This chapter contains the policy for taking disciplinary and adverse actions in the Department of Veterans Affairs (VA). Unless otherwise indicated, the chapter applies to all VA employees appointed under title 5 U.S.C., and under title 38 U.S.C., sections 7401(2) and (3). .
Title 5 U.S.C. chapters 73 and 75; MP-5, Part 1, Chapter 351,
Reduction in Force; 6 CFR part 752; MP-5, Part 1, Chapter 792, Health Services;
and 38 U.S.C. 7401(2) and (3).
a. The public interest requires the maintenance of high standards of employee integrity, conduct, effectiveness, and service to the public. When such standards are not met, it is essential that prompt and just corrective action be taken. The policy of VA is to maintain standards of conduct and efficiency that will promote the best interests of the service. Disciplinary and adverse actions shall be governed by these basic principles: (1) An employee shall be informed in writing honestly and specifically why the action is being brought against him or her. (2) An employee shall be given a reasonable opportunity to present his or her side of the case. (3) The employee and representative shall have assurance of freedom from restraint, interference, coercion, discrimination, or reprisal in discussing, preparing, and presenting a defense. b. In taking actions covered by this chapter, like penalties will generally be imposed for like offenses (see app. D for further discussion). However, supervisors should give consideration to several factors when determining what action is appropriate, including the nature and-gravity of the offense, the existence of either mitigating or aggravating circumstances, the frequency of the offense, and the employee's position. Adverse actions against employees (excluding employees in the Senior Executive Service (SES)) will be taken only for such cause as will promote the efficiency of the service. Adverse actions against SES employees will be based only on misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. c. The adverse action procedures described in this chapter will be used for all actions defined as an adverse action in and covered under 5 CFR Part 752. d. An action covered under this chapter must be in conformance with the merit system principles in 5 U.S.C. 2301 and must not be based on any of the prohibited personnel practices listed in 5 U.S.C. 2302. Accordingly, actions covered under this chapter may not be based on prohibited discrimination because of race, color, religion, sex, national origin, age, or disability. Except when required by statute, an action covered under this chapter must not be taken against an employee because of marital status or partisan political reasons. Actions covered under this chapter must not be taken as reprisal for the proper exercise of an employee's legal or administrative appeal rights. The Whistleblower Protection Act of 1989 (Public Law No. 10 1 - 1 2) specifically affords protections and entitlements to employees who allege reprisal for having engaged in whistleblowing activities. e. Any applicable provisions of a negotiated labor-management agreement should be consulted to determine the possible effect on the processing of disciplinary/adverse actions, notices of such actions, and employee rights. f. Any VA employee may review this chapter and related material
by contacting the Human Resources Management Office.
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a. Grade. A numerical level assigned to a position under a position classification or job grading system. b. Pay. The rate of basic pay fixed by law or administrative action for the position held by an employee. c. Day. Day means calendar day. d. Active duty status. Pay status including authorized overtime, holiday pay, or premium pay. e. Disciplinary Action. An action taken to correct misconduct or other offenses and to enforce prescribed rules of behavior. It includes admonishments, reprimands, and suspensions of 14 days or less. f. Adverse Action. A removal, separation for disability, suspension for more than 14 days, furlough for 30 days (22 non-continuous days) or less, or reduction in grade or pay effected by management for either disciplinary or non-disciplinary reasons, except for those actions which are excluded by law or regulation (see 5 CFR, pt, 752). g. Proposing Official. The management official who issues a notice of proposed disciplinary or adverse action (i.e., any proposed suspension, removal, reduction in grade or pay, or furlough for 30 days or less), h. Deciding Official. The management official designated to make the final decision on a disciplinary or adverse action. i. Furlough. The placing of an employee in a temporary
status without duties and pay due
j. Official Time. Time granted to an employee to review the material relied on to support a proposed action, to prepare an answer, and to secure affidavits, If the employee is otherwise in a duty status. k. Notice Period. The period of time that begins the day after the date an employee receives a written proposal of a disciplinary or adverse action and which ends on the effective date of the action, if effected. l. Reduction in Grade. An employee is moved to a position of lower grade under the general schedule system or Federal wage system. m. Reduction in Pay. An employee's rate of basic pay is reduced involuntarily, that is, not requested by the employee for personal reasons or benefit. Reduction in pay does not include the involuntary loss of any differentials such as standby pay, night work, overtime, hazardous duty, or holiday pay, n. Suspension. The placement of an employee, for disciplinary reasons, in a temporary status without duties and pay, o. Indefinite Suspension. The placement of an employee in a non-duty, non-pay status for a temporary period of time pending investigation, inquiry, or further agency action. p. Removal. The involuntary separation of a non-probationary employee for disciplinary or non-disciplinary reasons, q. Individual with a Disability. One who (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such Impairment, or (3) is regarded as having such an impairment (29 CFR 1614,203). r. Qualified Individual with a Disability. With respect to employment, an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used, (1) meets the experience and/or education requirements of the position or (2) meets the criteria for appointment under one of the special appointing authorities for people with disabilities. s. Paid Non-Duty Status. Compensating an employee while
not on duty.
