reporting. 

(a) Record of usage of administrative 

leave. An agency must maintain an 

accurate record of an employee’s usage 

of administrative leave by recording 

leave in one of the following 

subcategories, as applicable in the case 

at hand: 

(1) Administrative leave used for the 

purposes of an investigation (as 

described in § 630.1404(a)); or 

(2) Administrative leave used for all 

other purposes. 

(b) Minimum retention period. An 

agency must retain the records 

described in paragraph (a) of this 

section for a minimum of 6 years from 

the date the leave was used. 

(c) Reporting. (1) In agency data 

systems (including timekeeping 

systems) and in data reports submitted 

to OPM, an agency must record 

administrative leave under section 

6329a and this subpart as categories of 

leave separate from other types of leave. 

Leave under section 6329a and this 

subpart must be recorded as either 

administrative leave used for the 

purposes of an investigation (as 

described in § 630.1404(a)) or 

administrative leave used for all other 

purposes, as applicable. 

(2) Agencies must provide 

information to the Government 

Accountability Office as that office is 

required to submit reports to specified 

Congressional committees under section 

1138(d)(2) of Public Law 114–328 on a 

5-year cycle. 

■ 4. Add subpart O to read as follows: 

Subpart O—Investigative Leave and 

Notice Leave 

Sec. 

630.1501 Purpose and applicability. 

630.1502 Definitions. 

630.1503 Authority and requirements for 

investigative leave and notice leave. 

630.1504 Administration of investigative 

leave. 

630.1505 Administration of notice leave. 

630.1506 Records and reporting. 

§ 630.1501 Purpose and applicability. 

(a) This subpart implements 5 U.S.C. 

6329b, which allows an agency to 

provide separate types of paid leave for 

employees who are the subject of an 

investigation or in a notice period. OPM 

has authority to prescribe implementing 

regulations under 5 U.S.C. 6329b(h)(1). 

(b) This subpart applies to an 

employee as defined in 5 U.S.C. 2105 

who is employed in an agency, 

excluding— 

(1) An Inspector General; or 

(2) An intermittent employee who, by 

definition, does not have an established 

regular tour of duty during the 

administrative workweek. 

(c) As provided in 5 U.S.C. 6329b(i), 

this subpart applies to employees 

described in subsection (b) of 38 U.S.C. 

7421, notwithstanding subsection (a) of 

that section. 

§ 630.1502 Definitions. 

In this subpart: 

Agency means an Executive agency as 

defined in 5 U.S.C.105, excluding the 

Government Accountability Office. 

When the term ‘‘agency’’ is used in the 

context of an agency making 

determinations or taking actions, it 

means the agency head or management 

officials who are authorized (including 

by delegation) to make the given 

determination or take the given action. 

Chief Human Capital Officer or CHCO 

means the Chief Human Capital Officer 


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of an agency designated or appointed 

under 5 U.S.C 1401, or the equivalent. 

Committee of jurisdiction means, with 

respect to an agency, each committee of 

the Senate or House of Representatives 

with jurisdiction over the agency. 

Employee means an individual who is 

covered by this subpart, as described in 

§ 630.1501(b) and (c). 

Investigation means an inquiry by an 

investigative entity regarding an 

employee involving such matters as: (1) 

an employee’s alleged misconduct that 

could result in an adverse action as 

described in 5 CFR part 752 or similar 

authority or other matters that could 

lead to outcomes adverse to the 

employee; and (2) an employee’s 

compliance with or adherence to 

security requirements. An investigation 

includes: 

(1) An inquiry by an investigative 

entity regarding an employee involving 

security concerns, including whether 

the employee should retain eligibility to 

hold a position that is national security 

sensitive under E.O. 13467, as amended, 

and standards issued by the Office of 

the Director of National Intelligence 

(ODNI) regarding eligibility for access to 

classified information under E.O. 12968, 

as amended, and standards issued by 

ODNI; or eligibility for logical or 

physical access to agency facilities and 

systems under the standards established 

by Homeland Security Presidential 

Directive (HSPD) 12 and guidance 

issued pursuant to that directive; 

(2) The period of time during which 

an appeal of a security clearance 

suspension or revocation is pending; 

and 

(3) Preparation of an investigative 

report and recommendation(s) related to 

the subject of the investigation. 

