Quick Definition:
An indefinite suspension places a federal employee in a non-duty, non-pay status without a set end date, typically pending an investigation, medical determination, or security clearance action.
Indefinite suspensions are a unique and serious issue in federal employment law, particularly for positions requiring a security clearance. As a nationwide federal employment attorney, We regularly advise federal employees across the United States who have been proposed for an indefinite suspension due to clearance, criminal or medical-related issues.
These types of cases can place employees in professional and financial limbo for extended periods, often with limited due-process protections and unclear timelines for resolution. Legal counsel is important.
What Is an Indefinite Suspension in Federal Employment?
An indefinite suspension is considered a non-disciplinary adverse action used by federal agencies when an employee is deemed unable to perform the essential functions of their position.
Federal agencies may impose an indefinite suspension for one of three reasons and the suspension remains in place until the issue is resolved, with no defined end date.
From a federal employment attorney’s perspective, these actions are among the most disruptive and legally complex employment measures agencies can take.
When Agencies Use Indefinite Suspensions
Federal agencies generally use indefinite suspension in three major scenarios:
1. Criminal Investigations or Charges
If an agency has reasonable cause to believe an employee committed a crime that could lead to imprisonment, it may place the employee on indefinite suspension while the criminal matter is pending.
2. Medical or Fitness-for-Duty Concerns
An agency may suspend an employee if continued presence in the workplace could pose a danger due to medical issues — pending a fitness-for-duty determination.
3. Security Clearance Suspensions
If an employee’s access to classified information — essential to their job — is suspended or revoked, the agency may impose an indefinite suspension pending the clearance decision.
These situations must be supported by legitimate agency reasons and tied to the efficiency of the service, a legal standard in federal adverse actions.
Why Indefinite Suspensions Are Common in Federal Employment
Unlike private-sector employment, many federal positions require ongoing eligibility for access to classified or sensitive information. As a result, federal employees are uniquely vulnerable to indefinite suspensions tied to:
Pending security clearance investigations
Clearance suspensions or proposed revocations
Adjudication delays
Allegations that remain unresolved
Even when allegations are disputed or unproven, agencies often proceed with suspension based solely on clearance uncertainty.
Types of Indefinite Suspensions
Federal employees may be placed on:
✔ Indefinite Suspension With Pay
Often used when the agency temporarily removes an employee from duty but continues pay status, usually via a short memorandum.
✔ Indefinite Suspension Without Pay
More serious — requires formal notice and due process. It removes the employee from both duty and pay status until the triggering conditions are resolved.
Most concerns arise when the suspension is without pay, due to the financial impact on a federal employee.
How Indefinite Suspensions Differ From Other Federal Adverse Actions
Indefinite suspensions differ significantly from removals or fixed-term suspensions:
No predetermined end date
Often framed as non-disciplinary
Frequently involve national security authority
May limit MSPB appeal rights
Because clearance, criminal and medical issues frequently take months or years, indefinite suspensions can quietly become long-term employment separations.
Due Process and Legal Rights Under Federal Employment Law
Indefinite suspensions raise serious due-process concerns. While federal employees are entitled to procedural protections under civil service laws, agencies often argue that those protections are reduced when national security or clearance authority is invoked.
As nationwide federal employment attorneys, we routinely see agencies assert broad discretion even when:
The underlying allegations are contested
No final clearance decisions or criminal charges have been issued
Employees are denied access to critical evidence
This makes early legal strategy essential.
Appealing an Indefinite Suspension
Federal employees may appeal an indefinite suspension to the Merit Systems Protection Board (MSPB). When doing so, they should understand:
The agency must demonstrate that it had reasonable cause for the suspension.
The suspension must promote the efficiency of the service and have an ascertainable condition that will end it.
If procedural due process was denied — for example, insufficient notice or an unclear basis — the MSPB may reverse or remand the action.
Additional guidance is available through the MSPB appeals process for federal employees.
The Real-World Impact on Federal Employees
Federal employees placed on indefinite suspension often experience:
Extended loss of income
Career stagnation or derailment
Clearance damage affecting future employment
Significant emotional and financial stress
Many employees assume the suspension will be short. In reality, clearance delays are common, and prolonged suspensions are the norm.
Why Federal Employees Nationwide Seek Legal Counsel Early
Federal employment law—and especially security clearance law—is highly specialized. Employees facing indefinite suspension benefit from early legal representation to:
Protect procedural rights
Shape the agency record
Respond strategically to proposed actions
Minimize long-term clearance damage
Waiting to seek counsel can significantly limit available options.
Frequently Asked Questions About Indefinite Suspensions
Is an indefinite suspension disciplinary?
No. Agencies typically characterize indefinite suspensions as non-disciplinary. However, the impact can be as severe as a removal.
Can an indefinite suspension last indefinitely?
Yes. There is no fixed time limit, and suspensions may last as long as the issue (clearance, criminal, medical) remains unresolved.
