5 U.S.C. § 6329b — Investigative leave and notice 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; Page 824 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6329b (3) the term ‘‘committees of jurisdiction’’, with respect to an agency, means each com- mittee of the Senate or House of Representa- tives with jurisdiction over the agency; (4) the term ‘‘Director’’ means the Director of the Office of Personnel Management; (5) the term ‘‘employee’’— (A) has the meaning given the term in sec- tion 2105; and (B) does not include— (i) an intermittent employee who does not have an established regular tour of duty during the administrative workweek; or (ii) the Inspector General of an agency; (6) the term ‘‘investigative entity’’ means— (A) an internal investigative unit of an agency granting investigative leave under this section; (B) the Office of Inspector General of an agency granting investigative leave under this section; (C) the Attorney General; and (D) the Office of Special Counsel; (7) the term ‘‘investigative 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; (B) that is not authorized under any other provision of law; and (C) in which an employee who is the sub- ject of an investigation is placed; (8) the term ‘‘notice 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; (B) that is not authorized under any other provision of law; and (C) in which an employee who is in a no- tice period is placed; and (9) the term ‘‘notice period’’ means a period beginning on the date on which an employee is provided notice required under law of a pro- posed adverse action against the employee and ending on the date on which an agency may take the adverse action. (b) LEAVE FOR EMPLOYEES UNDER INVESTIGA- TION OR IN A NOTICE PERIOD.— (1) AUTHORITY.—An agency may, in accord- ance with paragraph (2), place an employee in— (A) investigative leave if the employee is the subject of an investigation; (B) notice leave if the employee is in a no- tice period; or (C) notice leave following a placement in investigative leave if, not later than the day after the last day of the period of investiga- tive leave— (i) the agency proposes or initiates an adverse action against the employee; and (ii) the agency determines that the em- ployee continues to meet 1 or more of the criteria described in paragraph (2)(A). (2) REQUIREMENTS.—An agency may place an employee in leave under paragraph (1) only if the agency has— (A) made a determination with respect to the employee that the continued presence of the employee in the workplace during an in- vestigation of the employee or while the em- ployee is in a notice period, as applicable, may— (i) pose a threat to the employee or oth- ers; (ii) result in the destruction of evidence relevant to an investigation; (iii) result in loss of or damage to Gov- ernment property; or (iv) otherwise jeopardize legitimate Gov- ernment interests; (B) considered— (i) assigning the employee to duties in which the employee no longer poses a threat described in clauses (i) through (iv) of subparagraph (A); (ii) allowing the employee to take leave for which the employee is eligible; (iii) if the employee is absent from duty without approved leave, carrying the em- ployee in absence without leave status; and (iv) for an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the em- ployee has committed a crime for which a sentence of imprisonment may be imposed; and (C) determined that none of the available options under clauses (i) through (iv) of sub- paragraph (B) is appropriate. (3) DURATION OF LEAVE.— (A) INVESTIGATIVE LEAVE.—Upon the expi- ration of the 10 work day period described in section 6329a(b)(1) with respect to an em- ployee, and if an agency determines that an extended investigation of the employee is necessary, the agency may place the em- ployee in investigative leave for a period of not more than 30 work days. (B) NOTICE LEAVE.—Placement of an em- ployee in notice leave shall be for a period not longer than the duration of the notice period. (4) EXPLANATION OF LEAVE.— (A) IN GENERAL.—If an agency places an employee in leave under this subsection, the agency shall provide the employee a written explanation of whether the employee was placed in investigative leave or notice leave. (B) EXPLANATION.—The written notice under subparagraph (A) shall describe the limitations of the leave placement, includ- ing— (i) the applicable limitations under para- graph (3); and (ii) in the case of a placement in inves- tigative leave, an explanation that, at the conclusion of the period of leave, the agen- cy shall take an action under paragraph (5). (5) AGENCY ACTION.