Investigative entity means— 

(1) An internal investigative unit of an 

agency granting investigative leave 

under this subpart, which may be 

composed of one or more persons, such 

as supervisors, managers, human 

resources practitioners, personnel 

security office staff, workplace violence 

prevention team members, or other 

agency representatives; 

(2) The Office of Inspector General of 

an agency granting investigative leave 

under this subpart; 

(3) The Attorney General; or 

(4) The Office of Special Counsel. 

Investigative leave means leave in 

which an employee who is the subject 

of an investigation is placed, as 

authorized under 5 U.S.C. 6329b (and 

not authorized under any other 

provision of law), and which is 

provided without loss of or reduction 

in— 

(1) Pay; 

(2) Leave to which an employee is 

otherwise entitled under law; or 

(3) Credit for time or service. 

Notice leave means leave in which an 

employee who is in a notice period is 

placed, as authorized under 5 U.S.C. 

6329b (and not authorized under any 

other provision of law), and which is 

provided without loss of or reduction 

in— 

(1) Pay; 

(2) Leave to which an employee is 

otherwise entitled under law; or 

(3) Credit for time or service. 

Notice period means a period 

beginning on the date on which an 

employee is provided notice, as 

required under law, of a proposed 

adverse action against the employee and 

ending— 

(1) On the effective date of the adverse 

action; or 

(2) On the date on which the agency 

notifies the employee that no adverse 

action will be taken. 

OPM means the Office of Personnel 

Management. 

Participating in a telework program 

means an employee is eligible to 

telework and has an established 

arrangement with the employee’s 

agency under which the employee is 

approved to participate in the agency 

telework program, including on a 

routine or situational basis. Such an 

employee who teleworks on a 

situational basis is considered to be 

continuously participating in a telework 

program even if there are extended 

periods during which the employee 

does not perform telework. 

Telework site means a location where 

an employee is authorized to perform 

telework, as described in 5 U.S.C. 

chapter 65, such as an employee’s 

home. 

§ 630.1503 Authority and requirements for 

investigative leave and notice leave. 

(a) Authority. An agency may, in 

accordance with paragraph (b) of this 

section, and in its discretion, place an 

employee on— 

(1) Investigative leave, if the employee 

is the subject of an investigation; or 

(2) Notice leave— 

(i) If the employee is in a notice 

period; or 

(ii) Following a placement on 

investigative leave if, not later than the 

day after the last day of the period of 

investigative leave— 

(A) The agency proposes or initiates 

an adverse action against the employee; 

and 

(B) The agency determines that the 

employee continues to meet one or more 

of the criteria described in paragraph 

(b)(1) of this section. 

(b) Required determinations. An 

agency may place an employee on 

investigative leave or notice leave only 

if the agency has made a written 

determination documenting that the 

agency has— 

(1) Determined, after consideration of 

the baseline factors specified in 

paragraph (e) of this section, that the 

continued presence of the employee in 

the workplace during an investigation of 

the employee or while the employee is 

in a notice period, as applicable, may— 

(i) Pose a threat to the employee or 

others; 

(ii) Result in the destruction of 

evidence relevant to an investigation; 

(iii) Result in loss of or damage to 

Government property; or 

(iv) Otherwise jeopardize legitimate 

Government interests; and 

(2) Considered the following options 

(or a combination thereof): 

(i) Keeping the employee in a duty 

status by assigning the employee to 

duties in which the employee no longer 

poses a threat, as described in 

paragraphs (b)(1)(i) through (iv) of this 

section; 

(ii) Allowing the employee to 

voluntarily take leave (paid or unpaid) 

or paid time off, as appropriate under 

the rules governing each category of 

leave or paid time off; 

(iii) Carrying the employee in absent 

without leave status, if the employee is 

absent from duty without approval; and 

(iv) For an employee subject to a 

notice period, curtailing the notice 

period if there is reasonable cause to 

believe the employee has committed a 

crime for which a sentence of 

imprisonment may be imposed, 

consistent with 5 CFR 752.404(d)(1); 

and 

(3) Determined that none of the 

options under paragraph (b)(2) of this 

section is appropriate. 

