Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OPM final rule creates requirements for retaining federal employees following probationary period, (Jun 23, 2025)

By Patricia K. Ruiz, J.D.

OPM expects that efficiencies created by the new regulations outweigh the costs of implementation.

An Office of Personnel Management (OPM) final rule, scheduled for publication in the Federal Register tomorrow, will rescind regulations on probationary periods for initial appointments in the competitive service. Under the final rule, to retain a probationer as an employee, an agency must certify that finalizing the appointment advances the public interest. For probationers who will not be retained, the agency must provide written notice of the effective date of the termination action. OPM issued the final rule pursuant to Executive Order (EO) 14284, “Strengthening Probationary Periods in the Federal Service,” which set forth rules and policies for managing probationary periods in the competitive services and trial periods in the excepted services.

Approval needed for tenure. The EO creates a requirement that agency approval is needed before probationary employees become tenured instead of by default upon the expiration of probationary periods. It purports to “remove[] inappropriate regulatory barriers that inhibit agencies from fully utilizing probationary periods.” The final rule states that, in doing so, the EO fulfills Congress’s intention in the Civil Service Reform Act of 1978 that probationary periods be used “as an extension of the examining process to determine an employee’s ability to actually perform the duties of the position.” Congress, according to OPM, believed that it is “inappropriate to restrict an agency’s authority to separate an employee who does not perform acceptably” during the probationary period; thus, the EO removes such restrictions.

Regulatory changes, expected costs. Specifically, the final rule removes the probationary period regulation in subpart H of part 315 of C.F.R. Title 5 and makes conforming edits to parts 301, 307, 315, 316, 351, and 720, which include references to provisions associated with probationary periods prescribed under subpart H. OPM estimates the rulemaking will require individuals employed by approximately 90 federal agencies to modify their regulations, policies, and procedures to implement the rulemaking and train human resources practitioners and supervisors. OPM also does not expect the new requirements to be meaningfully more burdensome than current processes. Though OPM anticipates costs associated with administering agency approvals of probationary employees, it anticipates that savings to the government based on efficiencies created by new requirements for removing poor performers will outweigh any costs associated with transitioning to the new requirements.

News: FederalRegulations AgencyNews WhiteHouseNews PublicEmployees