Agencies are violating the law on administrative leave, and taxpayers are paying the price

The law is clear: administrative leave must be short, justified, and used sparingly. But federal agencies—and the Office of Personnel Management—are using it as a legally dubious and enormously expensive workaround to sidestep due process and override clear congressional intent. The scale is staggering. In the first four months of 2025, more than 100,000 federal employees have been placed on paid administrative leave. This figure includes participants in the deferred resignation program (DRP), court-ordered-reinstated probationary employees, DEIA employees, and large swaths of employees placed on leave pending reductions-in-force (RIFs). All are collecting full salaries while being explicitly barred from doing any work.

OPM has defended this use of administrative leave as a lawful exercise of agency discretion. However, longstanding precedent and legislative reform efforts suggest otherwise. Agencies lack the authority to place employees on extended paid leave for any reason—let alone for the explicit purpose of impairing their own operations.

Statutory Limits on Leave

Administrative leave has been an attractive tool for agencies because it avoids triggering the rights associated with adverse actions under the Civil Service Reform Act (CSRA). Paid leave does not constitute suspension, removal, furlough, or job reduction, so employees have no access to appeal rights. However, this workaround is precisely what Congress sought to eliminate with the Administrative Leave Act of 2016.

Passed in 2016 following a GAO report documenting widespread misuse of administrative leave, the Act imposes a 10-workday annual cap on administrative leave and delegates regulatory implementation to OPM. At the same time, Congress created new, distinct categories of paid leave—investigative leave, notice leave, and weather/safety leave—to address specific use cases that had previously been lumped under generic administrative leave.

OPM’s implementing regulations initially appear to follow the Act’s mandate. However, they define the term “placed” on administrative leave to refer only to leave used “for the purpose of conducting an investigation.” The result is that OPM’s 10-day limit applies only to investigations. For all other cases, including the arbitrary placement of employees who pose no threat to agency functions or workplace safety, the Act’s cap becomes irrelevant.

This interpretation is impermissible for three reasons. First, the statute’s plain language does not support OPM’s reading. Congress created “investigative leave” as a distinct category, with its own duration cap, separate from the 10-day limit applicable to administrative leave. The structure of the Act makes clear that the cap on administrative leave was meant to apply broadly, not just to investigations. If Congress intended the cap to apply only in investigative contexts, it would have said so. OPM’s reading collapses the two categories into one and effectively nullifies the administrative leave limitation.

Second, the legislative history confirms that Congress intended the limitation to be interpreted broadly. The Senate version of the bill, which became law, deliberately excluded language that would limit administrative leave for misconduct issues. The report accompanying the bill stated that the 10-day cap was meant to codify and constrain the informal excused absences agencies had been granting, and made clear that agencies could no longer provide such leave at their discretion beyond what was explicitly articulated by statute. The legislative history makes clear that the goal was to eliminate agency discretion over extended paid leave, regardless of the agency’s rationale for such leave.

Third, OPM’s reinterpretation exceeds its delegated authority. OPM was authorized only to implement the law, not rewrite it. An agency cannot interpret a statute in a way that guts its core safeguard. By defining “placed” to apply only in investigative contexts, OPM has rendered the cap meaningless for all other uses. Even on its own terms, OPM’s logic breaks down. Under this reading, an agency could place a problematic employee on indefinite paid leave without triggering any statutory limitation, so long as the agency does not initiate an investigation. In effect, OPM’s rule incentivizes agencies to sweep difficult cases under the rug without addressing them—a concern that Congress specifically acted to prevent. Together, the Act’s plain text, the legislative history, and the limits of OPM’s delegated authority point to the same conclusion: OPM’s interpretation is unlawful. Agencies are legally bound to observe a strict 10-day limitation on administrative leave. Yet since February 2025, tens of thousands of employees have been placed on leave in direct contravention of that mandate.

Agency Compliance Date

In addition to taking the position that extended administrative leave is lawful under the Administrative Leave Act, OPM has also suggested in a footnote that agencies are not required to comply with the Act’s provisions until the regulatory compliance date of Sept. 13, 2025. However, longstanding precedent makes clear that extended leave has never been permitted. The absence of explicit prohibition does not confer authority. Agencies must always act within the bounds of statute. Since the 1970s, Comptroller General decisions have consistently held that prolonged paid leave exceeds agencies’ authority, even finding two consecutive days unlawful when not in furtherance of an agency function. Internal policies attempting to systematically authorize such leaves were deemed “tantamount to legislating.” The Merit Systems Protection Board has likewise struck down leave periods lasting months, adopting the same logic. Well before the Act, the law on this matter was settled. Administrative leave must be brief and directed toward furthering, not frustrating, agency operations.

Agencies are applying administrative leave in ways long held to be impermissible, at considerable taxpayer expense. The law was already settled, and Congress acted again to close this so-called “loophole,” to the extent one ever existed. OPM’s current interpretation finds no support in either statutory text or controlling precedent. It is time for oversight bodies to enforce the restriction that judicial decisions have long recognized and Congress has explicitly affirmed, even in the absence of further legislative intervention.

Madeline Materna is a legal scholar currently pursuing a PhD in Political Science at Stanford University. She serves as a research assistant with Reform for Results, a policy initiative housed at Stanford’s Center on Democracy, Development and the Rule of Law (CDDRL). As part of its Personnel Reform sub-group, her work focuses on legal and structural barriers within the federal civil service, with an emphasis on strengthening merit-based hiring and accountability systems. She earned her JD from Emory University School of Law and is a member of the Illinois Bar.