(c) Telework alternative for 

investigative leave. (1) If an agency 

would otherwise place an employee on 

investigative leave, the agency may 

require the employee to perform, at a 

telework site, duties similar to the 

duties that the employee normally 

performs if— 

(i) The agency determines that such a 

requirement, at a telework site, would 

not pose a threat, as described in 

paragraphs (b)(1)(i) through (iv) of this 

section; 

(ii) The employee is eligible to 

telework; as set forth in paragraph (c)(2); 

(iii) The employee has been 

participating in a telework program 

under the agency telework policy during 

some portion of the 30-day period 

immediately preceding the 


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commencement of investigative leave 

(or the commencement of required 

telework in lieu of such leave under 

paragraph (c) of this section, if earlier); 

and 

(iv) The agency determines that 

teleworking would be appropriate. 

(2) For purposes of paragraph (c)(1) of 

this section, an employee is considered 

to be eligible to telework if the agency 

determines the employee is eligible to 

telework under agency telework policies 

described in 5 U.S.C. 6502(a) and is not 

barred from teleworking under the 

eligibility conditions described in 5 

U.S.C. 6502(b)(4). Any telework 

agreement established under 5 U.S.C. 

6502(b)(2) must be superseded as 

necessary to comply with an agency’s 

action to require telework under 5 

U.S.C. 6502(c) and paragraph (c)(1) of 

this section. 

(3) If an employee who is required to 

telework under paragraph (c)(1) of this 

section is absent from telework duty 

without the required approval, an 

agency may place the employee in 

absent without leave status, consistent 

with agency policies. 

(4) The agency decision to require 

telework under this paragraph (c), as 

well as the supporting agency 

determinations and any conditions or 

requirements governing the required 

telework (e.g., the telework assignment’s 

duration or location), are to be put into 

effect at the agency’s discretion, subject 

to the requirements of this paragraph 

(c). 

(5) If an agency requires telework in 

lieu of placement on investigative leave, 

the agency must provide the employee 

with a written explanation regarding the 

required telework in lieu of placement 

on investigative leave. The written 

explanation must include the following: 

(i) The agency’s determination under 

paragraph (c)(1) of this section; and, 

(ii) A description of the limitations of 

the required telework, including the 

expected duration of telework. 

(d) Reassessment and return to duty. 

(1) An employee may be returned to 

duty at any time if the agency reassesses 

its determination to place the employee 

on investigative leave or notice leave. 

An employee on investigative leave or 

notice leave must be prepared to report 

promptly to work as provided in 

paragraph (d)(4) of this section. These 

decisions are at the discretion of the 

agency. 

(2) For an employee on investigative 

leave, an agency may reassess its 

determination that the employee must 

be removed from the workplace based 

on the criteria in paragraph (b)(1) of this 

section and may reassess its 

determination that the options in 

paragraph (b)(2) of this section are not 

appropriate. An agency may reassess its 

previous determination to require or not 

require telework under paragraph (c) of 

this section. These decisions are at the 

discretion of the agency. 

(3) For an employee on notice leave, 

an agency may reassess its 

determination that the employee must 

be removed from the regular worksite 

based on the criteria in paragraph (b)(1) 

of this section and may reassess its 

determination that the options in 

paragraph (b)(2) of this section are not 

appropriate. These decisions are at the 

discretion of the agency. 

(4) When an employee is placed on 

investigative leave or notice leave, the 

employee must be available to report 

promptly at a time during the 

employee’s regularly scheduled tour of 

duty and to an approved duty location, 

if directed by the employee’s agency. 

Any failure to so report may result in 

the employee being recorded as absent 

without leave, which can be the basis 

for disciplinary action. An employee 

who anticipates being unavailable to 

report promptly must request leave or 

paid time off in advance, as provided 

under paragraph (b)(2)(ii) of this section, 

to avoid being recorded as absent 

without leave. 

