The Office of Personnel Management (OPM) has prepared human resources guidance for agencies and employees on shutdown furloughs (also called emergency furloughs).
A shutdown furlough occurs when there is a lapse in annual appropriations.
SEE ALSO: Government Shutdown: How It Affects Your Benefits & Retirement
Shutdown furloughs can occur at the beginning of a fiscal year, if no funds have been appropriated for that year, or upon expiration of a continuing resolution, if a new continuing resolution or appropriations law is not passed.
OPM’s “Guidance to Shutdown Furloughs” booklet provides important information for both federal employees and retirees in the following topics:
– Federal employee pay
– Leave and other time
– Retirement
– Payments when separating service
Below are a few of OPM’s FAQs on federal pay, leave and holidays during a government shutdown:
1. What is a furlough?
A. A furlough is the placing of an employee in a temporary nonduty, nonpay status because of lack of work or funds, or other nondisciplinary reasons.
2. What is a shutdown furlough and why is a shutdown furlough necessary?
A. In the event that funds are not available through an appropriations law or continuing resolution, a “shutdown” furlough occurs. A shutdown furlough is necessary when an agency no longer has the necessary funds to operate and must shut down those activities which are not excepted pursuant to the Antideficiency Act (31 U.S.C. 1341-1342). (See guidance from the Office of Management and Budget (OMB) and the Department of Justice (DOJ) for further information on appropriation matters.)
Federal Employee Coverage
1. Who are “excepted” employees?
A. In the context of shutdown furloughs, the term “excepted” is used broadly to refer to employees whose work is funded through annual appropriations but who are not furloughed because they are performing tasks that, by law, are allowed to continue during a lapse in appropriations. Those tasks are referred to as “excepted work.” Such tasks may include emergency work involving the safety of human life or the protection of property or the performance of certain other types of “excepted work activities” as defined in DOJ and OMB guidance.
In addition to emergency work involving the safety of human life or the protection of property, work performed “by necessary implication” as described in DOJ and OMB guidance is considered to be excepted work. For example, an employee’s performance of authorized orderly shutdown activities (as described in OMB and DOJ guidance) is considered excepted work. In addition, work necessary to implement a funded function, where the suspension of such work during the lapse would prevent or significantly damage the execution of the terms of the applicable statutory authorization or appropriation is considered “excepted work” (e.g., cutting the checks for a benefit program for which funding remains available during the lapse and from which the law requires payments to be made).
Agency legal counsel, working with senior agency managers, determine which employees are designated to be handling “excepted” and “non-excepted” functions. (See Shutdown Furlough Guidance for copies of the applicable OMB and DOJ issuances, which provide guidance on the application of these criteria.)
An employee may be required to perform excepted work activities during part of a lapse period and furloughed for the rest of the time. The use of paid leave is also permissible in certain situations, if taken pursuant to 31 U.S.C. 1341(c)(3). (See Questions D.1a. and F.2. for more information.)
(Note: Presidential appointees who are not covered by the leave system in 5 U.S.C. chapter 63 are not “excepted” as discussed above. However, they are not subject to furlough because their salary is an obligation incurred by the year, without consideration of hours of duty required, so they cannot be placed in a nonduty, nonpay status.)
Federal Employee Pay During a Government Shutdown
1. Will employees performing excepted work be paid for performing such work during a shutdown furlough? If so, when will excepted employees receive such payments?
A. Yes. After the lapse in appropriations has ended, employees who were required to perform excepted work during the lapse will receive retroactive pay for those work periods. (See 31 U.S.C. 1341(c)(2).) Retroactive pay is provided at the employee’s “standard rate of pay.” If the retroactive pay cannot be provided on the normal pay date for the given pay period, it must be provided at the earliest date possible after the lapse ends.
(Note: Presidential appointees who are not covered by the leave system in 5 U.S.C. chapter 63 are not subject to furlough, but are also barred from receiving pay during a lapse in appropriations. These Presidential appointees will be paid after the lapse in appropriations has ended. See Question B.6.)