—Not later than the day after the last day of a period of investigative Page 825 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6329b leave for an employee under paragraph (1), an agency shall— (A) return the employee to regular duty status; (B) take 1 or more of the actions under clauses (i) through (iv) of paragraph (2)(B); (C) propose or initiate an adverse action against the employee as provided under law; or (D) extend the period of investigative leave under subsections (c) and (d). (6) RULE OF CONSTRUCTION.—Nothing in para- graph (5) shall be construed to prevent the continued investigation of an employee, ex- cept that the placement of an employee in in- vestigative leave may not be extended for that purpose except as provided in subsections (c) and (d). (c) INITIAL EXTENSION OF INVESTIGATIVE LEAVE.— (1) IN GENERAL.—Subject to paragraph (4), if the Chief Human Capital Officer of an agency, or the designee of the Chief Human Capital Of- ficer, approves such an extension after con- sulting with the investigator responsible for conducting the investigation to which an em- ployee is subject, the agency may extend the period of investigative leave for the employee under subsection (b) for not more than 30 work days. (2) MAXIMUM NUMBER OF EXTENSIONS.—The total period of additional investigative leave for an employee under paragraph (1) may not exceed 90 work days. (3) DESIGNATION GUIDANCE.—Not later than 270 days after the date of enactment of this section, the Chief Human Capital Officers Council shall issue guidance to ensure that if the Chief Human Capital Officer of an agency delegates the authority to approve an exten- sion under paragraph (1) to a designee, the des- ignee is at a sufficiently high level within the agency to make an impartial and independent determination regarding the extension. (4) EXTENSIONS FOR OIG EMPLOYEES.— (A) APPROVAL.—In the case of an employee of an Office of Inspector General— (i) the Inspector General or the designee of the Inspector General, rather than the Chief Human Capital Officer or the des- ignee of the Chief Human Capital Officer, shall approve an extension of a period of investigative leave for the employee under paragraph (1); or (ii) at the request of the Inspector Gen- eral, the head of the agency within which the Office of Inspector General is located shall designate an official of the agency to approve an extension of a period of inves- tigative leave for the employee under paragraph (1). (B) GUIDANCE.—Not later than 270 calendar days after the date of enactment of this sec- tion, the Council of the Inspectors General on Integrity and Efficiency shall issue guid- ance to ensure that if the Inspector General or the head of an agency, at the request of the Inspector General, delegates the author- ity to approve an extension under subpara- graph (A) to a designee, the designee is at a sufficiently high level within the Office of Inspector General or the agency, as applica- ble, to make an impartial and independent determination regarding the extension. (d) FURTHER EXTENSION OF INVESTIGATIVE LEAVE.— (1) REPORT.—After reaching the limit under subsection (c)(2) and if an investigative entity submits a certification under paragraph (2) of this subsection, an agency may further extend a period of investigative leave for an employee for periods of not more than 30 work days each if, not later than 5 business days after grant- ing each further extension, the agency sub- mits to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives, along with any other committees of jurisdiction, a report containing— (A) the title, position, office or agency subcomponent, job series, pay grade, and sal- ary of the employee; (B) a description of the duties of the em- ployee; (C) the reason the employee was placed in investigative leave; (D) an explanation as to why— (i) the employee poses a threat described in clauses (i) through (iv) of subsection (b)(2)(A); and (ii) the agency is not able to reassign the employee to another position within the agency; (E) in the case of an employee required to telework under section 6502(c) during the in- vestigation of the employee— (i) the reasons that the agency required the employee to telework under that sec- tion; and (ii) the duration of the teleworking re- quirement; (F) the status of the investigation of the employee; (G) the certification described in para- graph (2); and (H) in the case of a completed investiga- tion of the employee— (i) the results of the investigation; and (ii) the reason that the employee re- mains in investigative leave. (2) CERTIFICATION.—If, after an employee has reached the limit under subsection (c)(2), an investigative entity determines that addi- tional time is needed to complete the inves- tigation of the employee, the investigative en- tity shall— (A) certify to the appropriate agency that additional time is needed to complete the in- vestigation of the employee; and (B) include in the certification an estimate of the amount of time that is necessary to complete the investigation of the employee. (3) NO EXTENSIONS AFTER COMPLETION OF IN- VESTIGATION.