§ 630.1503 Authority and requirements for investigative leave and notice leave

5 CFR 630.1503(a)(a) Authority. An agency may, in accordance with paragraph (b) of this section, and in its discretion, place an employee on—

5 CFR 630.1503(a)(1)(1) Investigative leave, if the employee is the subject of an investigation; or

5 CFR 630.1503(a)(2)(2) Notice leave—

5 CFR 630.1503(a)(2)(i)(i) If the employee is in a notice period; or

5 CFR 630.1503(a)(2)(ii)(ii) Following a placement on investigative leave if, not later than the day after the last day of the period of investigative leave—

5 CFR 630.1503(a)(2)(ii)(A)(A) The agency proposes or initiates an adverse action against the employee; and

5 CFR 630.1503(a)(2)(ii)(B)(B) The agency determines that the employee continues to meet one or more of the criteria described in paragraph (b)(1) of this section.

5 CFR 630.1503(b)(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—

5 CFR 630.1503(b)(1)(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—

5 CFR 630.1503(b)(1)(i)(i) Pose a threat to the employee or others;

5 CFR 630.1503(b)(1)(ii)(ii) Result in the destruction of evidence relevant to an investigation;

5 CFR 630.1503(b)(1)(iii)(iii) Result in loss of or damage to Government property; or

5 CFR 630.1503(b)(1)(iv)(iv) Otherwise jeopardize legitimate Government interests; and

5 CFR 630.1503(b)(2)(2) Considered the following options (or a combination thereof):

5 CFR 630.1503(b)(2)(i)(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;

5 CFR 630.1503(b)(2)(ii)(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;

5 CFR 630.1503(b)(2)(iii)(iii) Carrying the employee in absent without leave status, if the employee is absent from duty without approval; and

5 CFR 630.1503(b)(2)(iv)(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

5 CFR 630.1503(b)(3)(3) Determined that none of the options under paragraph (b)(2) of this section is appropriate.

5 CFR 630.1503(c)(c) Telework alternative for investigative leave.

5 CFR 630.1503(c)(1)(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—

5 CFR 630.1503(c)(1)(i)(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;

5 CFR 630.1503(c)(1)(ii)(ii) The employee is eligible to telework; as set forth in paragraph (c)(2);

5 CFR 630.1503(c)(1)(iii)(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 commencement of investigative leave (or the commencement of required telework in lieu of such leave under paragraph (c) of this section, if earlier); and

5 CFR 630.1503(c)(1)(iv)(iv) The agency determines that teleworking would be appropriate.

5 CFR 630.1503(c)(2)(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.

5 CFR 630.1503(c)(3)(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.

5 CFR 630.1503(c)(4)(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 CFR 630.1503(c)(5)(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:

5 CFR 630.1503(c)(5)(i)(i) The agency's determination under paragraph (c)(1) of this section; and,

5 CFR 630.1503(c)(5)(ii)(ii) A description of the limitations of the required telework, including the expected duration of telework.

5 CFR 630.1503(d)(d) Reassessment and return to duty.

5 CFR 630.1503(d)(1)(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.

5 CFR 630.1503(d)(2)(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.

5 CFR 630.1503(d)(3)(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.

5 CFR 630.1503(d)(4)(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.

5 CFR 630.1503(e)(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:

5 CFR 630.1503(e)(1)(1) The nature and severity of the employee's exhibited or alleged behavior;

5 CFR 630.1503(e)(2)(2) The nature of the agency's or employee's work and the ability of the agency to accomplish its mission; and

5 CFR 630.1503(e)(3)(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—

5 CFR 630.1503(e)(3)(i)(i) The life, safety, or health of employees, contractors, vendors or visitors to a Federal facility;

5 CFR 630.1503(e)(3)(ii)(ii) The Government's physical assets or information systems;

5 CFR 630.1503(e)(3)(iii)(iii) Personal property;

5 CFR 630.1503(e)(3)(iv)(iv) Records, including classified, privileged, proprietary, financial or medical records; or

5 CFR 630.1503(e)(3)(v)(v) The privacy of the individuals whose data the Government holds in its systems.

5 CFR 630.1503(f)(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.

5 CFR 630.1503(g)(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.