No Right to Authorized Absence Unless…

The issue of authorized absence (also referred by some and many as excused absence, administrative leave, “no charge to leave”) comes up en masse every year about this time.  During the latter half of January 2016, the top search term resulting in traffic to this site was “authorized Absence” and we received less than eight EEO inquiries. Previously, we posted two articles concerning this topic, Administrative Leave & Authorized Absence and Excused Absences for Inclement Weather.

The Office of Personnel Management (OPM) provides the following guidance:

Administrative leave (also referred to as “excused absence”) is an administratively authorized absence from duty without loss of pay or charge to leave.

Although administrative leave is not expressly referenced in title 5, the authority to grant an excused absence derives from the inherent authority for heads of agencies to prescribe regulations for the government of their organizations. (See, e.g., 5 U.S.C. 301-302.)

The Comptroller General has issued many decisions acknowledging that heads of Executive agencies have broad authority to manage their organizations, including the authority to grant administrative leave, unless prohibited by law.

Administrative leave is not an entitlement, and agencies are not required to grant it. However, in special circumstances covered by Governmentwide directives or in reaction to emergencies, agencies may have policies and practices in place that provide for automatic application of administrative leave.  More notable is a certain amount of Authorized Absence in connection with completion of active duty military service overseas.

The Bottom Line

The bottom line remains the same. There is no obligation (employee entitlement) for any federal agency to grant authorized absence to an employee unless the agency has otherwise agreed to do so.

Federal agencies maintain very broad discretion to grant administrative leave (“excused absence”) for brief periods of time and may negotiate the terms under which it will exercise that discretion. Social Security Administration, 103 LRP 31214 , 58 FLRA 630 (FLRA 2003).  Furthermore, local unions may negotiate over the granting of administrative leave since administrative leave has been determined to constitute a condition of employment. Department of Labor, 105 LRP 627 , 60 FLRA 533 (FLRA 2004) and  Internal Revenue Service, 108 LRP 29053 , 62 FLRA 411 (FLRA 2008); AFGE Local 2761 v. FLRA, 89 FLRR 1-8002 , 866 F.2d 1443 (D.C. Cir. 1989).  Therefore, any obligation requiring an agency to grant authorized absence under certain conditions will most likely be expressed in a negotiated instrument such as a Master Agreement or Memorandum of Understanding or a Local Supplemental Agreement with the union.  It is also important to realize that even if the agency previously agreed to such an obligation, it may choose to deny the granting of such leave on the basis of workload demands. Patent and Trademark Office, 97 FLRR 1-1123 , 53 FLRA 539 (FLRA 1997).

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