Probationary termination rules were rewritten in 2025.

If you have been terminated during a federal probationary period since July 24, 2025, or you are approaching your anniversary date and trying to understand your rights, the regulatory ground has shifted underneath the framework you may have read about in older guides. This article focuses specifically on the mechanics of termination — who can be terminated, how the termination happens, what notice is required, and what remains of the appeal process.

Section I The 2025 regulatory overhaul

Three distinct regulatory actions restructured federal probationary termination rules in 2025. Understanding each is essential to understanding the current framework.

Executive Order 14284 (April 24, 2025)

E.O. 14284, titled "Strengthening Probationary Periods in the Federal Service" and published at 90 FR 17729 on April 29, 2025, accomplished four distinct regulatory actions in a single instrument:

• Revoked Civil Service Rule II Section 2.4 (5 CFR 2.4) — which had authorized OPM to issue rules concerning probationary periods
• Issued new Civil Service Rule XI (5 CFR Part 11, sections 11.1 through 11.6) — replacing the prior regulatory framework
• Declared 5 CFR Part 315 Subpart H inoperative and without effect — the long-standing probationary period regulations
• Directed OPM to initiate rulemaking to formally rescind Subpart H

The E.O. was effective immediately for most provisions. The certification requirement under Civil Service Rule 11.5 and related sections became effective 90 days after issuance — July 24, 2025.

OPM Final Rule of June 24, 2025 (90 FR 26852)

OPM's final rule, "Strengthening Probationary Periods in the Federal Service," formally removed 5 CFR Part 315 Subpart H (sections 315.801 through 315.806) from the Code of Federal Regulations. The rule also made conforming amendments to parts 301, 307, 315, 316, 351, and 720 to replace references to subpart H with references to Civil Service Rule 11. The rule was issued without prior notice-and-comment rulemaking under the authority of E.O. 14284 and the General Counsel's determination that the E.O. constituted a direct implementation of executive authority.

OPM Proposed Rule of December 30, 2025 (90 FR 61072)

OPM's proposed rule, "Streamlining Probationary and Trial Period Appeals," would establish a new 5 CFR Part 751 governing the limited remaining appeal rights. Key proposed provisions:

• Replaces MSPB with OPM's Merit System Accountability and Compliance (MSAC) office as the adjudicative body
• Limits appeal grounds to (1) discrimination based on partisan political reasons, (2) marital status discrimination, and (3) failure to follow procedures for pre-appointment terminations
• Bars EEOC-administered discrimination claims from being raised within the OPM appeal
• Establishes a 30-day filing deadline with electronic filing at OPM
• Provides for OPM initial decisions with authority to order reinstatement, back pay, and attorney fees

Comments closed January 29, 2026. A final rule is expected in 2026. Until a final rule issues, employees seeking to appeal probationary terminations may file with MSPB, which will determine on a case-by-case basis whether it has jurisdiction.

Section II Who is a probationer under the new rules

Civil Service Rule XI applies to probationary periods in the competitive service and trial periods in the excepted service, excluding the Senior Executive Service. Who is covered — and who is not — determines what procedural framework applies.

Competitive service probationary period

Under Civil Service Rule 11.4, the first year of continuous service of an employee who is given an initial career or career-conditional appointment in the competitive service is a probationary period. The probationary period applies unless the employee, during any period of service that affords a current basis for reinstatement, completed a probationary period of at least one year, or served with competitive status under an appointment that did not require a probationary period.

Longer probationary periods apply to specific position types:

• Criminal Investigators (series 1811) — 3-year probationary period under 5 U.S.C. 9510(d)
• Supervisors and managers — additional 1-year supervisory probationary period under 5 CFR Part 315 Subpart I (when not concurrent with the initial Rule XI probation)
• Overseas limited appointments — 1-year probationary period under 5 CFR 301.202

Excepted service trial period — new under Rule XI

Civil Service Rule XI extends the trial period concept to excepted service employees, which was not previously standardized:

• Preference eligible employees in the excepted service — 1 year of continuous service in the same or similar position is a trial period
• Non-preference eligible excepted service employees — 2 years of continuous service in the same or similar position is a trial period

Tacking — what counts toward probation completion

Under Rule 11.4 and the prior "tacking" rules largely retained from 5 CFR 315.802, service prior to the probationary appointment can count toward probation completion if: (1) the service was performed without more than a 30-day break in service preceding the probationary appointment; (2) the service was performed in the same agency; (3) the service was performed in the same line of work; and (4) the service was completed with no more than one break in service of less than 30 days. The prior carveout that permitted AmeriCorps or Peace Corps volunteer service to count toward probation was eliminated.

