315-1: Probationary and Trial Periods

Effective Date 03/23/2021

Material Transmitted:

Department of Health and Human Services (HHS) Instruction 315-1, Probationary and Trial Periods, dated March 23, 2021.

Material Superseded:

HHS Instruction 315-1, Probationary and Trial Periods, dated January 6, 2021.

Background:

This Instruction is revised consistent with laws, regulations, Departmental policy and Office of Personnel Management (OPM) guidance.

This policy is effective immediately and must be carried out in accordance with applicable laws, regulations, bargaining agreements, and Departmental policy.

/s/

J. Blair Duncan
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer

Subject: Probationary and Trial Periods

315-1-00 Purpose
315-1-10 Coverage and Exclusions
315-1-20 References
315-1-30 Definitions
315-1-40 Responsibilities
315-1-50 Initial Probationary and Trial Periods
315-1-60 Supervisor and Manager Probationary or Trial Periods
315-1-70 Performance Based and Adverse Actions
315-1-80 Documentation and Accountability

315-1-00 Purpose

This Instruction provides policy and procedures concerning probationary and trial periods within the Department of Health and Human Services (Department or HHS).

Probationary and trial periods provide an opportunity for supervisors to evaluate employee performance before finalizing appointments. Supervisors set expectations for performance, provide feedback, and make the final decision whether a probationer satisfactorily completes their probation or trial period to continue employment. Servicing Human Resources Offices (HROs) support supervisors by providing them the information and guidance they need to effectively perform these duties. When used properly, probationary and trial periods are one of the most valid predictors of future success and can help ensure that the HHS has qualified, competent employees.

When provisions of this policy differ from changes in applicable law or regulation, the changes in law or regulation apply.

315-1-10 Coverage and Exclusions

Coverage.
1. This policy applies to HHS competitive and excepted service employees serving on initial appointments; federal wage system (FWS) employees; and employees serving supervisory and managerial probation or trial periods.
2. This policy applies to individuals hired under non-title 5 excepted service authorities, unless the provisions in the non-title 5 excepted authority specifically exclude individuals from appeal rights or exempt those individuals from 5 U.S.C. §7511’s definition of employee (Todd v. Merit Systems Protection Board (MSPB) 1995, and Lal v. MSPB 2016).
Exclusions.
1. This policy does not apply to individuals serving on temporary limited positions of one (1) year or less in the competitive and excepted services, or members of the Senior Executive Service (SES), Senior Level (SL) or Scientific or Professional (ST).
2. When the provisions of a negotiated labor/management agreement differ from the provisions of this policy, the agreement takes precedence for those employees covered by the negotiated labor/management agreement.

315-1-20 References

315-1-30 Definitions

Employee. An individual serving in a competitive or excepted service position, and who, by definition of ‘employee’ under 5 U.S.C. §7511, has full rights and protections of a federal employee. This generally happens after completion of a probation or trial period, although there are exceptions (see 5 U.S.C. §7511). Once an individual meets the definition of an employee, they have due process rights and are entitled to advance written notice, an opportunity to respond to a proposed adverse action, and appeal rights to the MSPB.
Probationary period. An introductory period of employment for individuals in competitive service positions serving on a career or career-conditional appointment under 5 CFR Part 315, which allows management to evaluate a new employee’s performance and conduct to determine whether his/her continued employment is in the best interest of the Department.
Trial Period. An introductory period of employment for individuals in excepted service positions and individuals on a term appointment in the competitive service, which allows management to evaluate a new employee’s performance and conduct to determine whether his/her continued employment is in the best interest of the Department.
Manager. A manager supervises other supervisors and is not a member of the SES. Managers direct the work of an organizational unit; are held accountable for the success of specific line or staff functions; monitor and evaluate the progress of the organization toward meeting goals, and make adjustments in objectives, work plans, schedules, and commitment of resources (OPM’s General Schedule Supervisory Guide).
Supervisor. . A supervisor accomplishes work through the direction of other people and performs at least the minimum supervisory duties required, described in OPM’s General Schedule Supervisory Guide. They plan work; communicate organizational goals and policies; guide performance; listen to concerns and ideas; ensure employees have the resources needed to do their jobs; and often make difficult decisions about employee recruitment, retention, development, recognition, and appraisal. Supervisors are also often expected to perform work of the office that requires technical skills.