1a. How is the “standard rate of pay” computed for employees whose work is excepted?
A. Employees who perform excepted work during a lapse in appropriations must receive retroactive pay for that work at the employee’s “standard rate of pay”
(31 U.S.C. 1341(c)(2)). The “standard rate of pay” for excepted hours of work is the pay to which the employee normally is entitled for actual hours of work under the applicable pay rules. For example, if an excepted employee performs authorized overtime work beyond the normal requirements for his or her job, he/she will be paid for that actual authorized overtime work. All excepted hours of work are treated as time in a pay status for pay, leave, and benefit purposes.
Excepted employees who elect to use paid leave under 31 U.S.C. 1341(c)(3) to cover an authorized absence from work during a lapse in appropriations will receive pay for that leave under the normal leave rules when the lapse ends. (See Question F.2.) Consistent with the normal leave rules, an excepted employee may not use paid leave during periods when the employee is found to be absent without leave (AWOL). The standard rate of pay during AWOL periods is zero. If an otherwise excepted employee has an authorized absence from work during the lapse and elects not to use paid leave under 31 U.S.C. 1341(c)(3), the employee will be placed in furlough status during the authorized absence. The employee will be paid for the furlough time when the lapse ends as described in Questions D.3. and D.4. The employee will not be charged paid leave or other paid time off for authorized periods of absence from duty during the lapse, except as provided under 31 U.S.C. 1341(c)(3). (See Question F.2.)
2. May an employee who performs excepted work be permitted to earn premium pay(e.g., overtime pay, Sunday premium pay, night pay, availability pay) during the furlough period?
A. Yes. An employee who performs excepted work and who meets the conditions for overtime pay, Sunday premium pay, night pay, availability pay, and other premium payments will be entitled to receive payment in accordance with applicable rules, subject to any relevant payment limitations, once the lapse ends. Premium pay may be earned during the lapse but cannot be paid until Congress passes and the President signs a new appropriation or continuing resolution.
3. Will employees who are furloughed get paid?
A. Yes. After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods. (See 31 U.S.C. 1341(c)(2).) Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates. (See 31 U.S.C. 1341(c)(2).) If retroactive pay cannot be provided by the normal pay date for the given pay period, it will be provided as soon as possible thereafter. Retroactive pay is provided at the employee’s “standard rate of pay.” (See Question D.4. Note that retroactive pay may be zero if an employee was scheduled (before the lapse took effect) to be in a nonpay status during the period when the lapse was in effect.)
4. How is the “standard rate of pay” computed for furloughed employees?
A. For periods of time during which an employee was furloughed during the lapse in appropriations, the “standard rate of pay” is the pay the employee would have received for the furlough hours had the lapse in appropriations not occurred and had the employee performed work. Therefore—
• An employee is entitled to receive his or her rate of basic pay for the furlough time to the extent that he or she would have been in a basic pay status but for the lapse in appropriations. (See 31 U.S.C. 1341(c)(2).)
• An employee receives retroactive pay for furlough time without being charged paid leave or other paid time off, since a lapse in appropriations generally prevents the use of paid leave or other paid time off. (However, an excepted employee may seek approval of paid leave under 31 U.S.C. 1341(c)(3). See Questions D.1a and F.2.)
• All furlough hours for which retroactive pay is received are treated as time in a pay status for pay, leave, and benefit purposes. For example, for the purpose of applying General Schedule waiting periods associated with within-grade increases, the furlough time during the lapse in appropriations is treated as time in pay status.
• A furloughed employee who, during the lapse in appropriations, had been regularly scheduled to perform overtime work or to perform work at night or during a period for which any other form of premium pay would otherwise be payable is entitled to receive overtime pay, night pay, or other premium pay as if the work had been performed.
• Allowances, differentials, and other payments otherwise payable on a regular basis (e.g., administratively uncontrollable overtime pay and law enforcement availability pay) must be paid as if the furloughed employee actually continued to work.