The critical distinction — "true probationer" vs. tenured employee

The single most important legal distinction in probationary termination law: are you actually a "true probationer" or are you legally a tenured "employee" despite serving a probationary period?

Under 5 U.S.C. 7511(a)(1)(A)(ii), an individual in the competitive service qualifies as an "employee" with Chapter 75 appeal rights (including MSPB appeal of removal) if, immediately preceding the adverse action, they had completed at least one year of current continuous service under an appointment other than a temporary appointment limited to one year or less. This means an employee can be serving a probationary period in a new position while still legally being a "tenured employee" with full Chapter 75 protections — based on prior federal service at another agency or in a different position.

If you qualify as a tenured employee under this test, you have the full suite of procedural protections in Chapter 75 — 30-day advance notice, right to reply, right to representation, MSPB appeal rights — regardless of probationary status in your current position. This was the central holding in the Laboy v. CISA case, where a terminated probationer was found to have Chapter 75 appeal rights based on prior federal service. See Workplace Topic 02 on MSPB Appeals.

Section III The Civil Service Rule XI framework

Civil Service Rule XI, codified at 5 CFR Part 11, establishes six sections governing probationary and trial periods: §§ 11.1 (scope), 11.2 (definitions), 11.3 (competitive service probationary periods), 11.4 (trial periods), 11.5 (review and certification), and 11.6 (appeals and reviews).

The certification requirement (5 CFR 11.5)

The central new requirement under Rule XI: before finalizing an employee's appointment at the conclusion of a probationary or trial period, the agency head or an authorized designee must certify in writing that the individual's continued employment will advance the public interest. Four certification factors are identified in Rule XI for discussion and evaluation:

1. The employee's performance and conduct during the probationary or trial period
2. The needs and interests of the agency
3. Whether the employee's continued employment would advance the organizational goals of the agency
4. Whether the employee's continued employment would advance the efficiency of federal service

The certification must occur within 30 days of the end of the probationary or trial period. If the certification is not issued, the employee's appointment is not finalized and their federal service ends at the close of the probationary period.

Default flipped — silence terminates

The most consequential change under Rule XI is the reversal of the default completion rule. Under the prior framework:

• Old default — probationer automatically became tenured on the anniversary date unless the agency affirmatively acted to terminate
• New default under Rule XI — probationer's appointment automatically ends at the close of probation unless the agency affirmatively certifies continued employment

The practical effect: a probationer approaching their anniversary date who hears nothing from the agency is not safe — silence now means the appointment will not be finalized. Employees should proactively ask their supervisor and HR contact about the status of the certification in the weeks leading up to their anniversary date.

Post-appointment vs. pre-appointment grounds

Under the rescinded 5 CFR 315.804 and 315.805, terminations during probation were categorized as either post-appointment (based on performance or conduct during probation) or pre-appointment (based on conditions arising before appointment, such as falsified application materials or undisclosed criminal history). The two categories had different procedural requirements.

Under Rule XI, the pre-appointment / post-appointment distinction has been largely erased for procedural purposes. Agencies may terminate for any reason not prohibited by law — performance, conduct, agency needs, reorganization, or simply the agency's determination that continued employment does not advance the public interest. The employee bears the burden of showing eligibility to remain in federal service, not the other way around.

Section IV How terminations happen under Rule XI

The procedural steps for probationary termination under the post-2025 framework are significantly compressed compared to prior rules.

Notice requirements

The agency must provide written notice before the termination takes effect. The notice content requirements have been reduced to essentially one element: the effective date of the termination. The prior requirements under 5 CFR 315.804(a) (agency's conclusions as to the inadequacies of performance or conduct) and 5 CFR 315.805(c) (specific and detailed written notice for pre-appointment terminations) were eliminated when those sections were rescinded.

No advance notice period required

Unlike Chapter 75 adverse actions which require 30 days advance written notice under 5 U.S.C. 7513, probationary terminations have no required advance notice period. The termination can be effective immediately upon delivery of the written notice. There is no opportunity to reply to a proposed termination — the termination is the action itself, not a proposal.

No opportunity to respond

Under the old Subpart H framework, agencies were in some cases required to accept a written reply from the employee before finalizing a termination based on pre-appointment conditions. That requirement was eliminated. Employees may of course submit written responses, but there is no regulatory obligation for the agency to consider them before the effective date.

