Jan 22, 2018

Federal Government Shutdown FAQs


CURRENT STATUS
Federal Government
Applies to: All Federal Government
STATUS: DUE TO A LAPSE IN APPROPRIATIONS, FEDERAL GOVERNMENT
OPERATIONS VARY BY AGENCY.
Employees should refer to their home agency for guidance on reporting for duty.
 
 
 
Frequently Asked Questions
 
 
Employee Coverage
1. Who are “excepted” employees?
A. In the context of shutdown furloughs, the term “excepted” is used to refer to employees who are funded through annual appropriations who are nonetheless excepted from the furlough because they are performing work that, by law, may continue to be performed during a lapse in appropriations. Excepted employees include employees who are performing emergency work involving the safety of human life or the protection of property or performing certain other types of excepted work. Agency legal counsels, working with senior agency managers, determine which employees are designated to be handling “excepted” and “non-excepted” functions. See https://www.opm.gov/policy-data-oversight/payleave/furlough-guidance#url=Shutdown-Furlough for copies of OMB and DOJ issuances, which provide guidance on the application of these criteria.
2. Are all employees who qualify as “emergency employees” for the purpose of weather emergencies considered to be “excepted employees” for the purpose of a shutdown furlough?
A. Not necessarily. “Emergency employees” are those employees who must report for work in emergency situations—e.g., severe weather conditions, air pollution, power failures, interruption of public transportation, and other situations in which significant numbers of employees are prevented from reporting for work or which require agencies to close all or part of their activities. Emergency employees are not automatically deemed excepted employees for purposes of shutdown furloughs. Each agency must determine which employees are excepted employees based on the law.
 
 
3. What about employees who are neither “excepted” nor “exempt”?
 A. Employees who are funded through annual appropriations but are not designated as excepted are barred from working during a shutdown, except to perform minimal activities as necessary to execute an orderly suspension of agency operations related to non-excepted activities. These employees will be furloughed.
4. How will employees be notified whether they have been designated to be handling “excepted” functions or not?
A. Each agency will determine the method and timing of notifying employees of whether they have been designated as an excepted employee.
 
Working during Furlough
1. May an employee volunteer to do his or her job on a non-pay basis during a shutdown furlough?
 A. No. Unless otherwise authorized by law, an agency may not accept the voluntary services of an employee. (See 31 U.S.C. 1342.)
 
Pay
 1. Will excepted employees be paid for performing work during a shutdown furlough? If so, when will excepted employees receive such payments?
A. Agencies will incur obligations to pay for services performed by excepted employees during a lapse in appropriations, and those employees will be paid after Congress passes and the President signs a new appropriation or continuing resolution.
 2. Will employees who are furloughed get paid?
A. Congress will determine whether furloughed employees receive pay for the furlough period.
3. Will employees receive a paycheck for hours worked prior to a lapse in appropriations?
A. Under Office of Management and Budget (OMB) guidance issued in 1980 (below), employees will receive this paycheck. Although the payroll for the last pay period before the lapse will be processed potentially during a period of furlough, the minimum number of payroll staff necessary for this process will be excepted from furlough for the minimum time required to issue the checks, including checks for the last pay period before the lapse. This guidance can be found in OMB’s August 28, 1980, Bulletin No. 80-14, Shutdown of Agency Operations Upon Failure by the Congress to Enact Appropriations, paragraph 3.b.(1) (Appropriations and funds). OMB has reviewed and concurs in this answer.
4. When an employee’s pay is insufficient to permit all deductions to be made because a shutdown furlough 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 its civilian employees when gross pay is insufficient to cover all authorized deductions found at https://www.chcoc.gov/content/ppm-2008-01-order-precedence-whengross-pay-not-sufficient-permit-all-deductions.
5. May an excepted employee be permitted to earn premium pay (e.g., overtime pay, Sunday premium pay, night pay, availability pay) during the furlough period?
 A. Yes. Excepted employees who meet the conditions for overtime pay, Sunday premium 7 pay, night pay, availability pay and other premium payments will be entitled to payment in accordance with applicable rules, subject to any relevant payment limitations. Premium pay may be earned but cannot be paid until Congress passes and the President signs a new appropriation or continuing resolution.
 
 Performance Awards and Within-Grade Increases
1. If agency performance management policies and practices require the payment of performance awards to employees, can the payment be delayed until after the shutdown furlough?
A. Yes. Neither law nor regulation requires agencies to pay performance awards granted under 5 U.S.C. chapters 43 and 45 and 5 CFR 451.104(a)(3). If agency performance management policies and practices require the payment of performance awards, agencies may delay payment until after the furlough when funds are available.
2. May agencies deny or delay within-grade or step increases for General Schedule and Federal Wage System employees during a shutdown furlough?
A. It depends on how long the shutdown furlough lasts. Within-grade and step increases for General Schedule (GS) and Federal Wage System employees are awarded on the basis of length of service and individual performance. Such increases may not be denied or delayed solely because of lack of funds. However, extended periods of nonpay status (e.g., because of a furlough for lack of funds) may affect the timing of such increases. For example, a GS employee in steps 1, 2, or 3 of the grade who is furloughed an aggregate of more than 2 workweeks during the waiting period would have his or her within-grade increase delayed by at least a full pay period. (See 5 CFR 531.406(b).)
 
