Labor & Employment Law Daily Wrap Up, AGENCY NEWS—OPM releases further guidance on probationary periods for federal workers, (Aug 8, 2025)

By Brandi O. Brown, J.D.

It instructs agencies to “designate at-least the second-line supervisor, and ideally an official who is either politically appointed and/or is at the Senior Executive Service (SES) or equivalent level” to make continued employment decisions.

The Office of Personnel Management (OPM) has issued updated questions and answers and other guidance providing further information regarding the recent changes in probationary periods for federal employees.

On April 24, 2025, President Trump signed Executive Order 14284 entitled, “Strengthening Probationary Periods in the Federal Service.” The EO announced new rules and policies for managing probationary and trial periods across both the competitive and excepted services. In late April, OPM issued initial guidance to agencies regarding implementation of the new EO. Under the EO, that memo explained, for employees whose probationary or trial period ends on July 23, 2025, or later, for their appointment to be finalized and for them to remain employed beyond the probationary or trial period, the agency head or designee has to affirmatively certify, within 30 days prior to the end of the probationary or trial period, that such individual’s continued employment would “benefit the Federal service.”

Clarifications. Now, OPM has issued updated guidance, including updated questions and answers, seeking, it says, to clarify the factors used to determine whether continued employment is in the public interest. The office has also provided new templates that may be used by agencies, at their discretion, to communicate the new requirements to employees.

Who makes the call? Among the changes is the matter of who evaluates probationary employees for continued employment. The following Question and Answer was included to address that issue:

Can agencies simply designate first-line supervisors as the designated evaluators for probationary or trial period employees?

Answer: Agencies should not simply designate first-line supervisors as the evaluators of probationary or trial period employees. Instead, agencies should designate at-least the second-line supervisor, and ideally an official who is either politically appointed and/or is at the Senior Executive Service (SES) or equivalent level (such as a component or office head). This is to ensure that organizational goals and agency needs are properly considered in evaluating the continued service of probationary or trial period employees. Such officials should solicit the views of first-line supervisors.

Public interest. In both memos, the factors going into the “public interest” assessment of a probationary employee’s fitness for continued employment are essentially the same. However, the revised guidance further clarifies the employee’s burden in that regard by including a “Sample Employee Acknowledgment of Conditions of Continued Employment” that notes that it is the employee’s burden.

Certification. Several of the new and/or revised questions and answers relate to the affirmative certification requirement, including whether agencies need to submit the certifications to OPM, questions about how OPM will ensure compliance with the new EO, and what happens if the agency fails to notify the employee in advance of their termination or fails to process the employee’s termination before the end of the last day of his or her probationary or trial period.

Two other questions relate to the length and extension of trial periods, with answers clarifying that agencies may not retroactively establish two-year trial periods for employees who, prior to April 24, 2025, were not serving on trial periods and that agencies may not extend a one-year trial period for an additional one year if the initial trial period began prior to April 24, 2025.

Appeals? The new guidance also included a new question and answer set about appeals for employees who were appointed to a position in the competitive service before April 24, 2025 (the date of the EO) and were serving a probationary period. The question was whether the employee is entitled to appeal his or her termination under the procedures of the now-revoked 5 C.F.R.§315.806? The answer given is “Employees may seek to file an appeal with the Merit Systems Protection Board. The Board will determine whether or not it has jurisdiction to hear the appeal under 5 CFR 315.806.”

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