5 U.S.C. § 6329a — Administrative leave

Page 822 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6329 § 6329. Disabled veteran leave (a) During the 12-month period beginning on the first day of employment, any employee who is a veteran with a service-connected disability rated at 30 percent or more is entitled to leave, without loss or reduction in pay, for purposes of undergoing medical treatment for such dis- ability for which sick leave could regularly be used. (b)(1) The leave credited to an employee under subsection (a) may not exceed 104 hours. (2) Any leave credited to an employee pursu- ant to subsection (a) that is not used during the 12-month period described in such subsection may not be carried over and shall be forfeited. (c)(1) In order to verify that leave credited to an employee pursuant to subsection (a) is used for treating a service-connected disability, such employee shall submit to the head of the em- ploying agency certification, in such form and manner as the Director of the Office of Per- sonnel Management may prescribe, that such employee used such leave for purposes of being furnished treatment for such disability by a health care provider. (2) In the case of an employee of an office of the legislative branch, the certification de- scribed in paragraph (1) shall be prescribed— (A) in the case of an employee of the House of Representatives, by the Committee on House Administration of the House of Rep- resentatives; (B) in the case of an employee of the Senate, by the Committee on Rules and Administra- tion of the Senate; or (C) in the case of an employee of any other office of the legislative branch, by the head of the office. (d) In this section— (1) the term ‘‘employee’’ has the meaning given such term in section 2105, and includes— (A) an officer or employee of the United States Postal Service or the Postal Regu- latory Commission; and (B) notwithstanding subsection (a) of sec- tion 7421 of title 38, an individual occupying a position listed in subsection (b) of such section; (2) the term ‘‘service-connected’’ has the meaning given such term in section 101(16) of title 38; and (3) the term ‘‘veteran’’ has the meaning given such term in section 101(2) of such title. (Added Pub. L. 114–75, § 2(a), Nov. 5, 2015, 129 Stat. 640; amended Pub. L. 115–238, § 2(a), Sept. 7, 2018, 132 Stat. 2450; Pub. L. 115–364, § 1(a), Dec. 21, 2018, 132 Stat. 5088.) Editorial Notes AMENDMENTS 2018—Subsec. (c). Pub. L. 115–364 designated existing provisions as par. (1) and added par. (2). Subsec. (d)(1). Pub. L. 115–238 amended par. (1) gen- erally. Prior to amendment, par. (1) read as follows: ‘‘the term ‘employee’ has the meaning given such term in section 2105, and includes an officer or employee of the United States Postal Service or of the Postal Regu- latory Commission;’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Pub. L. 115–238, § 2(b), Sept. 7, 2018, 132 Stat. 2450, pro- vided that: ‘‘With respect to a position listed in section 7421(b) of title 38, United States Code, the amendment made by subsection (a) [amending this section] shall apply to any individual appointed to such a position on or after the date of enactment of this Act [Sept. 7, 2018].’’ EFFECTIVE DATE Pub. L. 114–75, § 2(c), Nov. 5, 2015, 129 Stat. 641, pro- vided that: ‘‘The amendments made by subsection (a) [enacting this section] shall apply with respect to any employee (as that term is defined in section 6329(d)(1) of title 5, United States Code, as added by subsection (a)) hired on or after the date that is 1 year after the date of enactment of this Act [Nov. 5, 2015].’’ REGULATIONS Pub. L. 115–364, § 1(b), Dec. 21, 2018, 132 Stat. 5088, pro- vided that: ‘‘Not later than 9 months after the date of the enactment of this Act [Dec. 21, 2018], the Com- mittee on House Administration of the House of Rep- resentatives, the Committee on Rules and Administra- tion of the Senate, and the head of each other office of the legislative branch shall prescribe regulations gov- erning the application of section 6329 of title 5, United States Code, including the certification requirement under subsection (c) of such section, to employees of the House of Representatives, employees of the Senate, and employees of such office, respectively.’’ Pub. L. 114–75, § 2(d), Nov. 5, 2015, 129 Stat. 641, pro- vided that: ‘‘Not later than 9 months after the date of enactment of this Act [Nov. 5, 2015]— ‘‘(1) the Director of the Office of Personnel Manage- ment shall prescribe regulations with respect to the leave provided by the amendment in subsection (a) [enacting this section] for employees, but not includ- ing employees of the United States Postal Service or the Postal Regulatory Commission; and ‘‘(2) the Postmaster General shall prescribe regula- tions for such leave with respect to officers and em- ployees of the United States Postal Service and the Postal Regulatory Commission.’’ § 6329a. Administrative leave (a) DEFINITIONS.—In this section— (1) the term ‘‘administrative leave’’ means leave— (A) without loss of or reduction in— (i) pay; (ii) leave to which an employee is other- wise entitled under law; or (iii) credit for time or service; and (B) that is not authorized under any other provision of law; (2) the term ‘‘agency’’— (A) means an Executive agency (as defined in section 105 of this title); (B) includes the Department of Veterans Affairs; and (C) does not include the Government Ac- countability Office; and (3) the term ‘‘employee’’— (A) has the meaning given the term in sec- tion 2105; and (B) does not include an intermittent em- ployee who does not have an established reg- ular tour of duty during the administrative workweek. (b) ADMINISTRATIVE LEAVE.— Page 823 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6329b (1) IN GENERAL.