—An agency may not further ex- tend a period of investigative leave of an em- ployee under paragraph (1) on or after the date that is 30 calendar days after the completion of the investigation of the employee by an in- vestigative entity. Page 826 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6329c (e) CONSULTATION GUIDANCE.—Not later than 270 calendar days after the date of enactment of this section, the Council of the Inspectors Gen- eral on Integrity and Efficiency, in consultation with the Attorney General and the Special Counsel, shall issue guidance on best practices for consultation between an investigator and an agency on the need to place an employee in in- vestigative leave during an investigation of the employee, including during a criminal investiga- tion, because the continued presence of the em- ployee in the workplace during the investigation may— (1) pose a threat to the employee or others; (2) result in the destruction of evidence rel- evant to an investigation; (3) result in loss of or damage to Govern- ment property; or (4) otherwise jeopardize legitimate Govern- ment interests. (f) REPORTING AND RECORDS.— (1) IN GENERAL.—An agency shall keep a record of the placement of an employee in in- vestigative leave or notice leave by the agen- cy, including— (A) the basis for the determination made under subsection (b)(2)(A); (B) an explanation of why an action under clauses (i) through (iv) of subsection (b)(2)(B) was not appropriate; (C) the length of the period of leave; (D) the amount of salary paid to the em- ployee during the period of leave; (E) the reasons for authorizing the leave, including, if applicable, the recommendation made by an investigator under subsection (c)(1); (F) whether the employee is required to telework under section 6502(c) during the in- vestigation, including the reasons for requir- ing the employee to telework; and (G) the action taken by the agency at the end of the period of leave, including, if appli- cable, the granting of any extension of a pe- riod of investigative leave under subsection (c) or (d). (2) AVAILABILITY OF RECORDS.—An agency shall make a record kept under paragraph (1) available— (A) to any committee of jurisdiction, upon request; (B) to the Office of Personnel Manage- ment; and (C) as otherwise required by law, including for the purposes of the Administrative Leave Act of 2016 and the amendments made by that Act. (g) RECOURSE TO THE OFFICE OF SPECIAL COUN- SEL.—For purposes of subchapter II of chapter 12 and section 1221, placement on investigative leave under subsection (b) of this section for a period of not less than 70 work days shall be con- sidered a personnel action under paragraph (8) or (9) of section 2302(b). (h) REGULATIONS.— (1) OPM ACTION.—Not later than 270 calendar days after the date of enactment of this sec- tion, the Director shall prescribe regulations to carry out this section, including guidance to agencies regarding— (A) acceptable purposes for the use of— (i) investigative leave; and (ii) notice leave; (B) the proper recording of— (i) the leave categories described in sub- paragraph (A); and (ii) other leave authorized by law; (C) baseline factors that an agency shall consider when making a determination that the continued presence of an employee in the workplace may— (i) pose a threat to the employee or oth- ers; (ii) result in the destruction of evidence relevant to an investigation; (iii) result in loss or damage to Govern- ment property; or (iv) otherwise jeopardize legitimate Gov- ernment interests; and (D) procedures and criteria for the ap- proval of an extension of a period of inves- tigative leave under subsection (c) or (d). (2) AGENCY ACTION.—Not later than 270 cal- endar days after the date on which the Direc- tor 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. (i) 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(d)(1), Dec. 23, 2016, 130 Stat. 2462.) Editorial Notes REFERENCES IN TEXT The date of enactment of this section, referred to in subsecs. (c)(3), (4)(B), (e) and (h)(1), is the date of enact- ment of Pub. L. 114–328, which was approved Dec. 23, 2016. The Administrative Leave Act of 2016, referred to in subsec. (f)(2)(C), is section 1138 of title XI of div. A of Pub. L. 114–328, Dec. 23, 2016, 130 Stat. 2460. For com- plete classification of this Act to the Code, see Short Title of 2016 Amendment note set out under section 101 of this title and Tables. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Con- gress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representa- tives by House Resolution No. 5, One Hundred Eight- eenth Congress, Jan. 9, 2023. § 6329c. Weather and safety leave (a) DEFINITIONS.—In this section— (1) the term ‘‘agency’’— (A) means an Executive agency (as defined in section 105 of this title); (B) includes the Department of Veterans Affairs; and (C) does not include the Government Ac- countability Office; and