[Code of Federal Regulations]

[Title 5, Volume 2]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 5CFR752.404]



[Page 63-64]

 

                    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.

    (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.



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    (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 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]



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