Ask FELTG: What do you think about an agency putting an employee on notice leave following a proposed removal? Are you for it or against it?

September 16, 2025

Thanks for the question. According to OPM, notice leave – which was created as part of the Administrative Leave Act of 2016 – is permitted at an agency’s discretion, subject to statutory and regulatory requirements, when an agency determines an employee must be removed from the workplace during the notice period – which is the period beginning on the date the employee is provided a notice of proposed adverse action and ending on either (1) the effective date of the adverse action or (2) the date the agency notifies the employee that no adverse action will be taken.

According to 5 CFR § 630.1503, notice leave may be used when the agency determines that the continued presence of the employee in the workplace may:

  • Pose a threat to the employee or others;
  • Result in the destruction of evidence relevant to an investigation;
  • Result in loss of or damage to Government property; or
  • Otherwise jeopardize legitimate Government interests.

Before using notice leave, agencies must consider alternative options to avoid or minimize the use of paid leave, such as changing the employee’s duties or work location, or other alternatives such as:

  • Keeping the employee in a duty status by assigning the employee to duties in which the employee no longer poses a threat;
  • 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;
  • Carrying the employee in absent without leave status, if the employee is absent from duty without approval; and
  • 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).

If an agency determines the employee should be put on notice leave, it must inform the employee in writing – and we at FELTG believe that it could be written directly into the proposal notice. We also think that if an agency is proposing to remove an employee for performance or misconduct, keeping the employee at work would jeopardize legitimate government interests because the employee is already NOT performing his job, or is NOT following the rules. There’s probably no need attempt to determine who might be violent or who might steal something (a challenge in itself as humans can be notoriously unpredictable); keeping someone at work after they’ve done something that justifies removal is not in the best interests of the government. Of course, always check your agency’s policy to see what it says about use of notice leave. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.