Can a federal employee be placed on indefinite suspension without pay?
Yes. An agency may impose an indefinite suspension without pay, but only after providing required due process, including advance notice, the opportunity to review evidence, and a chance to respond. These suspensions are considered adverse actions under federal regulations.
Will an indefinite suspension affect future federal employment?
It can. How the matter is handled may affect future clearance eligibility and federal job opportunities.
Protecting Your Federal Career
Indefinite suspensions sit at the heart of federal employment law. Federal employees across the country should not assume these matters will resolve quickly or without lasting consequences. For a more technical overview, see our resource page on indefinite suspension for federal employees.
Summary
Indefinite suspension for federal employees is a powerful administrative tool used in serious employment situations. They:
Occur without a fixed end date and typically involve major adverse scenarios
Must meet due process requirements under federal regulations
Can be appealed through the MSPB with proper legal strategy
If you or a colleague are facing an indefinite suspension, it’s important to act quickly to protect your rights and career.
📞 Call (703) 668-0070 for a confidential consultation or click here.
On January 20, 2025, President Trump issued a Presidential Memorandum (PM) directing federal agencies to, as soon as practicable, take all necessary steps to terminate remote work arrangements and require employees to return to work in person at their respective duty stations on a full-time basis, provided that the department and agency heads shall make exemptions they deem necessary. On January 22, 2025, more detailed guidance was provided on the Return to Office through the Office of Personnel Management. The OPM guidance instructs agencies to revise their telework policies to require employees to work full time at their respective duty stations, unless excused from this requirement based on disability, qualifying medical condition, or other compelling reason certified by the agency head and the employee’s supervisor. OPM’s guidance recommends that agencies be in full compliance with the PM within 30 days.
Things to Keep in Mind
Communicate with Leadership
One of the first key things to keep in mind with the Return to Office order is to maintain open lines of communication with your supervisors and leadership. Every employee’s circumstances will be different and making sure to keep your supervisor and leadership informed of your specific situation and any barriers you may have for a Return to Office may help down the road in trying to obtain an exception to the requirement. Such exceptions will need to be based on compelling reasons and be approved by the employee’s supervisor and agency head. It is not yet clear what will qualify as compelling reasons, but one example that has been discussed pertains to military spouses who work remotely. It is likely that there will be other exceptions as well.
Medical Conditions, Disability, and Reasonable Accommodation
The OPM guidance instructs that employees can be excused from the Return to Work order based on disability or qualifying medical condition. For employees who already have such conditions on file with their agency and are working with Reasonable Accommodations in place, employees should make sure that these accommodations address telework or remote work to ensure that they remain in place as the Return to Office process unfolds. For those employees who have a disability or qualifying medical condition, but do not have a reasonable accommodation in place yet, the employees should work quickly to initiate those requests to seek accommodations that will address their specific conditions and needs. The Rehabilitation Act still protects reasonable accommodations that can include telework.
Union-Related Issues
Some employees who are members of bargaining units within federal agencies may be covered by previously negotiated collective bargaining agreements that address remote work and telework. Currently, it appears that OPM will not interfere with those agreements. However, it is likely that efforts may be taken to change those agreements. Such efforts will take time to unfold but employees should remain aware of their Union’s activities in this regard. Furthermore, the likelihood of litigation over many of these return to work orders by national unions remains high.
Avoidance of Discipline
Once deadlines are established for Return to Office, employees who fail to do so and are not on approved reasonable accommodations or who do not have an exemption based on compelling reason could run into disciplinary issues for failure to follow directives. In the event that such discipline is issued, employees should be cognizant of their rights to respond to such disciplinary actions and challenge those actions through established procedures.
Deferred Resignation
Federal employees were recently notified, on January 28, 2025, of an option for a deferred resignation. The deferred resignation instructs employees to make an election by February 6, 2025, and will theoretically provide employees with leave pay until September 30, 2025. For those employees who cannot physically return to the office, this may seem like a reasonable alternative. However, federal employees should be cautious of this program and seek legal advice before making any such election. The legal basis for the program is not clearly established which may subject the program to legal challenge. There is also the potential that the deadline could be extended or curtailed. It is just too soon to tell.
The program’s email also fails to provide much-needed clarity around how the program would be implemented, whether administrative leave would be utilized, who would be required to continue working, and how an election may impact an employee’s ability to transfer to a different position. Due to these various unknowns, employees should speak with experienced legal counsel before electing to participate.
Contact Us
It is important for a federal employee with telework issues or considering the deferred resignation issues to speak with counsel. Berry & Berry, PLLC represents federal employees in these types of federal employment issues and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding these or other federal employment issues.
The following is an article on leave laws and rules that cover Virginia employees. Leave issues generally tend to come up either during the course of an employee’s employment or immediately following the end of an individual’s employment. Leave laws and regulations also vary by the type of employer and jurisdiction of the employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave.
