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Office of the General Counsel

Date: May 25,1999
Matter of: [xxx]
File Number: S002609

OPM Contact: Paul Britner

As the result of inclement weather, and based on reports that the Director of the Office of Personnel Management (OPM) had approved the early release of employees, an acting branch head authorized administrative dismissal for the employees whom he was supervising. The acting branch head communicated this message to all employees in an e-mail, which stated, "All employees will secure due to inclement weather. OPM declared that civilians will be given administrative leave." In fact, the OPM Director had not authorized the release of any employees. Also, the agency noted that only the Commandant or his designee may grant administrative dismissals to employees and, therefore, that the acting branch head did not the authority to send the employees home. Consequently, the agency charged the employees whom the supervisor dismissed early with annual leave for the hours they were absent from work.

Annual leave is authorized for use on "days on which an employee would otherwise work and receive pay and are exclusive of holidays and nonworkdays established by Federal statute, Executive order, or administrative order." 5 U.S.C.  6302(a) Thus, when an employee is not at work as the result of an administrative order, an employee may not be charged annual leave. Although the term "administrative order" is not defined in the statute or in OPM's regulations, we conclude that the acting branch head's e-mail qualifies as such an order under this statute, and thus precludes the charging of annual leave for the hours of work missed by the employees who were sent home early.

When health and safety concerns prompt a supervisor to dismiss employees, it is in the government's interest that the employees follow that order. The risk of error that the order may be erroneous must fall on the person giving the order, not the employees who follow it. To the extent the acting branch head did not follow the designated chain-of-command or used poor judgment in determining that an emergency existed, that is a matter for disciplinary action or that employee's performance evaluation. In these circumstances, though, the agency may not charge the employees annual leave, and the employees' leave records should be amended accordingly.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

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