—During any calendar year, an agency may place an employee in adminis- trative leave for a period of not more than a total of 10 work days. (2) RECORDS.—An agency shall record admin- istrative leave separately from leave author- ized under any other provision of law. (c) REGULATIONS.— (1) OPM REGULATIONS.—Not later than 270 calendar days after the date of enactment of this section, the Director of the Office of Per- sonnel Management shall— (A) prescribe regulations to carry out this section; and (B) prescribe regulations that provide guidance to agencies regarding— (i) acceptable agency uses of administra- tive leave; and (ii) the proper recording of— (I) administrative leave; and (II) other leave authorized by law. (2) AGENCY ACTION.—Not later than 270 cal- endar days after the date on which the Direc- tor of the Office of Personnel Management prescribes regulations under paragraph (1), each agency shall revise and implement the internal policies of the agency to meet the re- quirements of this section. (d) RELATION TO OTHER LAWS.—Notwith- standing subsection (a) of section 7421 of title 38, this section shall apply to an employee de- scribed in subsection (b) of that section. (Added Pub. L. 114–328, div. A, title XI, § 1138(c)(1), Dec. 23, 2016, 130 Stat. 2461.) Editorial Notes REFERENCES IN TEXT The date of enactment of this section, referred to in subsec. (c)(1), is the date of enactment of Pub. L. 114–328, which was approved Dec. 23, 2016. Statutory Notes and Related Subsidiaries SENSE OF CONGRESS Pub. L. 114–328, div. A, title XI, § 1138(b), Dec. 23, 2016, 130 Stat. 2460, provided that: ‘‘It is the sense of Con- gress that— ‘‘(1) agency use of administrative leave, and leave that is referred to incorrectly as administrative leave in agency recording practices, has exceeded reason- able amounts— ‘‘(A) in contravention of— ‘‘(i) established precedent of the Comptroller General of the United States; and ‘‘(ii) guidance provided by the Office of Per- sonnel Management; and ‘‘(B) resulting in significant cost to the Federal Government; ‘‘(2) administrative leave should be used sparingly; ‘‘(3) prior to the use of paid leave to address per- sonnel issues, an agency should consider other ac- tions, including— ‘‘(A) temporary reassignment; and ‘‘(B) transfer; ‘‘(4) an agency should prioritize and expeditiously conclude an investigation in which an employee is placed in administrative leave so that, not later than the conclusion of the leave period— ‘‘(A) the employee is returned to duty status; or ‘‘(B) an appropriate personnel action is taken with respect to the employee; ‘‘(5) data show that there are too many examples of employees placed in administrative leave for 6 months or longer, leaving the employees without any available recourse to— ‘‘(A) return to duty status; or ‘‘(B) challenge the decision of the agency; ‘‘(6) an agency should ensure accurate and con- sistent recording of the use of administrative leave so that administrative leave can be managed and over- seen effectively; and ‘‘(7) other forms of excused absence authorized by law should be recorded separately from administra- tive leave, as defined by the amendments made by this section [see section 1138a of Pub. L. 114–328 set out as a Short Title of 2016 Amendment note under section 101 of this title].’’ GAO REPORT Pub. L. 114–328, div. A, title XI, § 1138(d)(2), Dec. 23, 2016, 130 Stat. 2468, provided that: ‘‘Not later than 5 years after the date of enactment of this Act [Dec. 23, 2016], and every 5 years thereafter, the Comptroller General of the United States shall submit to the Com- mittee on Homeland Security and Governmental Af- fairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives a re- port on the results of an evaluation of the implementa- tion of the authority provided under sections 6329a and 6329b of title 5, United States Code, as added by sub- section (c)(1) of this section and paragraph (1) of this subsection, respectively, including— ‘‘(A) the number of times that an agency, under subsection (c)(1) of such section 6329b— ‘‘(i) consulted with the investigator responsible for conducting the investigation to which an em- ployee was subject with respect to the decision of the agency to grant an extension under that sub- section; and ‘‘(ii) did not have a consultation described in clause (i), including the reasons that the agency failed to have such a consultation; ‘‘(B) an assessment of the use of the authority pro- vided under subsection (d) of such section 6329b by agencies, including data regarding the number and length of extensions granted under that subsection; ‘‘(C) an assessment of the compliance with the re- quirements of subsection (f) of such section 6329b by agencies; ‘‘(D) a review of the practice of agency placement of an employee in investigative or notice leave under subsection (b) of such section 6329b because of a de- termination under subsection (b)(2)(A)(iv) of that sec- tion that the employee jeopardized legitimate Gov- ernment interests, including the extent to which such determinations were supported by evidence; and ‘‘(E) an assessment of the effectiveness of sub- section (g) of such section 6329b in preventing and correcting the use of extended investigative leave as a tool of reprisal for making a protected disclosure or engaging in protected activity as described in para- graph (8) or (9) of section 2302(b) of title 5, United States Code.’’ § 6329b. Investigative leave and notice leave (a) DEFINITIONS.—In this section— (1) the term ‘‘agency’’— (A) means an Executive agency (as defined in section 105 of this title); (B) includes the Department of Veterans Affairs; and (C) does not include the Government Ac- countability Office; (2) the term ‘‘Chief Human Capital Officer’’ means— (A) the Chief Human Capital Officer of an agency designated or appointed under sec- tion 1401; or (B) the equivalent;