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a. Administration heads, Assistant Secretaries, other key officials, and Deputy Assistant Secretaries, and field facility Directors are responsible for: (1) Administering policy concerning disciplinary and adverse actions in conformance with requirements of this chapter and any applicable labor-management agreements; and reviewing existing policies and recommending appropriate changes. (2) Delegating to supervisors appropriate authority for the direction and discipline of employees under their jurisdiction and assuring proper supervisory training. (3) Ensuring that supervisors properly exercise their disciplinary authority. (4) Ensuring that appropriate mechanisms are in place to inform employees of VA policy concerning disciplinary and adverse actions and where this chapter may be reviewed. b. The Deputy Assistant Secretary for Human Resources Management is responsible for: (1) Developing departmental disciplinary and adverse action policy. (2) Providing technical advice and guidance to management officials and field station personnel officials. c. Supervisors are responsible for: (1) Gathering and analyzing the facts concerning each possible disciplinary or adverse action and documenting these facts. (2) Initiating appropriate and timely disciplinary or adverse actions. d. The Human Resources Management Officer is responsible for: (1) Assisting supervisors and management officials at all levels with disciplinary and adverse action matters; interpreting regulations and statutes; recommending sound human resources management practices; reviewing existing policies and procedures and recommending appropriate changes. (2) Reviewing disciplinary and adverse actions prior to issuance to ensure compliance with existing laws and regulations and advising the decision official as necessary. (3) Advising employees and answering their questions regarding their rights in disciplinary and adverse action matters, and providing guidance on interpretations of disciplinary and adverse action procedures, regulations and statutes. (4) Ensuring that all employees are made aware of VA standards of ethical conduct and related responsibilities as well as other laws, rules, and regulations governing VA expectations of acceptable conduct. e. Employees are responsible for: (1) Meeting standards of conduct as required by laws, rules, regulations, and policies. (2) Obtaining advice from authoritative
agency officials (supervisors, Human Resources
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a. Administration heads, Assistant Secretaries, other key officials, and Deputy Assistant Secretaries, and field facility Directors, as appropriate, are responsible for designating in writing management officials who may propose and decide actions covered in this chapter, and for ensuring that supervisory employees under their jurisdiction are made aware of such designations. b. Authority. Officials who may issue admonishments and reprimands, and propose and decide suspensions of 14 calendar days or less, and adverse actions will be as follows: (1) Admonishment. The official who may issue a letter of admonishment will normally be the employee's immediate supervisor or in the supervisory line. (2) Reprimand. The official who may issue a letter of reprimand to an employee must be at the division or service chief level in a field station, or at the division chief level or above in Central Office. (3) Suspension of 14 Calendar Days or Less. The official who may issue a letter of proposed suspension of 14 calendar days or less to an employee must be at the division or service chief level or above in a field station, or at the division chief level or above in Central Office. A final decision on a proposed suspension of 14 calendar days or less will be made by the proposing official, or an official at any level in the supervisory line above the official who proposed the action. The Secretary or designee retains the authority to make the final decision on the suspension of employees occupying positions centralized to the Secretary. (4) Furloughs. MP-5, part 1, chapter 351 identifies officials who may propose and decide furloughs. (5) Adverse Action. (a) Proposed Adverse Actions. The official who may issue a letter of proposed adverse action to an employee must be at the division or service chief level or above in a field station, or at the division chief level or above in Central Office. (b) Decisions on Adverse Actions. The official who may issue a letter of decision must be at the Director level in a field station or at the service director level or above in Central Office. The Secretary or designee retains the authority to make the final decision on adverse actions involving employees occupying positions centralized to the Secretary, c. Actions resulting from a Central Office investigation, with the exception of those conducted by the Office of Inspector General (OIG), will be proposed and decided by officials in Central Office. Such authority may be delegated on a case by case basis to the field facility director. Actions based on OIG investigations may be taken at the field station level in coordination with the appropriate organizational elements in Central Office. d. Consistent with the restrictions provided in subparagraphs b and c above, field facility