(e) Baseline factors. In making a 

determination regarding the criteria 

listed under paragraph (b)(1) of this 

section, an agency must consider the 

following baseline factors: 

(1) The nature and severity of the 

employee’s exhibited or alleged 

behavior; 

(2) The nature of the agency’s or 

employee’s work and the ability of the 

agency to accomplish its mission; and 

(3) Other impacts of the employee’s 

continued presence in the workplace 

detrimental to legitimate Government 

interests, including whether the 

employee poses an unacceptable risk 

to— 

(i) The life, safety, or health of 

employees, contractors, vendors or 

visitors to a Federal facility; 

(ii) The Government’s physical assets 

or information systems; 

(iii) Personal property; 

(iv) Records, including classified, 

privileged, proprietary, financial or 

medical records; or 

(v) The privacy of the individuals 

whose data the Government holds in its 

systems. 

(f) Minimum charge. An agency must 

use the same minimum charge 

increments for investigative leave and 

notice leave as it does for annual and 

sick leave under § 630.206. 

(g) Tour of duty. Employees may be 

granted investigative leave or notice 

leave only for hours within the tour of 

duty established for purposes of 

charging annual and sick leave when 

absent. For full-time employees, that 

tour is the 40-hour basic workweek as 

defined in 5 CFR 610.102, the basic 

work requirement established for 

employees on a flexible or compressed 

work schedule as defined in 5 U.S.C. 

6121(3), or an uncommon tour of duty 

under § 630.210. 

§ 630.1504 Administration of investigative 

leave. 

(a) Commencement. An initial period 

of investigative leave may not be 

commenced until— 

(1) The employee’s use of 

administrative leave for investigative 

purposes under subpart N of this part 

has reached the 10-workday calendar 

year limitation described in 5 U.S.C. 

6329a(b)(1) and § 630.1404, as converted 

to hours under § 630.1404(b); and 

(2) The agency determines that further 

investigation of the employee is 

necessary. 

(b) Duration. The agency may place 

the employee on investigative leave for 

an initial period of not more than 30 

workdays per investigation. An 

employee may be placed on 

investigative leave intermittently—that 

is, a period of investigative leave may be 

interrupted by— 

(1) On-duty service performed under 

§ 630.1503(b)(2)(i) or (c); 

(2) Leave or paid time off in lieu of 

such service under § 630.1503(b)(2)(ii); 

or 

(3) Absence without leave under 

§ 630.1503(b)(2)(iii). 

(c) Written explanation of leave. If an 

agency places an employee on 

investigative leave, the agency must 

provide the employee with a written 

explanation regarding the placement of 

the employee on investigative leave. 

The written explanation must include— 

(1) A description of the limitations of 

the leave placement, including the 

duration of leave; 

(2) Notice that, at the conclusion of 

the period of investigative leave, the 

agency must take an action under 

paragraph (d) of this section; and 

(3) Notice that placement on 

investigative leave for 70 workdays or 

more is considered a ‘‘personnel action’’ 

for purposes of the Office of Special 

Counsel’s authority to act, in applying 

the prohibited personnel practices 

provisions at 5 U.S.C. 2302(b)(8)–(9) 

(see paragraph (i) of this section). 

(d) Agency action. Not later than the 

day after the last day of an initial or 

extended period of investigative leave, 

an agency must— 

(1) Return the employee to regular 

duty status; 


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102294 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

(2) Take one or more of the actions 

under § 630.1503(b)(2); 

(3) Propose or initiate an adverse 

action against the employee as provided 

under law; or 

(4) Extend the period of investigative 

leave if permitted under paragraphs (f) 

and (g) of this section. 

(e) Continued investigation. 

Investigation of an employee may 

continue after the expiration of the 

initial period of investigative leave 

under paragraph (b) of this section. 

Investigation of an employee may 

continue even if the employee is 

returned to regular duty status and is no 

longer on investigative leave. 

(f) Extension of investigative leave— 

(1) Increments. If an investigation is not 

concluded at the time the expiration of 

the initial period under paragraph (b) of 

this section has elapsed, an agency may 

extend the period of investigative leave 

using increments of up to 30 workdays 

for each extension when approved as 

described in paragraph (f)(3) of this 

section. The amount of investigative 

leave used under the final extension 

may be less than 30 workdays, as 

appropriate. 

