[Code of Federal Regulations]
[Title 5, Volume 2, Parts 700 to 1199]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR752.404]

[Page 64-66]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
          CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (Continued)
 
PART 752--ADVERSE ACTIONS--Table of Contents
 
Subpart D--Regulatory Requirements for Removal, Suspension for More Than 
   14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
 
Sec. 752.404  Procedures.

    (a) Statutory entitlements. An employee against whom action is 
proposed under this subpart is entitled to the procedures provided in 5 
U.S.C. 7513(b).
    (b) Notice of proposed action. (1) The notice of proposal shall 
inform the employee of his or her right to review the material which is 
relied on to support the reasons for action given in the notice. The 
agency may not use material that cannot be disclosed to the employee of 
his or her representative or designated physician under Sec. 297.204(c) 
of this chapter to support the reasons in the notice.
    (2) When some but not all employees in a given competitive level are 
being furloughed, the notice of proposal shall state the basis for 
selecting a particular employee for furlough, as well as the reasons for 
the furlough.
    (3) Under ordinary circumstances, an employee whose removal or 
suspension, including indefinite suspension, has been proposed shall 
remain in a duty status in his or her regular position during the 
advance notice period. In those rare circumstances where the agency 
determines that the employee's continued presence in the workplace 
during the notice period may pose a threat to the employee or others, 
result in loss of or damage to Government property, or otherwise 
jeopardize legitimate Government interests, the agency may elect one or 
a combination of the following alternatives:
    (i) Assigning the employee to duties where he or she is no longer a 
threat to safety, the agency mission, or to Government property;
    (ii) Allowing the employee to take leave, or carrying him or her in 
an appropriate leave status (annual, sick, leave without pay, or absence 
without leave) if the employee has absented himself or herself from the 
worksite without requesting leave;
    (iii) Curtailing the notice period when the agency can invoke the 
provisions of Sec. 752.404(d)(1) of this part, the ``crime provision.'' 
This provision may be invoked even in the absence of judicial action if 
the agency has reasonable cause to believe that the employee has 
committed a crime for which a sentence of imprisonment may be imposed; 
or
    (iv) Placing the employee in a paid, nonduty status for such time as 
is necessary to effect the action.

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    (c) Employee's answer. (1) The agency shall give the employee a 
reasonable amount of official time to review the material relied on to 
support its proposal and to prepare an answer and to secure affidavits, 
if he or she is otherwise in an active duty status.
    (2) The agency shall designate an official to hear the employee's 
oral answer who has authority either to make or recommend a final 
decision on the proposed adverse action. The right to answer orally in 
person does not include the right to a formal hearing with examination 
of witnesses unless the agency provides one in its regulations in 
accordance with paragraph (g) of this section.
    (3) If the employee wishes the agency to consider any medical 
condition which may contribute to a conduct, performance, or leave 
problem, the employee shall be given a reasonable time to furnish 
medical documentation (as defined in Sec. 339.102 of this chapter) of 
the condition. Whenever possible, the employee shall supply such 
documentation within the time limits allowed for an answer. After its 
review of the medical documentation supplied by the employee, the agency 
may, if authorized, require a medical examination under the criteria of 
Sec. 339.301(a)(3) and the procedures of Sec. 339.302 of this chapter, 
or otherwise, at its option, offer a medical examination in accordance 
with the criteria of Sec. 339.301(d) and procedures of Sec. 339.302 of 
this chapter. If the employee has the requisite years of service under 
the Civil Service Retirement System or the Federal Employees Retirement 
System, the agency shall provide information concerning disability 
retirement. The agency shall be aware of the affirmative obligations of 
the provisions of 29 CFR 1613.704, which require reasonable 
accommodation of a qualified employee who is handicapped.
    (d) Exceptions. (1) Section 7513(b) of title 5 of the United States 
Code authorizes an exception to the 30 days' advance written notice when 
the agency has reasonable cause to believe that the employee has 
committed a crime for which a sentence of imprisonment may be imposed 
and is proposing a removal or suspension (including indefinite 
suspension). The agency may require the employee to furnish any answer 
to the proposed action, and affidavits and other documentary evidence in 
support of the answer, within such time as would be reasonable, but not 
less than 7 days. When the circumstances require that the employee be 
kept away from the worksite, the agency may place him or her in a 
nonduty status with pay for such time as is necessary to effect the 
action.
    (2) The advance written notice and opportunity to answer are not 
necessary for furlough without pay due to unforeseeable circumstances, 
such as sudden breakdowns in equipment, acts of God, or sudden 
emergencies requiring immediate curtailment of activities.
    (e) Representation. Section 7513(b)(3) of title 5 of the United 
States Code provides that an employee covered by this part is entitled 
to be represented by an attorney or other representative. An agency may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from his or official position would 
give rise to unreasonable costs or whose priority work assignments 
preclude his or her release.
    (f) Agency decision. In arriving at its decision, the agency shall 
not consider any reasons for action other than those specified in the 
notice of proposed action. It shall consider any answer of the employee 
and/or his or her representative made to a designated official and any 
medical documentation furnished under paragraph (c) of this section. The 
agency shall deliver the notice of decision to the employee at or before 
the time the action will be effective, and advise the employee of appeal 
rights.
    (g) Hearing. Under 5 U.S.C. 7513(c), the agency may in its 
regulations provide a hearing in place of or in addition to the 
opportunity for written and oral answer.
    (h) Applications for disability retirement. Section 831.501(d) of 
this chapter provides that an employee's application for disability 
retirement shall not preclude or delay any other appropriate personnel 
action. Section 831.1203 of this chapter sets forth the basis under 
which an agency shall file

[[Page 66]]

an application for disability retirement on behalf of an employee.

[45 FR 46778, July 11, 1980, as amended at 48 FR 19349, Apr. 29, 1983; 
48 FR 45526, Oct. 6, 1983; 49 FR 1330, Jan. 11, 1984; 53 FR 21623, June 
9, 1988]