SF-50 and personnel record

The termination is documented on an SF-50 using Rule 66 of Table 31-B in the Guide to Processing Personnel Actions, Authority Code ZLM, with "Strengthening Probationary Periods in the Federal Service" as the stated reason. This coding differentiates probationary terminations from other separation types for personnel record purposes. For how the SF-50 records your personnel history, see Career & Pay Topic 12 on the SF-50.

No severance pay

Under 5 U.S.C. 5595 and 5 CFR Part 550 Subpart G, severance pay is not available for employees separated during a probationary or trial period for performance or conduct reasons. Probationary terminations that are technically involuntary separations (for example, termination for reorganization that doesn't meet RIF procedural requirements) may qualify for severance in narrow circumstances, but most probationary terminations do not.

FEHB, TSP, and leave

Benefits earned during the probationary period are retained:

• Annual leave — lump-sum payment for accrued and unused annual leave at separation
• Sick leave — not paid out but recredited if re-employed within 3 years
• TSP — balance remains in the TSP; may be left in TSP, rolled over, or withdrawn
• FEHB — coverage continues to the end of the pay period in which separation occurs; Temporary Continuation of Coverage available for up to 18 months
• FEGLI — coverage ends 31 days after separation
• FERS retirement contributions — may be refunded or preserved for future federal employment

Section V The near-elimination of appeal rights

The appeal framework under the post-2025 rules is significantly narrower than the pre-2025 framework. Understanding what has been eliminated and what remains is critical to evaluating any probationary termination.

What has been eliminated

E.O. 14284 specifically rescinded the probationary termination appeal rights that had been in place under 5 CFR 315.806:

• Appeal for discrimination based on marital status — formerly appealable under 5 CFR 315.806(b)(2)
• Appeal for discrimination based on partisan political reasons — formerly appealable under 5 CFR 315.806(b)(1)
• Appeal for failure to follow pre-appointment termination procedures — formerly appealable under 5 CFR 315.806(c)
• MSPB jurisdiction over the appeal — formerly vested under 5 CFR 1201.3(a)(13)

What may be restored under the December 2025 proposed rule

OPM's December 30, 2025 proposed rule would re-establish narrowed appeal rights at OPM rather than MSPB:

• Discrimination based on partisan political reasons (restored as a ground)
• Marital status discrimination (restored as a ground)
• Failure to follow procedures for pre-appointment terminations (restored as a ground)
• Appeals would be filed with OPM's Merit System Accountability and Compliance (MSAC) office within 30 days
• EEOC-administered discrimination claims (race, sex, age, disability, religion, national origin) would NOT be appealable through the OPM track — those remain with EEOC

Current state — transition period

Between July 24, 2025 (effective date of Rule XI) and the issuance of the OPM final rule creating Part 751, employees face a regulatory gap. MSPB has indicated it will determine on a case-by-case basis whether it has jurisdiction over probationary termination appeals filed in this window. Some cases have been dismissed for lack of jurisdiction; others have been entertained. The practical advice for an employee facing probationary termination in 2026: file the appeal with MSPB within 30 days of the effective date, even in light of the jurisdictional uncertainty. Late filing is fatal; early filing preserves options.

The critical exception — tenured employees

If you qualify as a "tenured employee" under 5 U.S.C. 7511(a)(1)(A)(ii) by virtue of at least one year of prior continuous federal service under a non-temporary appointment, the probationary termination framework under Rule XI does not foreclose your Chapter 75 appeal rights. In that case, the termination during probation must still comply with Chapter 75 procedures — 30-day advance notice, right to reply, written decision, MSPB appeal — and failure to follow those procedures creates grounds for reinstatement.

The "tenured employee" analysis is fact-specific and often requires legal counsel. If you have any prior federal service under a permanent appointment, consult a federal employment attorney before accepting the agency's characterization of you as a "true probationer." See Workplace Topic 45 on Retaining Counsel.

Section VI What defenses remain

The probationary appeal framework is narrow, but several external statutory frameworks remain fully applicable to probationary employees. These are the defenses worth preserving and pursuing.

EEO discrimination claims

Federal anti-discrimination laws apply to probationary employees just as they apply to tenured employees. The Civil Rights Act (race, color, religion, sex, national origin), the Age Discrimination in Employment Act (age 40+), the Rehabilitation Act (disability), and the Equal Pay Act all provide remedies for discriminatory termination. The process:

1. Contact the agency EEO counselor within 45 days of the termination (or of when you first suspected discrimination)
2. Participate in EEO counseling, typically ADR
3. File a formal complaint with the agency EEO office within 15 days of the Notice of Right to File
4. Agency investigation within 180 days; option to request EEOC hearing
5. Final Agency Decision or EEOC Administrative Judge decision
6. Appeal to EEOC Office of Federal Operations or file in federal district court

See Workplace Topic 04 on EEO Complaints for the full EEO process.