directors are responsible for designating officials who may propose and/or decide disciplinary and adverse actions involving employees in the field occupying non-centralized positions. Administration heads, Assistant Secretaries, other key officials, Deputy Assistant Secretaries, and field facility Directors are responsible for designating officials who may propose and/or decide disciplinary and adverse actions involving: (1) employees under their jurisdiction occupying positions centralized to the Secretary (except final decisions on suspensions of 14 calendar days or less and adverse actions); (2) employees under their jurisdiction occupying positions centralized to an Administration head or Assistant Secretary; (3) employees in Central Office under their respective jurisdictions; and, (4) employees in the field who are not under the supervision of a field facility director.
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a. Inquiry and Investigation (1) In cases involving a potential disciplinary or adverse
action, inquiry will be made into the incident or situation as soon as
possible to obtain the facts and determine what action, if any, is warranted.
Except in very rare or unusual circumstances, if the employee desires a
representative, the investigator will wait a reasonable period of time
before proceeding. Ordinarily, a preliminary inquiry will be made
by the appropriate line supervisor. A further investigation may be
warranted depending on the nature and seriousness of the incident.
Information concerning the matter will be sought from the employee who
is alleged to have committed the offense and from any other persons who
may have pertinent information about the case. The resulting information
will be documented. Signed statements, preferably under oath, are
the best form of documentation and should be obtained, when possible, from
employees interviewed. The authority to take sworn statements must
be exercised in accordance with 38 U.S.C. 5711 and its implementing regulations.
However, failure to obtain a statement from the employee involved will
not, in and of itself, serve to void the action, particularly where sufficient
information is otherwise obtained from the employee, or the nature of the
situation makes it
(2) All employees are required to provide full and truthful answers during any inquiry or investigation. Failure to do so may be grounds for disciplinary or adverse action. The only time employees are entitled to remain silent is if they may potentially incriminate themselves in a criminal offense. Employees claiming such a right must state this as their reason in order for the right to apply. The assistance of the Regional Counsel or General Counsel, as appropriate, will be obtained in determining whether immunity from prosecution may be granted. Immunity and the extent of immunity will be reduced to writing and provided to the employee. (Also see subparagraph e. below.) b. Status of Employee Pending inquiry or investigation (1) Duty Status. Ordinarily, the employee will be retained in a pay and active duty status in his or her position at current grade and salary during any inquiry or investigation. (2) Detail, Leave or Paid Non-Duty Status. In those instances where it is determined that the employee's continued presence at his or her worksite during an inquiry or investigation might pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the following alternatives may be considered: (a) Detailing the employee to other duties where he or she is no longer a threat to safety, to VA's mission, or to Government property; (b) Allowing the employee to take leave, (annual, sick, leave without pay), or carrying him or her in an absent without leave status if the employee has absented himself or herself from the work-site without requesting leave); (c) As a last resort, placing the employee in a paid non-duty status pending completion of the inquiry or investigation. Although Civil Service regulations grant agencies the authority to place employees in a non-duty status with pay during the advance notice period of a proposed removal under the limited circumstances described in this paragraph, these regulations do not address the status of an employee during a period of inquiry or investigation or during the notice period of a proposed indefinite suspension. In those instances where management determines that an employee's continued presence at the worksite might pose a threat to the employee or others, result in loss of, or damage to, Government property, or be injurious to some other legitimate Government interest, or when a proposed indefinite suspension is issued in conjunction with the crime provision, managers may place the employee in a brief period of non-duty status with pay for the period of time necessary to conduct an inquiry or investigation and prepare charges, including the advance notice of a proposed indefinite suspension. Care should be taken to ensure that this is for the shortest practicable period. (3) Indefinite Suspension. (See par. 8f of this sec.) c. Evidence File. If a proposed adverse action is contemplated, an evidence file must be established before the notice is issued to the employee. The file must contain all available evidence upon which the notice of proposed action is based, and which supports the reasons in that notice (including