315-1-40 Responsibilities

HHS Assistant Secretary for Administration (ASA), Office of Human Resources (HHS OHR):
1. Develops Department-wide human resources guidance and policy regarding probationary and trial periods consistent with HHS and OPM policy, procedures and all applicable federal laws and regulations.
2. Periodically conducts accountability reviews of HHS Operating Divisions/Staff Divisions (OpDivs/StaffDivs, or Divisions) use of probationary and trial periods to ensure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
OpDivs/StaffDivs
1. Comply with this policy, federal laws, regulations, and collective bargaining agreements covering probationary and trial periods.
2. Advise new hires and managers/supervisors of their probationary status; the length of the probation/trial period; the requirements for successfully completing the probation/trial period; and consequences for failing. Information on probation/trial periods should also be included in vacancy announcements, especially when recruiting outside the federal government.
3. Establish performance standards for each employee, in accordance with HHS performance policy, that address performance expectations and organizational goals.
4. Issue performance plans on a timely basis, in accordance with HHS policy.
5. Evaluate and provide regular feedback to probationers regarding performance and conduct throughout their probation/trial period.
6. Support probationers through training, development, coaching, and mentoring opportunities to ensure successful performance, and to build their skills and/or improve in areas where they are not succeeding as appropriate.
7. Managers and supervisors promptly consult with their Division’s servicing Employee Relations staff for assistance in dealing with unacceptable performance and/or employee misconduct to ensure actions are in compliance with law, regulations, and HHS policy.
8. Hold supervisors accountable for effectively using probationary and trial periods, including ensuring supervisors are monitoring probationers’ performance and communicating regularly with probationers.
9. Properly annotate personnel actions when an employee is required to serve a probation or trial period, and maintain records.

315-1-50 Initial Probationary and Trial Periods

Applicability.
1. Individuals who are initially appointed to a non-temporary position in the competitive service must satisfactorily complete a one (1) year probationary period. Persons who are transferred from another federal agency without a break in service of a single work day; or promoted, demoted, or reassigned before completion of a probationary period must complete their probationary period in the new position (5 CFR §§315.801 and 802(a)).
2. 2. As of the issue date of this Instruction, individuals who are initially appointed to a non- temporary position in the excepted service must satisfactorily complete a two (2) year trial period, unless the law, Executive Order, or regulation authorizing the excepted service appointment specifies a shorter trial period. Persons who are promoted, demoted, or reassigned before completion of a trial period must complete their trial period in the new excepted position.
3. An employee who has completed a trial period in the excepted service must complete an initial probationary period during the first (1st) year the employee is given a career or career-conditional appointment under the conditions specified under 5 CFR §315.801, unless the employee has previously held a non-temporary competitive service position and completed an initial appointment probationary period.
4. An employee who has completed a probationary period in the competitive service may be required to serve a trial period in the excepted service, subject to approval of the OpDiv/StaffDiv HRO, in consultation with the hiring manager and the provisions of the excepted appointing authority. This requirement, if adopted, should be applied uniformly across similar positions within the Division (e.g., for all positions hired under the same excepted service appointing authority).
5. Individuals who are appointed to the competitive service either by a special appointing authority or by conversion from other types of employment listed under 5 CFR Part 315, Subparts F or G, serve a one (1) year probationary period unless specifically exempt from probation by the authority itself, in accordance with 5 CFR §315.801(e).
6. The first year of a term appointment is a trial period regardless of the method of appointment, in accordance with 5 CFR Part 316 (term appointments are in the competitive service yet serve a trial period).
Creditable Time.
1. Prior federal civilian service is credited toward completion of an initial probationary period when the prior service is within HHS; in a same or similar competitive service position (determined by the employee's actual duties and responsibilities); and includes or is followed by no more a single break in service that does not exceed 30 calendar days, in accordance with 5 CFR §315.802(b).
2. Prior federal civilian service is credited toward completion of a trial period when the prior service is within HHS; in a same or similar HHS excepted service position (determined by the employee's actual duties and responsibilities); and includes or is followed by no more than a single break in service that does not exceed 30 calendar days, unless the law, Executive Order, or regulation authorizing the excepted service appointment specifies differently.
3. For individuals in term appointments, prior federal civilian service is credited toward completion of a trial period in the same manner as B.1. above (5 CFR §316.304(a)).
4. Absences in a non-pay status in excess of 22 workdays, except for periods of military duty or compensable injury, extend the probation or trial period by the amount equal to the time off on non-pay status.
5. The probation or trial period for part-time employees is computed on the basis of calendar time, in the same manner as for full-time employees (5 CFR §315.802(d)); and
6. For intermittent employees, i.e., those who do not have regularly scheduled tours of duty, each day or part of a day in pay status counts as 1 day of credit toward the 260 days in a pay status required for completion of probation. (However, the probationary period cannot be less than one (1) year, accordance with 5 CFR §315.802(d). For intermittent employees in the excepted service, the trial period cannot be less than two (2) years.)
Completion of Probation or Trial Period.
1. A probationary period ends when the employee completes his/her scheduled tour of duty on the day before the anniversary date of the employee's appointment, in accordance with 5 CFR §315.804(b).
2. A trial period ends when the employee completes his/her scheduled tour of duty on the day before the second (2nd) anniversary date of the employee’s appointment.
Failure to Satisfactorily Complete an Initial Appointment Probation or Trial Period.
1. When a probationer does not successfully complete an initial appointment probation or trial period because the individual’s work performance or conduct fails to demonstrate fitness or qualifications for continued employment, the individual is terminated.
2. A probationer who does not successfully complete a trial period may have due process rights as an employee, as explained in this Instruction, if they have previously served in a competitive service position and completed an initial probationary period.
3. The OpDiv/StaffDiv’s Employee Relations staff must be consulted prior to the end of the employee’s probation or trial period to ensure the performance-based or adverse action requirements specified under 5 CFR Parts 432 and 752 are followed and the proposed action is legally supportable. See also Section 315-1-70, Performance Based and Adverse Actions.
Federal Wage System (FWS) Employees. OpDivs/StaffDivs consult their negotiated labor/management agreement(s) for rules covering probationary periods for FWS employees, and establish internal procedures as necessary.