• All periods of time during which a furloughed employee would, but for the lapse in appropriations, have been in a pay status (including regularly scheduled overtime hours and standby duty) must be considered “hours of work” for pay administration purposes under the Fair Labor Standards Act.
• A furloughed employee is not entitled to retroactive pay for furlough periods if the employee had been previously scheduled (i.e., scheduled before the lapse) to be in nonpay status during those periods. For example, an employee may have scheduled leave without pay (LWOP) for an extended period or be in a suspension status (i.e., pay suspended based on an adverse action). In effect, those already-in-place periods of nonpay status override the furlough status. The “standard rate of pay” for such previously scheduled periods of nonpay status is zero. In addition, an employee who was directed to perform excepted work during a lapse in appropriations but failed to report to duty could have been placed in absent-without-leave (AWOL) status for missed work hours, in accordance with agency policy and procedures. For such an employee, the “standard rate of pay” for AWOL hours is also zero.
4a. Are intermittent employees entitled to retroactive pay following a lapse in appropriations?
A. Intermittent employees—i.e., employees without a regularly scheduled tour of duty (see 5 CFR 340.401)—may be furloughed during a lapse in appropriations. Intermittent employees are covered by the definition of “furlough” in the adverse action regulations at 5 CFR 752.402. Under 31 U.S.C. 1341(c)(2), an employee who is furloughed as the result of a lapse in appropriations must be paid for furlough periods that occurred during the lapse. After the lapse ends, retroactive pay is provided at the employee’s “standard rate of pay.” (See Question D.4.)
If an agency furloughs an intermittent employee, the agency must provide retroactive pay at the employee’s standard rate of pay for the period of the lapse. This should be based on an estimate of the hours the intermittent employee would have worked had the lapse not occurred. Agencies should use their best judgment to determine the hours the intermittent employee would have worked. They may use the employee’s recent work history and/or any agency plans for the lapse period.
5. Will employees receive a paycheck for hours worked prior to a lapse in appropriations?
A. Yes. Although the payroll for the last pay period before the lapse will be processed potentially during the lapse, the minimum number of payroll staff necessary for this process will be excepted for the minimum time required to issue the checks, including checks for the last pay period before the lapse. (See OMB
M-96-01, Planning for Agency Operations (Nov. 9, 1995); and OMB, Bulletin No. 80-14, Shutdown of Agency Operations Upon Failure by the Congress to Enact Appropriations (Aug. 28, 1980).)
6. When an employee’s pay is insufficient to permit all deductions to be made because a lapse in appropriations occurs in the middle of a pay period and the employee receives a partial paycheck, what is the order of withholding precedence?
A. Agencies will follow the guidance on the order of precedence for applying deductions from the pay of their civilian employees when gross pay is insufficient to cover all authorized deductions.
7. If an employee’s pay is insufficient to permit all deductions to be made because a lapse in appropriations occurs in the middle of a pay period and the employee receives a partial paycheck, will the amount of the deductions taken from the employee’s partial paycheck be the same as normal?
A. Some deductions that are based on the amount of an employee’s gross pay (or basic pay) will be reduced in size. For example, deductions for the Federal Employees Retirement System (FERS) Basic Benefit are a percentage of basic pay paid to an employee. Other deductions, such as health insurance premiums, may be a fixed dollar amount and will not be affected. Consequently, the amount of money an employee normally sees in their paycheck will be different than what they might expect.
8. If an employee’s pay is insufficient to permit deductions for health or other insurance premiums or deductions for flexible spending accounts because the employee receives a partial paycheck or no pay during a lapse in appropriations, will this affect the employee’s enrollment or coverage in these benefit programs?