records of past disciplinary action and related material, if such a record forms part of the basis for the action proposed). It must also include any written summary of employee's oral reply and/or employee's written reply. Normally the evidence file will contain an index for easier reference to documents. Additional evidence acquired after the issuance of a proposed adverse action notice may be added without necessitating re-issuance of the notice unless the additional evidence forms the basis for initiating new reasons for proposing the action. However, the employee must be provided with copies of any material when it is added to the evidence file. Any use or disclosure of a record or information must comply with legal requirements for disclosure. d. VA Beneficiary Records. The assistance of the Regional Counsel or General Counsel, as appropriate, should be obtained when questions arise concerning the use of VA beneficiary records in taking an action covered under this chapter. Specifically, the use of VA beneficiary records must be in accordance with the guidelines of confidentiality provided in 38 U.S.C. 5701, 5705, and 7332; and the Privacy Act at 5 U.S.C. 552a. e. Official Investigation Reports or Official Inquiries (1) It is not necessary for a supervisor or other appropriate official to inquire into an incident in accordance with the above instructions where sufficient information is available from other official sources. These sources include, but are not limited to: reports of a Central Office or Office of the Inspector General investigation, reports of a field examination conducted by a representative of the Office of Regional Counsel, or other official investigations conducted under the authority of MP-I, part l, chapter 2. Where the information appears to be inadequate, the Human Resources Management Officer should be consulted concerning the necessity for the development of additional information. The same principle also applies to official investigations of other government agencies, whether Federal, state or local, if the agency allows the use of the investigation, or part of it, or extracts from it. In cases involving criminal matters, it is the policy of VA to cooperate with appropriate law enforcement agencies. In obtaining evidence and/or coordinating such matters, the assistance of the Regional Counsel or General Counsel, as appropriate, should be obtained. (2) When management relies on facts developed from an official investigation or other official inquiry to support a proposed adverse action, only the information relied upon will be included in the evidence file. When using official information, care must be exercised to extract only that information which is being relied on to support the reasons in a proposed adverse action. (3) Title 38 CFR part 17 defines the VA Medical Quality
Assurance Program, and the Health Services Review Organization (HSRO),
and provides confidentiality for certain quality assurance
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a. General. After determining the facts in a case, the responsible official authorized to initiate action should consult the table of offenses and penalties contained in appendix D of this chapter. Any extenuating or mitigating circumstances or other contributing factors which may have some bearing on the situation, including past record, should be considered in determining the action to be taken. The initiating official will consult with the Human Resources Management Officer regarding the propriety of the disciplinary or adverse action being considered, b Substance Abuse/Medical Considerations (1) In relating alcoholism and drug abuse problems to disciplinary policies and practices, it is important to consider non-disciplinary procedures aimed at rehabilitation. However, if the employee refuses to accept assistance offered through the program or to otherwise correct performance, disciplinary measures will be invoked on the basis of the specific misconduct of the employee, (2) In offering rehabilitative assistance, the employee's supervisor need not confront the employee with the supervisor's belief that the employee has a drinking or drug abuse problem, The supervisor must make the employee aware in general terms that a problem exists affecting his/her conduct, and recommend that the employee participate in a rehabilitation program that is available. Casual suggestions to the employee that the Department would be willing to assist the employee with any problems he/she may have are not a sufficient attempt at counseling to constitute reasonable accommodation. The counseling must be specific with the supervisor recommending that the employee participate in a rehabilitation or counseling program, Should the employee ignore the offer of assistance and the performance or conduct problem continues, It may be necessary to give the employee a "firm choice", between accepting treatment or facing the consequences. A sample firm choice letter is contained at appendix C. This letter should be modified to suit your particular circumstances. (3) Referrals under the Employee Assistance Program (EAP)
should be made in writing and as early as possible when the supervisor
has a conduct or performance related reason to believe the employee has
an alcohol or drug abuse problem which is causing the deficiencies.