(2) Maximum number of extensions. 

Except as provided in paragraph (g) of 

this section, the total period of extended 

investigative leave (i.e., in addition to 

the initial period of investigative leave) 

may not exceed 90 workdays (e.g., 3 

incremental extensions of 30 workdays). 

This 90-day limit applies to extensions 

of investigative leave associated with a 

single initial period of investigative 

leave. 

(3) Approval of extensions. (i) An 

incremental extension under paragraph 

(f)(1) of this section is permitted only if 

the agency makes a written 

determination reaffirming that the 

employee must be removed from the 

workplace based on the criteria in 

§ 630.1503(b)(1) and that the options in 

§ 630.1503(b)(2) are not appropriate. 

(ii) Except as provided by paragraph 

(f)(3)(iii) of this section, an incremental 

extension under paragraph (f)(1) of this 

section is permitted only if approved by 

the CHCO of an agency, or the designee 

of the CHCO, after consulting with the 

investigator responsible for conducting 

the investigation of the employee. 

(iii) In the case of an employee of an 

Office of Inspector General, an 

incremental extension under paragraph 

(f)(1) of this section is permitted only if 

approved (after consulting with the 

investigator responsible for conducting 

the investigation of the employee) by— 

(A) The Inspector General or the 

designee of the Inspector General, rather 

than the CHCO or the designee of the 

CHCO; or 

(B) An official of the agency 

designated by the head of the agency 

within which the Office of Inspector 

General is located, if the Inspector 

General requests the agency head make 

such a designation. 

(4) Designation guidance. In 

delegating authority to a designated 

official to approve an incremental 

extension as described in paragraph 

(f)(3) of this section, a CHCO must 

consider the designation guidance 

issued by the CHCO Council under 5 

U.S.C. 6329b(c)(3), except that, in the 

case of approvals for an employee of an 

Office of Inspector General, an Inspector 

General must consider the designation 

guidance issued by the Council of the 

Inspectors General on Integrity and 

Efficiency under 5 U.S.C. 6329b(c)(4)(B). 

(g) Further extension of investigative 

leave. An official authorized under 

paragraph (f)(3) of this section to 

approve an incremental extension under 

paragraph (f)(1) of this section may 

approve further incremental extensions 

of 30 workdays (i.e., each extension is 

individually approved for up to 30 

workdays) under this paragraph after an 

employee has reached the maximum 

number of extensions of investigative 

leave under paragraph (f)(2) of this 

section. However, an agency may 

further extend a period of investigative 

leave only if the agency makes a written 

determination reaffirming that the 

employee must be removed from the 

workplace based on the criteria in 

§ 630.1503(b)(1) and that the options in 

§ 630.1503(b)(2) are not appropriate. Not 

later than 5 business days after granting 

each further extension, the agency must 

submit (subject to § 630.1506(b)) to the 

Committee on Homeland Security and 

Governmental Affairs of the Senate and 

the Committee on Oversight and 

Accountability of the House of 

Representatives, along with any other 

committees of jurisdiction, a report 

containing— 

(1) The title, position, office or agency 

subcomponent, job series, pay grade, 

and salary of the employee; 

(2) A description of the duties of the 

employee; 

(3) The reason the employee was 

placed on investigative leave; 

(4) An explanation as to why the 

employee meets the criteria described in 

§ 630.1503(b)(1)(i) through (iv) and why 

the agency is not able to temporarily 

reassign the duties of the employee or 

detail the employee to another position 

within the agency; 

(5) In the case of an employee who 

was required to telework under 5 U.S.C. 

6502(c) at any time during the period of 

investigation prior to the further 

extension of investigative leave, the 

reasons that the agency required the 

employee to telework under that 

subsection and the duration of the 

teleworking requirement; 

(6) The status of the investigation of 

the employee; 

(7) A certification to the agency by an 

investigative entity stating that 

additional time is needed to complete 

the investigation of the employee and 

providing an estimate of the amount of 

time that is necessary to complete the 

investigation of the employee; and 

(8) In the case of a completed 

investigation of the employee, the 

results of the investigation and the 

reason that the employee remains on 

investigative leave. 