A. An employee’s enrollment and coverage under such programs generally will not be affected if the employee is unable to make the required deductions for insurance and other benefits due to receiving a partial paycheck or no pay during a lapse of appropriations. The one exception is that if an employee is enrolled in a health care flexible spending account through FSAFEDS, they can’t be reimbursed for eligible health care claims until they return to pay status and payroll deductions can be made. (See section H. Benefits for additional information on how missed insurance premiums and flexible spending account deductions will be paid after the lapse of appropriations ends.)
9. If an employee receives a partial paycheck during a lapse in appropriations, may the employee’s agency or payroll provider defer deductions for allotments previously designated by the employee to be taken from retroactive pay when the lapse of appropriations ends in order to provide the employee with a larger partial paycheck?
A. Any changes in an allotment amount or cancelation of an allotment that was previously designated by an employee to be taken from their pay must be personally authorized by the employee under 5 CFR 550.312. Additionally, any changes to an allotment for dues to a labor organization must be taken under regulations prescribed by the Federal Labor Relations Authority (see 5 CFR 550.321) and any applicable collective bargaining agreements.
10. How will deductions for allotments be affected if an employee’s pay is insufficient to permit such deductions because the employee receives a partial paycheck or no pay during a lapse in appropriations?
A. Employees should consult their agency or payroll provider for information on how missed allotment deductions will be handled. Employees may want to review their allotments to determine whether they need to make alternative arrangements (e.g., if using allotments to pay loans, alimony, etc.).
Any allotment for dues to a labor organization previously designated by an employee and which was deferred by the agency or payroll provider during the lapse in appropriations because the employee’s pay was insufficient to cover the dues allotment deduction would be taken from retroactive pay when the lapse in appropriations ends.
11. How will deductions for court-ordered garnishments be affected if an employee’s pay is insufficient to permit garnishment deductions because the employee receives a partial paycheck or no pay during a lapse in appropriations?
A. Employees should consult their agency or payroll provider for information on how missed garnishment deductions will be handled and may need to make alternative arrangements. If a payroll provider is unable to effectuate the garnishment, it should provide a notice to that effect to affected employees and indicate how the provider intends to handle the missed garnishments going forward. We should note that some payroll providers will need to confer with counsel about how much to collect at any given time in any make-up payments.
Federal Employee Leave and Other Time Off During a Government Shutdown
1. May a furloughed employee take previously approved paid time off (e.g., annual leave, sick leave, paid parental leave, disabled veteran leave, court leave, military leave, or leave for bone marrow/organ donor leave, or compensatory time off, including religious compensatory time off) during a lapse in appropriations?
A. No, a furloughed employee may not use previously approved paid time off during a lapse in appropriations. Consistent with the Constitution, the Antideficiency Act does not allow authorization of any expenditure before an appropriation is made. Also, the Antideficiency Act does not allow the Government to incur budgetary obligations before an appropriation is made—unless authorized by law (31 U.S.C. 1341(a)(1)(B)). Based on law and OMB and DOJ guidance, certain types of obligations (but not expenditures) are allowed during a lapse in appropriations. The use of previously approved paid time off during a lapse in appropriations would create an obligation or a debt owed by the Government that is not authorized by the Antideficiency Act or other law during a lapse (except under a special provision for excepted employees in 31 U.S.C. 1341(c)(3)), and is thus prohibited. (See Question F.2. regarding paid time off for excepted employees.)
2. May an excepted employee take previously approved paid time off or be granted new requests for paid time off during a shutdown furlough?
A. A lapse in appropriations cancels an excepted employee’s previously approved paid leave or other paid time off, for the same reasons that apply to furloughed employees. (See Question F.1.) This does not mean that an excepted employee cannot seek approval to be excused from duty during a lapse. An agency may excuse an excepted employee from duty and place the employee in furlough status for approved periods. An agency may allow an excepted employee to be off duty during periods when the employee was previously scheduled to be on paid leave. That off-duty time may be accommodated by workplace arrangements. (See Question
2a. for information on use of workplace flexibilities.)