Written documentation should be maintained of any meetings between the
supervisor and the employee to show that an offer of assistance was made.
Copies of such documentation should be given to
(4) There may be situations where a meaningful offer of assistance is not possible, and appropriate action such as a proposed removal is required. Examples include situations where an employee is incarcerated for an extended period of time, or where the act of misconduct is so egregious (e.g., patient abuse) as to require that the employee be removed immediately from duty status during the period of an investigation and any subsequent proposed adverse action. Normally, an employee will be maintained in a paid duty status during the period between proposal and decision letters. There are circumstances as outlined in law or governing government-wide regulations that allow management to make exception to this provision. In such instances, management must be prepared to demonstrate before a third party that accommodating the employee would have imposed an undue hardship upon the facility where the employee works. (5) Continuing misconduct while an employee is participating in the program may be dealt with by taking appropriate disciplinary or adverse action. However, the length of time in the program, the type of rehabilitation program provided to the employee, and the employee's demonstrable progress in treatment will be considered as possible mitigating or aggravating factors when deciding on the appropriate action. (6) When an employee raises the issue of an alcohol or drug related problem as an affirmative defense at the point when a formal adverse action has been proposed, management must consider its reasonable accommodation requirements before acting on the proposal. However, if the action is effected, management should be prepared to demonstrate (as appropriate) during any third party review that: (a) The employee has never raised the issue until receipt of the notice of proposed action, and has failed to prove the existence of a substance abuse problem; (b) There is no nexus (or connection) between the employee's alcohol or drug problem and the specific incident(s) or reasons on which the proposed action is based; (c) The employee has refused previous offers of rehabilitative assistance; (d) The employee's conduct and/or performance has failed to improve despite previous participation in the EAP; (e) Efforts to reasonably accommodate the employee would impose an undue hardship on the operation of the Department; or, (f) The employee does not meet the regulatory criteria of an employee with a disability. (7) If management has any reason to believe that the employee's claim may be a pretext to delay a proposed adverse action, it may request documentation to show the presence of an alcohol or drug dependence problem. The documentation must consist of expert evidence on the existence of a substance abuse problem at the time of the misconduct, and may include: (a) Objective clinical findings such as test results and observation of physical signs; (b) Medical diagnoses based on evaluation; or (c) Evaluation and assessment of a non-medical expert in the field of alcohol or drug rehabilitation, such as a qualified Employee Assistance Program Counselor. (8) For further information and discussion on alcohol and drug problems and the Employee Assistance Program, see MP-5, part 1, chapter 792, appendix A. Because of periodic changes in case law regarding reasonable accommodation for employees with alcohol and drug abuse problems, supervisors should consult with the Human Resources Management Service/Division prior to confronting an employee with a suspected problem. (9) Executive Order 12564 on the Drug-Free Federal Workplace generally requires agencies to initiate disciplinary or adverse action against any employee who is found to use Illegal drugs. (10) Last Chance and Abeyance Agreements. Management may enter into last chance or abeyance agreements with employees who have an alcohol or drug abuse problem. These agreements are generally entered into after a disciplinary suspension or adverse action has been proposed, and offer the employee an opportunity to participate in a rehabilitation program while the proposed action or Implementation of the decision is held in abeyance. The final decision on the proposed action is based on whether the employee's participation is successful, and/or whether further misconduct occurs. A primary benefit of last chance or abeyance agreements is that the agency's reasonable accommodation efforts are clearly documented for the record, Since case law in this area is constantly evolving, and there are no set formulas for last chance or abeyance agreements, officials involved in preparing such agreements should contact the Regional Counsel or General Counsel, as appropriate, or the Office of Human Resources Management (051) in VA Central Office, when questions arise. Sample abeyance agreements are contained in appendix C to this chapter. (a) There is no set formula for abeyance or last chance agreements: 1 they are tailored to the individual situation; 2 they are fair, and provide some potential consideration or benefit to the employee (generally the agency's agreement to withhold an action which it could take); 3 they can be imposed unilaterally by the agency, or 4 negotiated with the employee or his representative, (if they involve a waiver of rights, the employee must agree); 5 they can be imposed at several stages of the adverse action process: after a proposal, after a decision, or even after the action has been effected; and, 6 if the conditions are not met, the agency can take immediate action (no need to wait until the end of the period, or to give a new notice). (b) Abeyance and last chance agreements should contain at least the following: 1 a time limit and conditions tailored to the situation; 2 a clear statement of all the agency's requirements of the employee