Virginia has not enacted laws regarding many areas of employee leave as of yet, but that may be changing as other states enact improvements. Virginia is a state where most forms of employee leave are not mandatory on employers, but can become so if policies and practices are adopted by employers. I also suspect that there will be additional changes in the future as Northern Virginia grows larger and adds more employers. Some jurisdictions, like the District of Columbia have moved towards expanded paid leave. Fortunately, for most Virginia employees, many forms of leave, while not mandatory are typically provided by employers in order for them to stay competitive in keeping key employees.
I will go through the major types of employee leave in Virginia below:
Vacation Leave / Annual Leave
Except for those situations involving medical issues, the most important form of leave involves annual or vacation leave. In Virginia, private sector employers are not required by law to provide employees with vacation / annual leave, either in a paid or unpaid status. This surprises many employees. Additionally, the rules regarding this type of leave are different for federal, state and county employees in Virginia.
For example, federal employees accrue a certain amount of annual or vacation leave each pay period and can then use this leave for vacation time or taking time off. When a federal employee leaves the federal government, they are then paid out for the remaining balance of annual leave that they have not used.
While providing or paying out accrued vacation or annual leave has not been mandated for private sector employers in this state, if it is pursuant to a consistent employer practice or policy, the employer in Virginia may be required to pay such leave out to departing employees.
Sick Leave
In the Commonwealth of Virginia, there is also no state requirement that employers provide employees with sick leave benefits. Virginia is different in this respect when compared to many other states. For example, 7 states (Arizona, Connecticut, California, Oregon, Massachusetts, Arizona and Washington) and the District of Columbia have enacted state laws to require some form of paid sick leave. It is likely that such laws will eventually make it to Virginia.
That said, if an employer decides to provide sick leave to employees in Virginia, it must follow their established policy. There are some other important considerations on sick leave. First, federal, state and county employees are generally given sick leave in increments. Additionally, pursuant to federal law, private sector employees of larger Virginia companies (more than 50 employees) are entitled to sick leave when given under the Family Medical Leave Act (FMLA). Under the FMLA, private sector employees in Virginia may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies.
This type of FMLA leave renews every 12 months as long as the employee continues to meet the eligibility requirements set out above. Employees may also take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.
Administrative Leave
Administrative leave is a form of temporary leave from duties, with pay and employee benefits left intact. There is no entitlement to administrative leave for employees in Virginia, but it can and is often granted. Typically, this type of leave is granted for reasons related to misconduct, internal investigations, equal employment opportunity investigations or other miscellaneous issues that arise. Federal, state and county employees have their own unique policies for administrative leave, which vary. In large part, administrative leave is used to pay an employee when they are being kept out of the workplace during the course of a disciplinary investigation.
Holiday Leave in Virginia
Additionally, the Commonwealth of Virginia does not require private employers to provide employees with either paid or unpaid holiday leave. A Virginia employer does not have to pay an employee premium or other enhanced pays for working on a holiday. Again, different standards apply for federal, county and state employees, depending on position (e.g. firefighter), who may receive holiday pay for their work and/or different types of premium pay. The good news is that most private sector employers voluntarily observe a paid holiday schedule.
Leave Without Pay in Virginia
Leave without pay is another type of leave available in Virginia, but not mandated by state law. LWOP, as it is called, takes the form of reduced hours or in taking an unpaid day off. LWOP could be used for intermittent FMLA, personal, sick or vacation time off. The employee receiving LWOP will not be compensated for this unpaid form of leave.
Military Leave in Virginia
Military leave is available to most Virginia employees. Leave to participate in military service is not covered under Virginia law, but under federal law. The Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA requires that employers permit the return of an employee who is a uniformed service member to their position after they return from military service or training.
Voter Leave in Virginia
At present, an employer in Virginia is not required to give leave for an employee to vote. However, Virginia does require an employer to accommodate an employee who has been appointed as an election official in the Commonwealth of Virginia. Some federal and other public employees have policies of permitting leave for voting where necessary.
Jury Duty Leave In Virginia
An employer is not required to provide leave for jury duty in Virginia, but cannot discharge or retaliate against the employee if they have given reasonable notice to their employer of a jury obligation. Additionally, an employer may not charge a private sector employee vacation or annual leave for jury duty service. An employer that violates these provisions is guilty of a misdemeanor (VA Code. §18.2-465.1).
VA Code 18.2-464.1 provides, in part: “Any person who is summoned to serve on jury duty or any person, except a defendant in a criminal case, who is summoned or subpoenaed to appear in any court of law or equity when a case is to be heard or who, having appeared, is required in writing by the court to appear at any future hearing, shall neither be discharged from employment, nor have any adverse personnel action taken against him, nor shall he be required to use sick leave or vacation time, as a result of his absence from employment due to such jury duty or court appearance, upon giving reasonable notice to his employer of such court appearance or summons.”
Conclusion
If you need assistance with an employment issue or resolving a matter with an employer regarding leave issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook.