(h) Completed investigation. An 

agency may not further extend a period 

of investigative leave under paragraph 

(g) of this section on or after the date 

that is 30 calendar days after the 

completion of the investigation of the 

employee by an investigative entity. 

(i) Possible prohibited personnel 

action. For purposes of 5 U.S.C. chapter 

12, subchapter II, and section 1221, 

placement on investigative leave under 

this subpart for a period of 70 workdays 

or more shall be considered a personnel 

action for purposes of the Office of 

Special Counsel in applying the 

prohibited personnel practices 

provisions at 5 U.S.C. 2302(b)(8) or (9). 

(j) Conversion of workdays to hours. 

In applying this section, the limitations 

based on workdays (i.e., the 30-workday 

increments in paragraphs (b), (f), and (g) 

of this section and the 70-workday limit 

in paragraph (i) of this section) must be 

converted to hours, taking into account 

the different workdays that can apply to 

employees under different work 

schedules, as follows: 

(1) For a full-time employee 

(including an employee on a regular 40- 

hour basic workweek or a flexible or 

compressed work schedule under 5 

U.S.C. chapter 61, subchapter II, but 

excluding an employee on an 

uncommon tour of duty), the 30- 

workday increment is converted to 240 

hours and the 70-workday limit is 

converted to 560 hours. 

(2) For a full-time employee with an 

uncommon tour of duty under 

§ 630.210, the 30-workday increment is 

converted to three times the number of 

hours in the biweekly uncommon tour 

of duty (or the average biweekly hours 

for uncommon tours for which the 

biweekly hours vary over an established 

cycle), and the 70-workday limit is 

converted to a number of hours derived 

by multiplying the hours equivalent of 

30 workdays (for a given uncommon 

tour) times the ratio of 70 divided by 30. 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 102295 

(3) For a part-time employee, the 

calendar year limit is prorated based on 

the number of hours in the officially 

scheduled part-time tour of duty 

established for purposes of charging 

leave when absent (e.g., for a part-time 

employee who has an officially 

scheduled half-time tour of 40 hours in 

a biweekly pay period, the 30-workday 

increment is converted to 120 hours, 

which is half of 240 hours (the 30- 

workday increment for full-time 

employees)). 

(4) For an employee who has more 

than one type of work schedule while 

on investigative leave, the 30-workday 

and 70-workday limits must be applied 

by— 

(i) Converting hours of investigative 

leave used under a part-time schedule 

by multiplying such hours by the ratio 

of 80 divided by the number of hours in 

the officially scheduled biweekly parttime tour of duty established for 

purposes of charging leave when absent; 

(ii) Converting hours of investigative 

leave used under a biweekly uncommon 

tour of duty under § 630.210 (or the 

average biweekly hours for uncommon 

tours for which the biweekly hours vary 

over an established cycle) by 

multiplying such hours by the ratio of 

80 divided by the number of hours in 

the uncommon tour of duty; 

(iii) Summing the hours of 

investigative leave used for each period 

of time under a different type of work 

schedule, using actual hours for fulltime tours and converted hours for parttime and uncommon tours, as 

determined under paragraphs (j)(4)(i) 

and (ii) of this section; and 

(iv) Applying the sum derived under 

paragraph (j)(4)(iii) of this section 

against a 240-hour standard for 

purposes of the 30-workday limit and 

against a 560-hour standard for the 

purposes of the 70-workday limit. 

§ 630.1505 Administration of notice leave. 

(a) Commencement. Notice leave may 

commence only after an employee has 

received written notice of a proposed 

adverse action. There is no requirement 

that the employee exhaust 10 workdays 

of administrative leave under 5 U.S.C. 

6329a(b) and § 630.1404 before the 

employee may be placed on notice 

leave. 

(b) Duration. Placement of an 

employee on notice leave shall be for a 

period not longer than the duration of 

the notice period. 

(c) Written explanation of leave. If an 

agency places an employee on notice 

leave, the agency must provide the 

employee with a written explanation 

regarding the placement of the 

employee on notice leave. The written 

explanation must provide information 

on the employee’s notice period and 

include a statement that the notice leave 

will be provided only during the notice 

period. 