including satisfactory
3 a description of behaviors that will be considered evidence of compliance or failure to comply with the requirements; and, 4 an explanation of what the agency will do if the employee falls to comply, and what the agency will do if the employee complies. (c) When an action is taken based on violation of an abeyance
agreement, the following is
1 the violation should not become part of the charges, but should be used only to show that the employee violated the agreement and thus triggered the agency's action; 2 the letter to the employee should clearly describe how the employee violated the provisions of the agreement (MSPB will require proof of violations); and, 3 .a the agency should proceed on the basis of the original Charges only. c. Non-Disciplinary Reasons Resulting in Removal, or Reduction in Grade or Pay. (See sec. C, par. 5d, of this ch.) d. Reductions in Grade or Pay, or Removal Based on a Combination of Performance and Conduct Related Factors. (See sec. C, par. 5e, of this ch.) e. Involuntary Leave. The authority of agencies to impose involuntary leave status on employees has been significantly curtailed by several Merit Systems Protection Board (MSPB) decisions. These decisions have held that the use of enforced leave as an alternative when dealing with employees who wish to work but appear to be mentally or physically unable to do so and who pose a safety threat to themselves or others in the workplace, constitutes a disciplinary suspension and is thus an appealable action, if the suspension exceeds 14 calendar days. Otherwise, the action is grievable. However, when an employee, because of vicious or intemperate conduct or illness (mental or physical), is regarded as presenting an immediate threat to Government property or to the well-being of the employee, fellow workers, or the general public, several other alternatives may be considered as circumstances require; detail to other duties, sick or annual leave with the employee's consent, or non-duty paid status for a limited period, any of which may present some immediate relief to the situation. (See par. 7b(2)above.) f. Indefinite Suspension. In cases where management foresees a need for considerable time to complete its inquiries, medical examinations, or investigation, and make a determination in the case, consideration may be given to imposing an indefinite suspension. The basis for the indefinite suspension would be the need to have the employee away from the worksite pending inquiry, investigation, or the medical examination process. During the advance notice period of a proposed indefinite suspension, the employee may be placed in a non-duty paid status, and in cases involving the commission of a crime, the crime provisions procedure may be followed. (See sec. C, par. 14, of this ch.) An indefinite suspension must specify a completion point (e.g., acquisition of medical documentation sufficient for management to make an informed decision). The employee may not be suspended without such a completion point set out in the proposal, and the suspension cannot continue once the completion point is reached. At the completion of the suspension, management must either return the employee to his or her position, detail or reassign the employee to another position, remove the employee for either disciplinary or non-disciplinary reasons related to inability to perform, or take other appropriate administrative action. Due to the changing nature of case law in the area of indefinite suspensions, officials involved in such actions should consult with the Regional or General Counsel, as appropriate, or the Office of Human Resources Management (051) in Central Office prior to initiating action. g. Progressive Discipline. Using the least severe
action which, in the supervisor's judgment, will most likely correct the
employee's misconduct is a commonly recognized principle. It is most
applicable in repeated infractions of a minor nature (e.g., brief tardiness).
However, it does not prohibit issuance of a more severe penalty (e.g.,
suspension or removal) prior to issuance of each and every lesser penalty.
For example, it is not always appropriate to issue an admonishment and/or
a reprimand prior to issuance of a suspension or removal. Sound supervisory
discretion and judgment must be applied in all cases fully considering
any aggravating and/or mitigating circumstances. The concept of progressive
discipline and the recommended guidance provided by the Table of Offenses
and Penalties (see app. D) is not intended to preclude the exercise
of discretion in determining appropriate action, but rather to serve as
an aid to maintaining consistency. The facts of the case, degree
of willfulness of the employee's violation of VA conduct rules, and the
seriousness of the misconduct and its resultant impact on VA operations,
may be examples of reasons for necessitating consideration of more severe
discipline (e.g., suspension without prior admonishment or reprimand).
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