If that off-duty time cannot be accommodated by workplace flexibilities, the excepted employee will be placed in a furlough status for any approved absence unless the employee requests to use paid leave under 31 U.S.C. 1341(c)(3). We expect that excepted employees generally will not choose to use paid leave under 31 U.S.C. 1341(c)(3) because 31 U.S.C. 1341(c)(2) provides retroactive pay for furlough periods without charge to leave. Under either approach, any payment will be delayed until after the lapse ends.
If an excepted employee chooses to request leave under 31 U.S.C. 1341(c)(3) instead of the default approach of being placed in a furlough status, the employee may make new requests to use paid leave under 5 U.S.C. chapter 63 (or under other applicable law governing the use of leave if chapter 63 is not applicable). Such “paid leave” does not include the various types of paid time off found outside chapter 63 (e.g., compensatory time off, time off award, credit hours). Use of paid leave is subject to the normal rules for the applicable leave program, including leave request and approval procedures. While the paid leave can be used (i.e., resulting in a Government obligation of funds), compensation for the leave cannot be paid until after the lapse ends.
An excepted employee cannot use paid leave under 31 U.S.C. 1341(c)(3) to cover an unauthorized period of absence. If an excepted employee is directed to perform excepted work but fails to report to duty, the employee may be placed in absent without leave (AWOL) status for missed work hours, in accordance with agency policy and procedures. For such an excepted employee, the “standard rate of pay” for AWOL hours is zero. In other words, no retroactive pay is provided for AWOL hours after the lapse in appropriations ends.
2a. Are excepted employees allowed to have intermittent absences from work during a shutdown furlough?
A. Yes. As explained in Question F.2., an excepted employee may be excused from duty for intermittent periods during a shutdown furlough. While excused from performing excepted duties, the employee will be placed in furlough status (default approach) unless the employee elects to use paid leave under 31 U.S.C. 1341(c)(3). (See Question F.7. for specific guidance on employees scheduled to take leave under the Family and Medical Leave Act.)
However, if an excepted employee needs to be absent from work for brief periods, agencies are encouraged to explore the use of workplace flexibilities such as alternative work schedules and telework (subject to applicable laws, regulations, agency policies, and collective bargaining agreements) to accommodate the employee’s need to be absent. (See Question C.5. for guidance on alternative work schedules.) If use of workplace flexibilities is not appropriate for the situation, excepted employees must be furloughed for any brief absence or allowed to request paid leave under 31 U.S.C. 1341(c)(3), as explained in Question F.2. (See Question 2b. for guidance on excepted employees who must be furloughed during an approved absence from work. Also see Sample Notice of Furlough During Intermittent Absences and Holidays to Excepted Employee.)
In making determinations regarding whether to grant requests for time off that result in placement in furlough status, agencies are encouraged to consider the same principles that guide the granting of various types of paid leave during normal periods of funded operations, while keeping in mind any special work requirements for excepted employees during the lapse in appropriations.
Federal Employee Holidays During a Government Shutown
1. Will an employee “exempt” from furlough be paid for a holiday that occurs during a shutdown based on a lapse in appropriations?
A. Employees are “exempt” from furlough if the work they perform has a separate source of funding and is not affected by a lapse in appropriations. For that reason, an “exempt” employee will be paid for a holiday according to the normal rules governing holidays.
2. Will employees affected by a lapse in appropriations be paid for a holiday that occurs during the lapse?
A. Lapse-affected employees—whether excepted or furloughed—will not receive pay for a holiday that occurs during a lapse in appropriations until after the lapse had ended. After the lapse has ended, an employee affected by the lapse will, except as otherwise provided below, receive his or her regular holiday pay for a holiday (or an “in lieu of” holiday, if applicable) and, if applicable, an excepted employee will receive holiday premium pay for work performed during his or her normal hours of duty on the holiday, and overtime pay for work in excess of the normal hours of duty on the holiday. (See 31 U.S.C. 1341(c)(2).) Also, if an employee was regularly scheduled to work on a holiday and was instead furloughed, the employee is now entitled to holiday premium pay, as discussed in Question D.2.