315-1-60 Supervisor and Manager Probationary or Trial Periods

Applicability.
1. An individual appointed for the first time to a HHS supervisory or (non-SES) managerial position without time limitation, must serve a one (1) year probationary period, in accordance with 5 U.S.C. §3321; and 5 CFR §§315.904 and 905.
2. Individuals are required to complete a single probationary period when appointed for the first time to a HHS supervisory position, and a single probationary period when appointed for the first time to a HHS managerial position (5 CFR §315.904).
3. An employee who has previously completed a probationary period in a supervisory position or a probationary period in a managerial position does not need to serve another supervisory or managerial probationary period; however, service credit is not transferable between manager and supervisor positions. (5 CFR §315.904(b))
4. The requirements of this section, 315-1-60, also apply to HHS supervisor or (non-SES) manager positions in the excepted service, unless the provisions of the excepted authority authorizing the appointment (law, Executive Order, or regulation) specify differently. These individuals serve supervisor or manager trial periods.
5. Employees who were serving or served in supervisory or managerial positions as of July 31, 1979, are exempt from the requirements in this section, 315-1-60, except in cases when a supervisor is assigned to a managerial position, the employee must complete a probation/trial period for managers (5 CFR §315.904(c)).
Creditable Time.
1. In accordance with 5 CFR §315.906:
  1. A supervisor or manager who is reassigned, transferred, or promoted to another supervisory or managerial position while serving a supervisory or managerial probation or trial period, receives credit for service in the former supervisor or manager position. Service credit is not transferable between manager and supervisor positions.
  2. Service on detail, temporary promotion, or reassignment to another supervisory or managerial position while serving a probation or trial period is creditable toward completion of the probation or trial period. Service in a nonsupervisory or non-managerial position is not creditable.
  3. Service in a supervisory or managerial position via temporary appointment, promotion, or reassignment prior to probation is creditable toward completion of a probation or trial period. Prior service under a detail to a supervisory or managerial position is creditable only when the detail is made permanent without a break in service, following appropriate merit staffing procedures. Documented authorization must be approved by the OpDiv/StaffDiv HR Director or designee, in consultation with the probationer’s supervisor.
  4. Service during a supervisory or managerial probation/trial period from which an employee was separated or demoted for performance or conduct reasons is not creditable toward completion of a probation/trial period required under a subsequent appointment. In situations where the individual did not complete probation through no fault of their own, service may be creditable on a case-by-case basis. Documented authorization must be approved by the HR Director or designee, in consultation with the probationer’s supervisor.
  5. Service credit towards completion of a supervisory or managerial probation/trial period is transferable between competitive to excepted service supervisory or managerial positions, subject to the documented authorization of the HR Director or designee, in consultation with the probationer’s supervisor, but not between excepted to competitive service supervisory or managerial positions.
2. If the supervisor or manager is new to the federal service and has not previously served an initial probationary period for non-temporary positions in the competitive service, the individual concurrently serves both the supervisory or managerial probationary and the initial probationary period. In accordance with 5 CFR §315.909(a), the initial probationary period takes precedence and completion of the initial probationary period fulfills the supervisory or managerial probation.
