Office of the General Counsel

OPM Ref. #: S000512
February 3, 1998

[Agency address]

Dear [xxx]:

This replies to your September 11, 1997 letter requesting an opinion regarding the use of administrative leave in the circumstances described below.

You state that your agency has established a Health Promotion Program (HPP) to encourage physical fitness for the agency's employees. You note that a cost benefit analysis of programs such as the HPP, which measured such expenses as health insurance claims and sick leave, shows a return of $1.25 for every $1.00 spent. To promote this program, you would like to authorize employees to use official time to engage in physical exercise in one-hour sessions three times a week as part of a total fitness program You note that the employees' participation will be monitored to ensure compliance.

There is no specific statutory authority authorizing or proscribing an employee's release from duties without loss of pay or charge to leave, generally referred to as either excused absence or administrative leave. Rather, an agency's use of this type of leave is bounded by two equally vague statutes. The inherent authority to excuse employees from their duties is inferred from 5 U.S.C. 301, which states that an agency head "may prescribe regulations for the government of his department (and) the conduct of his employees . . . ." This authority, though, is not unfettered. The salaries of Federal employees are paid from appropriated funds, and appropriated funds "shall be applied only to the objects for which the appropriations were made except as otherwise provided by law." 31 U.S.C. 1301

The General Accounting Office (GAO) has weighed these statutes on several occasions. See 71 Comp. Gen. 469 (1992) and cases cited therein. We commend these decisions to you for their guidance, but, we note that GAO decisions are not binding on Executive agencies. From OPM's perspective, in the absence of any government-wide statutes or regulations, the only legal test for questions such as yours is whether the proposed use of administrative leave is a clear abuse of discretion or for an activity expressly prohibited by law. Ultimately, it is the responsibility of each department or agency head to balance support for employees' participation in activities such as physical fitness programs with the need to ensure that employees' work requirements are fulfilled and that agency operations are conducted efficiently and effectively.

Based on these standards, we have no objection to your use of administrative leave for the purposes described in your September 11 letter. We note that 5 U.S.C. 7901 authorizes agency heads to establish programs "to promote and maintain the physical and mental fitness of employees". The GAO has opined that this authority authorizes agencies to use appropriated funds to buy access for their employees to the exercise facilities of private fitness centers. 70 Comp. Gen. 190 (1991). Thus, your program is consistent with previously approved efforts to promote health and fitness.

Accordingly, we have no objection to the use of administrative leave as described in your request.

Very truly yours,

Paul Britner
Senior Attorney