An employee who was on preapproved LWOP during the lapse in appropriations must continue to be charged LWOP for the duration of the period approved as LWOP. If such an employee was on LWOP on both the last workday before a holiday and the first workday after the holiday, he or she will not be paid for the holiday. This rule is consistent with OPM’s longstanding guidance and a Comptroller General decision (56 Comp. Gen. 393 (1977)).
3. What is the status of an “excepted” employee who does not perform work on a holiday that occurs during a lapse in appropriations?
A. An “excepted” employee who does not perform work on a holiday during a lapse must be placed in a furlough status for the holiday and must be provided written notice of the agency’s decision to furlough in accordance with the guidance in section P (Procedures). This is because during a lapse in appropriations all affected employees must be (1) at work performing excepted activities or (2) furloughed. This applies with respect to any period of time that is part of an affected employee’s regularly scheduled administrative workweek, including a holiday. (See Sample Notice of Furlough During Intermittent Absences and Holidays to Excepted Employee.)
4. Will an “excepted” employee who does not work on a holiday that occurs during a lapse in appropriations be paid for the holiday?
A. Yes, after the lapse has ended. (See 31 U.S.C. 1341(c)(2).) An “excepted” employee who does not work on a holiday that occurs during a lapse will be placed in a furlough status for the holiday and will receive retroactive pay for the holiday as soon as possible after the lapse ends. (See Sample Notice of Furlough During Intermittent Absences and Holidays to Excepted Employee Due to a Lapse in Appropriations.)
5. Can an “excepted” employee voluntarily report to work on the holiday?
A. No. Each agency must determine which excepted activities must be performed on a holiday, and which employees are needed to perform those functions. Employees who are not otherwise needed to perform excepted functions on the holiday must be placed in furlough status for that day.
6. Can “excepted” employees be required to perform work on a holiday that occurs during a lapse in appropriations?
A. Yes. Each agency is responsible for determining which excepted activities must be performed on a holiday in order to carry out functions related to such excepted activities. Failure to report to duty on a holiday is no different than failure to report to work on any other day (see Question F.2).
7. What pay entitlements will accrue to an “excepted” employee who performs work on a holiday during a shutdown furlough?
A. The Federal Government will be obligated to pay an excepted employee who performs work on a holiday according to the normal rules governing pay for work on a holiday. For example, under 5 U.S.C. 5546(b), a covered employee would receive his or her rate of basic pay, plus holiday premium pay at a rate equal to the employee’s rate of basic pay. In addition, if such an employee performs officially ordered or approved overtime work on a holiday (i.e., work in excess of his or her basic non-overtime work requirement for that day), the employee would receive overtime pay (or compensatory time off) for that work. As explained under Question G.2., an excepted employee cannot receive payment for working on a holiday until an appropriations act or a continuing resolution is enacted. Please note, holiday premium pay and overtime pay are not applicable to certain employees, such as heads of agencies and members of the Senior Executive Service.
8. How do the “in lieu of” holiday rules apply during a lapse in appropriations?
A. Under normal circumstances, all full-time employees, including those on flexible or compressed work schedules, are entitled to an “in lieu of” holiday when a holiday falls on a nonworkday. See OPM guidance on “in lieu of” holidays.
During a shutdown furlough, generally—
• The normal “in lieu of” holiday rules apply to employees “exempt” from furlough.
• The “in lieu of” holiday rules do not apply to furloughed employees (i.e., employees do not receive an “in lieu of” holiday if they are in a furlough status on a holiday).
• When scheduling holidays for “excepted” employees, the normal “in lieu of” holiday rules apply. However, as explained in Questions G.4., G.5., and G.6., otherwise excepted employees must be furloughed on the “in lieu of” holidays unless they are working.
- To download the shutdown furlough guide, go here(PDF, 51 pages)
- More information on government shutdowns is here.