§ 630.1506 Records and reporting. 

(a) Record of placement on leave. An 

agency must maintain an accurate 

record of the placement of an employee 

on investigative leave or notice leave by 

the agency, including— 

(1) The reasons for initial 

authorization of the investigative leave 

or notice leave, including the alleged 

action(s) of the employee that required 

investigation or issuance of a notice of 

a proposed adverse action; 

(2) The basis for the determination 

made under § 630.1503(b)(1); 

(3) An explanation of why an action 

under § 630.1503(b)(2) was not 

appropriate; 

(4) The length of the period of 

investigative leave or notice leave; 

(5) The amount of salary paid to the 

employee during the period of leave; 

(6) The reasons for authorizing the 

leave, and if an extension of 

investigative leave was granted, the 

recommendation made by an 

investigator as part of the consultation 

required under § 630.1504(f)(3); 

(7) Whether the employee was 

required to telework under § 630.1503(c) 

during the period of the investigation, 

including the reasons for requiring or 

not requiring the employee to telework; 

(8) The action taken by the agency at 

the end of the period of leave, 

including, if applicable, the granting of 

any extension of a period of 

investigative leave under § 630.1504(f) 

or (g); and 

(9) Any additional information OPM 

may require. 

(b) Availability of records. (1) An 

agency must make a record kept under 

paragraph (a) of this section available 

upon request— 

(i) To any committee of jurisdiction; 

(ii) To OPM; 

(iii) To the Government 

Accountability Office; and 

(iv) As otherwise required by law. 

(2) Notwithstanding paragraph (b)(1) 

of this section and § 630.1504(g), the 

requirement that an agency make 

records and information on use of 

investigative leave or notice leave 

available to various entities is subject to 

applicable laws, Executive orders, and 

regulations governing the dissemination 

of sensitive information related to 

national security, foreign relations, or 

law enforcement matters (e.g., 50 U.S.C. 

3024(i), (j), and (m) and Executive 

Orders 12968 and 13526). 

(3) An agency must retain the records 

described in paragraph (a) of this 

section for a minimum of 6 years from 

the date the leave was used. 

(c) Reporting. 

(1) In agency data systems and in data 

reports submitted to OPM, an agency 

must record investigative leave and 

notice leave under 5 U.S.C. 6329b and 

this subpart as categories of leave 

separate from other types of leave. Leave 

under 5 U.S.C. 6329b and this subpart 

must be recorded as either investigative 

leave or notice leave, as applicable. 

(2) Agencies must provide 

information to the Government 

Accountability Office as that office is 

required to submit reports to specified 

Congressional committees under section 

1138(d)(2) of Public Law 114–328 on a 

5-year cycle. 

PART 752—ADVERSE ACTIONS 

■ 5. The authority citation for part 752 

is revised to read as follows: 

Authority: 5 U.S.C. 6329b, 7504, 7514, and 

7543; Sec. 1097, Pub. L. 115–91, 131 Stat. 

1621. 

Subpart D—Regulatory Requirements 

for Removal, Suspension for More 

Than 14 Days, Reduction in Grade or 

Pay, or Furlough for 30 Days or Less 

■ 6. Revise § 752.404(b)(3)(iv) to read as 

follows: 

§ 752.404 Procedures 

* * * * * 

(b) * * * 

(3) * * * 

(iv) Placing the employee in a notice 

leave status for a period not to exceed 

the duration of the notice period, 

provided that the criteria set forth in 

§ 630.1503(b) of this title are met. 

* * * * * 

Subpart F—Regulatory Requirements 

for Taking Adverse Action Under the 

Senior Executive Service 

■ 7. Revise § 752.604(b)(2)(iv) to read as 

follows: 

§ 752.604 Procedures 

* * * * * 

(b) * * * 

(2) * * * 

(iv) Placing the employee in a notice 

leave status for a period not to exceed 

the duration of the notice period, 

provided that the criteria set forth in 

§ 630.1503(b) of this title are met. 

* * * * * 

[FR Doc. 2024–29139 Filed 12–16–24; 8:45 am] 

BILLING CODE 6325–39–P 


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