Whistleblower retaliation claims

The Whistleblower Protection Act (WPA) and Whistleblower Protection Enhancement Act (WPEA) protect federal employees, including probationary employees, from retaliation for protected disclosures. If your probationary termination was motivated by a protected whistleblower disclosure, you have two possible venues:

• Office of Special Counsel (OSC) — investigates and may seek corrective action including reinstatement, back pay, consequential damages, and attorney fees
• Individual Right of Action (IRA) to MSPB — available after exhausting OSC process; provides direct MSPB appeal of the retaliatory termination

Whistleblower cases are jurisdictionally preserved even in the post-Rule XI framework. See Workplace Topic 05 on Whistleblower Protections.

USERRA claims

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects military service members from discrimination in federal employment based on uniformed service. A probationary termination motivated by military service, reserve duty, or service obligations is actionable under USERRA. File with the Department of Labor Veterans Employment and Training Service (DOL-VETS) or directly with MSPB under 38 U.S.C. 4324. USERRA has no statute of limitations, though prompt filing is advisable.

Prohibited personnel practices

Under 5 U.S.C. 2302, fourteen prohibited personnel practices are actionable regardless of employee tenure. A probationary termination based on one of the prohibited practices — for example, coerced political activity, retaliation for filing an appeal or grievance, or violation of the veterans' preference laws — is actionable through OSC and, in some cases, through MSPB's Individual Right of Action track. See Workplace Topic 03 on Prohibited Personnel Practices.

Constitutional claims

In narrow circumstances, probationary terminations may give rise to constitutional claims — for example, termination based on protected First Amendment speech, or termination without due process where a protected property or liberty interest exists. These claims are typically brought in federal district court rather than through administrative channels. Due process claims are particularly fact-specific — most probationary employees do not have a protected property interest in continued employment, but termination based on charges that damage reputation may implicate a liberty interest.

Section VII Ongoing litigation and what's next

The 2025 probationary period framework is the subject of ongoing litigation at multiple levels. The outcome of these cases may restore some procedural protections or confirm the current framework.

Challenges to E.O. 14284 itself

Several pending cases challenge the legal validity of E.O. 14284 on the ground that it effectively rescinded 5 CFR Part 315 Subpart H without notice-and-comment rulemaking under the Administrative Procedure Act. OPM's position is that the E.O. directly implements executive authority and that the subsequent OPM final rule of June 24, 2025 provided adequate procedural basis for the rescission. If these challenges succeed, Subpart H could be restored.

February 2025 mass terminations

Before E.O. 14284, approximately 25,000 probationary employees were terminated in February 2025 through mass actions directed by OPM. Multiple district courts found these terminations unlawful on the ground that OPM lacked statutory authority to direct mass probationary terminations at other agencies. The Supreme Court on April 8, 2025 blocked district court reinstatement orders at six agencies pending further litigation. Final resolution of these cases remains pending in 2026 and may affect employees who were terminated during that period.

Laboy v. CISA and tenured probationer doctrine

MSPB decisions confirming that employees with prior continuous federal service retain Chapter 75 appeal rights despite probationary status in a new position have provided a litigation pathway for terminated probationers with prior service. This doctrine was central to the Laboy v. CISA decision and has been applied in multiple subsequent cases. The doctrine is well-established law; the practical question is whether a given employee's specific service history qualifies.

The December 2025 proposed rule

OPM's December 30, 2025 proposed rule (Streamlining Probationary and Trial Period Appeals) is in the comment-review phase after comments closed January 29, 2026. A final rule issuing the new Part 751 is expected in 2026. Until the final rule issues, the transition period creates uncertainty about where and how to appeal — MSPB continues to determine jurisdiction case-by-case.

What to monitor

Key developments to watch in 2026:

• Final OPM rule issuing 5 CFR Part 751 governing probationary appeals
• Federal court decisions on the validity of E.O. 14284 and the OPM final rule rescinding Subpart H
• MSPB guidance on jurisdiction over probationary appeals filed during the transition period
• Congressional action — bipartisan legislation restoring some procedural protections has been introduced but has not advanced

Section VIII Frequently asked questions