§ 630.1504 Administration of investigative leave

5 CFR 630.1504(a)(a) Commencement. An initial period of investigative leave may not be commenced until—

5 CFR 630.1504(a)(1)(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

5 CFR 630.1504(a)(2)(2) The agency determines that further investigation of the employee is necessary.

5 CFR 630.1504(b)(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—

5 CFR 630.1504(b)(1)(1) On-duty service performed under § 630.1503(b)(2)(i) or (c);

5 CFR 630.1504(b)(2)(2) Leave or paid time off in lieu of such service under § 630.1503(b)(2)(ii); or

5 CFR 630.1504(b)(3)(3) Absence without leave under § 630.1503(b)(2)(iii).

5 CFR 630.1504(c)(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—

5 CFR 630.1504(c)(1)(1) A description of the limitations of the leave placement, including the duration of leave;

5 CFR 630.1504(c)(2)(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

5 CFR 630.1504(c)(3)(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).

5 CFR 630.1504(d)(d) Agency action. Not later than the day after the last day of an initial or extended period of investigative leave, an agency must—

5 CFR 630.1504(d)(1)(1) Return the employee to regular duty status;

5 CFR 630.1504(d)(2)(2) Take one or more of the actions under § 630.1503(b)(2);

5 CFR 630.1504(d)(3)(3) Propose or initiate an adverse action against the employee as provided under law; or

5 CFR 630.1504(d)(4)(4) Extend the period of investigative leave if permitted under paragraphs (f) and (g) of this section.

5 CFR 630.1504(e)(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.

5 CFR 630.1504(f)(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.

5 CFR 630.1504(f)(2)(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.

5 CFR 630.1504(f)(3)(3) Approval of extensions.

5 CFR 630.1504(f)(3)(i)(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.

5 CFR 630.1504(f)(3)(ii)(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.

5 CFR 630.1504(f)(3)(iii)(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—

5 CFR 630.1504(f)(3)(iii)(A)(A) The Inspector General or the designee of the Inspector General, rather than the CHCO or the designee of the CHCO; or

5 CFR 630.1504(f)(3)(iii)(B)(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.

5 CFR 630.1504(f)(3)(iii)(B)(4)(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).

5 CFR 630.1504(g)(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—

5 CFR 630.1504(g)(1)(1) The title, position, office or agency subcomponent, job series, pay grade, and salary of the employee;

5 CFR 630.1504(g)(2)(2) A description of the duties of the employee;

5 CFR 630.1504(g)(3)(3) The reason the employee was placed on investigative leave;

5 CFR 630.1504(g)(4)(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 CFR 630.1504(g)(5)(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;

5 CFR 630.1504(g)(6)(6) The status of the investigation of the employee;

5 CFR 630.1504(g)(7)(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

5 CFR 630.1504(g)(8)(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.

5 CFR 630.1504(h)(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.

5 CFR 630.1504(i)(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).

5 CFR 630.1504(j)(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:

5 CFR 630.1504(j)(1)(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.

5 CFR 630.1504(j)(2)(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.

5 CFR 630.1504(j)(3)(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)).

5 CFR 630.1504(j)(4)(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—

5 CFR 630.1504(j)(4)(i)(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 part-time tour of duty established for purposes of charging leave when absent;

5 CFR 630.1504(j)(4)(ii)(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;

5 CFR 630.1504(j)(4)(iii)(iii) Summing the hours of investigative 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 (j)(4)(i) and (ii) of this section; and

5 CFR 630.1504(j)(4)(iv)(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.