3. Absences in a non-pay status in excess of 22 workdays, except for periods of military duty or compensable injury, extend the probation or trial period by the amount equal to the time off on non-pay status.
Completion of Supervisory or Managerial Probation/Trial Period. The one (1) year supervisory or managerial probation/trial period ends when the employee completes his/her scheduled tour of duty on the day before the first (1st) anniversary date of the employee’s appointment.
Failure to Satisfactorily Complete a Supervisory or Managerial Probation/Trial Period.
1. The consequence for failing to successfully complete the supervisory or managerial probation/trial period is the employee’s removal from the supervisory or managerial position, but not necessarily termination.
2. If the probationer previously held a federal position and completed the initial-appointment probation/trial period, the employee is reassigned to the OpDiv/StaffDiv position (within the same service, competitive or excepted) at no lower grade and pay than the position previously held just prior to accepting the supervisory or managerial position, in accordance with 5 CFR §315.907(a) and this Instruction. The employee must be notified in writing that he/she is being reassigned (5 CFR §315.907(c)).
3. A nonsupervisory or non-managerial employee who is demoted into a supervisory or managerial position subject to probation/trial period requirements identified under Section 315-1-60 A. above and then fails to complete the probation or trial period for performance reasons, is reassigned to a position at the same grade and pay as the supervisory or managerial position, in accordance with 5 CFR §315.907(b) and this Instruction. The individual must be notified in writing that he/she is being reassigned (5 CFR §315.907(c)).
4. Supervisors or managers concurrently serving both the supervisory or managerial probationary period and the initial probationary period for competitive service positions, or supervisors or managers serving in a trial period who previously served in a non-temporary competitive service position, may have due process rights if they meet the definition of ‘employee’ under 5 U.S.C. §7511.
5. The OpDiv/StaffDiv’s Employee Relations staff must be consulted prior to initiating any performance based or adverse action to ensure the requirements specified under 5 CFR Parts 432 and 752 are followed and the proposed action is legally supportable. See also Section 315-1-70, Performance Based and Adverse Actions.
Federal Wage System (FWS) Supervisors. OpDivs/StaffDivs shall consult their negotiated labor/management agreement(s) for rules covering probationary periods for FWS supervisors, and establish internal procedures as necessary.

315-1-70 Performance Based and Adverse Actions

OpDiv/StaffDiv Employee Relations (ER) staff should be consulted as soon as performance or other issues surface. ER staff must be consulted prior to taking a performance based or adverse action during a probation or trial period to ensure compliance with applicable federal laws and regulations and HHS policy.
Once an individual in either a competitive or excepted service position meets the definition of ‘employee’ under 5 U.S.C. §7511, they are generally entitled to advance written notice, an opportunity to respond to a proposed adverse action, and appeal rights to the MSPB.
Probationary employees may appeal a termination on the basis of discrimination or improper procedure, as described under 5 CFR §§ 315.805, 806, and 908.

315-1-80 Documentation and Accountability

Records associated with personnel actions, including probation/trial period expiration notices, supervisor certifications, and all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. Generally, all records created in a given year must be retained for a total of three (3) full years. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, courts, the Office of the General Counsel, etc. that the matter has been fully litigated, or resolved, and closed.
HHS OHR may conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance, and all applicable federal laws and regulations.