Date: January 26, 2017
President Signs S. 2943,
National Defense Authorization Act
For Fiscal Year 2017
On December 23, 2016, the President signed S. 2943, the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328. The law includes a number of provisions related to leave and personnel actions. The leave provisions create four new leave categories; explicitly define and limit the extended use of administrative leave; encourage federal agencies to keep employees on regular duty or take other actions (such as temporary reassignment) when an employee should be out of the workplace; and, require better accounting for all types of excused absence. Other provisions affect agencies’ direct hiring authority and ensure federal workers accused of misconduct are held accountable.
The following are provisions of interest to SSA in section 1138, the Administrative Leave Act of 2016:
- Codifies the definition of administrative leave separate from other forms of paid leave or excused absence already authorized by statute. Previously, agencies granted this type of leave using agency discretion.
- Provides that administrative leave be no longer than 10 workdays during a calendar year.
- Requires agencies to record administrative leave separately from other leave categories.
- Requires the Office of Personnel Management (OPM) to publish regulations implementing these provisions within 270 days of enactment, and agencies to revise and implement their policies accordingly within 270 days of OPM publication.
Investigative Leave and Notice Leave
- Creates two new types of leave, investigative leave and notice leave, for employees subject to investigation or notice of a proposed adverse action, respectively. Requires agencies to record them separately from each other and from other leave categories.
- Prevents agencies from placing employees in investigative or notice leave unless:
- Their continued presence in the workplace might pose a threat to a person; result in the destruction of evidence; result in loss of (or damage to) government property; or otherwise jeopardize legitimate government interests; and
- The agency has first considered other options, such as assigning them to duties in which they are no longer a threat; allowing them to voluntarily take another type of leave; and requiring them to telework.
- Authorizes agencies to place employees in investigative leave for up to 30 workdays, while they are the subject of an investigation, after the 10 day period of administrative leave.
- Authorizes agencies to extend investigative leave for periods of 30 workdays, not to exceed 90 workdays. Authorizes further extensions for periods not to exceed 30 workdays if the investigative entity certifies the need for more time, including an estimate of the time needed, and if the agency submits a detailed report to the Senate Committees on Finance and on Homeland Security and Governmental Affairs and the House Committees on Ways and Means and on Oversight and Government Reform.
- Authorizes agencies to place employees on notice leave for the duration of the notice period, i.e., the period beginning on the date on which an employee is provided notice required under law of a proposed adverse action through the date the agency may take the adverse action.
- Requires agencies provide employees an explanation why they are being placed on investigative leave or notice leave, and for investigative leave, an explanation that the agency will take action at the conclusion of the leave period (e.g., return the employee to work, take adverse action, or extend the leave).
- Requires agencies to keep detailed records of investigative and notice leave, to be made available to OMB and any committee of jurisdiction upon request, including but not limited to the duration and reason for the leave.
- Requires agencies to publish regulations implementing these provisions within 270 days of enactment and agencies to revise and implement their policies accordingly within 270 days of OPM publication.
Weather and Safety Leave
- Codifies agencies’ practice of permitting weather and safety leave to last as long as a condition prevents the employee or group of employees from safely traveling to or performing work at an approved location.
- Requires agencies to record weather and safety leave separately from other leave categories.
- Requires OPM to publish regulations implementing this provision within 270 days of enactment.
The following are provisions of interest to SSA in sections 1139 and 1140:
- Requires OPM to permit agencies with delegated examining authority to use direct hiring authority for certain positions, e.g., GS-15s or below, if OMB determines there is a severe shortage of candidates or critical hiring need.
- Requires agencies to make a permanent notation in the personnel records of any employee who resigns from government employment while under a personnel investigation, if the investigation makes an adverse determination. Allow employees to appeal such notations to Merit Systems Protection Board.
- Effective upon enactment.