Enforced Leave

I-2021-17


Effective Date: Expiration Date: Chapters:
May 17, 2021 When Superseded 16  

Overview

When there is reliable evidence that an employee used fraud in securing their appointment, falsified official records, or has been indicted on, arrested for, charged with or convicted of a felony or any crime that bears a relationship to their position, an agency may place the employee in an involuntary non-duty leave status. Enforced leave is not considered a corrective or adverse action. While an employee is on enforced leave, the agency must complete an investigation into the employee’s conduct to determine if corrective or adverse action is warranted. An employee shall remain on enforced leave no longer than is required to reach a final determination on corrective or adverse action, or 180 days, whichever is shorter.

NOTE: This issuance supersedes DPM Instruction I-16-14, Enforced Leave, effected March 20, 2016. This issuance provides a new electronic process for requesting enforced leave approvals.

Conduct Subject to Enforced Leave

An employee may be placed on enforced leave if an agency has reliable evidence that the employee:

  1. Utilized fraud in securing their appointment;
  2. Falsified official records;
  3. Has been indicted on, arrested for, charged with, or convicted of a felony charge (including a conviction following a plea of nolo contendere); or
  4. Has been indicted on, arrested for, or convicted of any crime that bears a relationship to their position.

Additionally, the Metropolitan Police Department may place a uniformed member, and the Department of Corrections may place a correctional officer, on enforced leave when they have been arrested for, charged with, indicted on or convicted of any crime irrespective of the relationship between the crime and the employee’s duties and responsibilities.


Requesting Approval for Enforced Leave

Once an agency has reliable evidence that an employee committed any of the actions above, the agency must receive approval from the personnel authority in writing before placing an employee on enforced leave.

To request an enforced leave action from DCHR:

  1. An agency HR representative should fill out the online form.
  2. Upon submitting the online form, the agency HR representative will receive an email advising them to submit supporting documents. The email will have the subject line “Request Received Enforced Leave.”
  3. The agency representative must reply to the email by attaching a memorandum and provide relevant supporting documentation for the request.
  4. DCHR will process the request upon receipt of the supporting documents. If any additional information is required, a member of the DCHR Compliance Team will reach out.
  5. DCHR will review the evidence in support of the action and issue its written determination.

If approved, DCHR will identify the specific conduct subject to enforced leave and the evidence relied upon. If DCHR does not approve the proposed enforced leave action, the agency may continue to proceed with investigating the incident and administer any proposed corrective or adverse action related to the incident, as appropriate. However, the employee cannot be placed in an involuntary leave status while the agency investigates.

Types of Documentation to Verify Applicable Conduct Is Appropriate for Enforced Leave

In addition to the information provided on the online form, DCHR will review the documentation submitted to validate an enforced leave request. The agency should include a memorandum outlining the agency’s request and summarizing the supporting documentation.

Types of supporting documentation that may be considered include, but are not limited to, an arrest warrant, a document indicating an indictment has occurred, a charging or pleading document, or government records which show fraud has been committed (e.g., PeopleSoft e-Time records, employee applications, falsification of educational credentials). Agencies should consult with their legal counsel to review any supporting documentation prior to submitting the information for approval to DCHR.

NOTE: For expediency, after reviewing documentation submitted to validate an enforced leave request, the Department of Human Resources may provide an agency a preliminary approval through informal means and will then follow that approval with official correspondence.

Notice of Enforced Leave

After obtaining the personnel authority’s approval, agencies should proceed with administering an enforced leave action. It is important to note that enforced leave is not considered a corrective or adverse action.

A. Issuing the Notice of Proposed Enforced Leave

The agency must first give the employee notice of a proposed enforced leave action, in accordance with the requirements outlined in 6-B DCMR § 1618. This must occur no less than five days prior to implementing the enforced leave action. A template can be found on DCHR’s intranet site.  

The notice of proposed enforced leave action must:

  • Inform the employee of the proposed enforced leave action;
  • Include the start and end dates of the enforced leave period;
  • State the duration and start date of the enforced leave period and the approved type(s) of paid leave that may be used during that time;
  • Identify the specific conduct at issue and how the employee's performance or conduct fails to meet appropriate standards;
  • Provide the name and contact information of the anticipated deciding official;
  • Note the subsequent action that may be taken as a result of the alleged conduct; and  
  • Advise the employee of their right to review any material upon which the proposed action is based, prepare a written response, and be represented by an attorney or other representative.

The notice must be approved and signed by a proposing official agency. The agency must then serve the employee with the signed notice and supporting materials, either in person or by commercial courier that provides delivery tracking and confirmation information. If it is impractical to provide the supporting materials, the agency may exclude them when serving the employee, but must provide them to the employee upon their request.

B. Employee’s Opportunity to Respond

Once the agency serves the employee, the agency should allow the employee time to respond either verbally or in writing, or both. Employee responses must be received within two days of the service of the proposed notice, unless the deciding official approves the employee’s request for an extension for good cause.

The employee may present evidence that they believe might affect the final decision on the proposed enforced action, which can include, but is not limited to, written statements of witnesses, affidavits, or documents or any other form or depiction of information.

C. Final Agency Decision on Enforced Leave

The deciding official shall issue a final agency decision on the enforced leave action within 45 days of the expiration date of the employee’s time to respond or the agency’s receipt of the employee response, whichever is later. The final agency decision should provide a concise summary of the actions being taken, the effective date of the actions, succinctly enumerate each independent cause for which the action is being taken, include materials relied on in rendering the final decision, demonstrate reasoned consideration of the relevant factors, and provide the employee with their right appeal and any applicable Office of Employee Appeals (OEA) documents.

For an enforced leave action of less than ten days, an employee has the right to file a grievance an within ten days of the issuance of the final agency action. For an enforced leave action of ten or more days, an employee may appeal the final agency action to OEA. Templates can be found on DCHR’s intranet site.  

D. Recordkeeping and Confidentiality

A copy of the final agency decision shall be placed in the employee's official personnel file (OPF) and retained in the OPF for three years unless sooner ordered withdrawn by the issuing official, the official's superiors or successors, a court of competent jurisdiction, an arbitrator of competent jurisdiction, the appropriate personnel authority, the Office of Human Rights, or pursuant to a settlement agreement. All documentation and information concerning an enforced leave action will be safeguarded and maintained in a confidential manner.


Implementing Enforced Leave

A. Administrative Leave

When the agency issues the proposed enforced leave notice, the agency should then place the employee on administrative leave for five workdays prior to the start date of the period of enforced leave. Once the administrative leave period has ended, the period of enforced leave begins. Any subsequent corrective or adverse action notice does not restart the period of administrative leave.

B. Commencing Enforced Leave

After the five workdays of administrative leave expires, the agency must place an employee on enforced leave using the employee’s accrued annual leave. An employee cannot use sick leave during the enforced leave period. If an employee does not have sufficient leave or if that leave is exhausted, the employee must be placed in a leave without pay (LWOP) status.

While on enforced leave, employees are entitled to accrue leave so long as they remain in a pay status. This means that when an employee is on enforced leave, they may continue to accrue annual and sick leave at their usual rate until they are no longer in a pay status. Likewise, employees who are in a pay status before and after a holiday are entitled to receive pay for the holiday. For additional information on leave entitlements, please refer to Chapter 12, Hours of Work, Legal Holidays, and Leave.

Employees should follow their agency’s established protocol for reporting time.


Subsequent Corrective or Adverse Action and Ending Enforced Leave

While a notice of corrective or adverse action may be issued at any time during the period of enforced leave, if the investigation into the allegations is still in progress or a proposed notice is issued near the expiration of the 180-day maximum for enforced leave, the agency may submit a written justification to the personnel authority demonstrating good cause to request an extension. If the personnel authority denies the extension, employees may be permitted to return to work after the expiration date of the approved enforced leave period.

If the basis for placing an employee on enforced leave fails to result in a corrective or adverse action, any annual leave or pay lost by the employee as a result of the enforced leave action shall be restored retroactively. This includes any annual or sick leave that would have been accrued during the time period.


Appeals

Employees who disagree with a determination of an enforced leave may appeal by filing a grievance according to the procedures outlined in Chapter 16 or their respective collective bargaining agreement (CBA). Enforced leave actions of ten or more days may be appealed to OEA. However, any grievance or appeal will not delay implementation of any final agency action.


Collective Bargaining Agreements

To the extent a provision of this issuance is incompatible with a negotiated CBA, the CBA provision shall apply.


References

Authorities

  1. Statutory Authority: D.C. Official Code § 1-616.54; and
  2. Regulatory Authority: 6-B DCMR § 1617, Corrective and Adverse Actions; Enforced Leave; and Grievances.

Applicability

The information in this instruction is not applicable to employees serving in a probationary period or temporary appointment in the Career Service; employees under the Office of the Chief Financial Officer; Attorneys in the Legal or Senior Executive Attorney Services; employees in the Executive Service; employees of the Board of Trustees of the University of the District of Columbia; or employees in the Management Supervisory Service, except as provided in 6-B DCMR § 1600.3.


Additional Information

For additional information concerning this instruction, please contact the DCHR Policy and Compliance Administration, by calling (202) 442-9700 or by sending an e-mail to dchr.policy@dc.gov.


Issued by Director Ventris C. Gibson, D.C. Department of Human Resources on May 17, 2021, 3 p.m.