Leave and Other Time Off
 1. May an employee not excepted from the furlough take previously approved paid time off (e.g., annual, sick, court, military leave, or leave for bone marrow/organ donor leave, or compensatory time off, including religious compensatory time off) during a shutdown furlough?
 A. No. All paid time off during a shutdown furlough period must be canceled because the requirement to furlough supersedes leave and other paid time off rights. The Antideficiency Act (31 U.S.C. 1341 et seq.) does not allow authorization of any expenditure or obligation before an appropriation is made, unless authorized by law. Paid time off creates a debt to the Government that is not authorized by the Act. Therefore, agencies are instructed that during a shutdown furlough, all paid time off must be canceled.
 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. No. When an excepted employee is not working or not performing excepted activities in compliance with the Antideficiency Act, he or she cannot be in a pay status. Excepted employees must be either performing excepted activities or furloughed during any absence from work. The furlough must be documented by a furlough notice. If an excepted employee refuses to report for work after being ordered to do so, he or she will be considered to be absent without leave (AWOL) and will be subject to any consequences that may follow from being AWOL.
2a. Are excepted employees allowed to have intermittent unpaid absences from work during a shutdown furlough?
 A. As stated in Question F.2., excepted employees are not eligible to take any kind of paid time off (e.g., annual leave, sick leave, compensatory time off, credit hours, or excused absence). In addition, excepted employees may not be placed in leave without pay (LWOP) status. (See Question F.7. for specific guidance on employees scheduled to take unscheduled leave under the Family and Medical Leave Act.) However, if an excepted employee needs to be absent from work for brief or intermittent 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 this employee’s need to be absent. If use of workplace flexibilities is not appropriate for your situation, excepted employees must be furloughed for any brief or intermittent unpaid absence. (See Question F.2b. for guidance on employees that must be furloughed during an approved absence from work. Also see Sample Notice of Furlough During Intermittent Absences to Excepted Employee.) 9
2b. If an agency is willing to approve brief or intermittent unpaid absences from work for an excepted employee and use of workplace flexibilities is not appropriate, does the excepted employee have to be placed in a furlough status for these brief or intermittent unpaid absences?
A. Yes. When excepted employees are absent from work they must be furloughed. These periods of time must be documented by a shutdown furlough notice with applicable appeal rights. Any time when an excepted employee is absent from work is time the employee is in a furlough status, and this must be properly documented by a shutdown furlough notice that spells out whatever appeal rights are applicable. One option would be for the agency to issue a furlough notice for the period of time when the employee will be absent, and then recall the employee when the employee is once again available to come to work and perform excepted activities. Another option, which may be easier to administer for an employee who will have multiple brief intermittent absences over a period of time, would be for the agency to issue a modified shutdown furlough notice, which states that the employee is excepted from furlough except for those periods of time they are not working but would otherwise be scheduled to work. (See Sample Notice of Furlough During Intermittent Absences to Excepted Employee.) The periods of time an employee is not working should be listed and clearly identified in the modified shutdown furlough notice. As with any modified furlough notice, agencies should issue such notices as soon as practicable. The above two options are examples of two approaches to consider to ensure appropriate procedural rights are provided to furloughed employees. If you elect to pursue an alternative approach in providing a furlough notice to excepted employees approved to be absent from work for brief or intermittent absences, agency officials should consult with their General Counsel to ensure appropriate procedural rights are provided to furloughed employees.
3. May an employee work during the furlough period to accumulate religious compensatory time off hours for religious observances?
A. An employee who is not “excepted” may not work during the furlough period, even to accrue religious compensatory time. However, an excepted employee may work additional hours for religious purposes if the employee is performing excepted activities, though the employee may not use those hours until after the lapse in appropriations is over.
 4. If an employee is scheduled to take approved unpaid leave during a shutdown furlough, should the agency provide the employee with a furlough notice?
 A. It depends. If the employee is not expected to work during the furlough period (e.g., a 1- year period of leave without pay to accompany a military spouse overseas), then agencies are 10 not required to provide the employee with a furlough notice. If, however, the employee is scheduled to return from unpaid leave to Federal service during the furlough period, the employee should be provided with a furlough notice (effective on the date of scheduled return), unless the employee is expected to be at work performing an excepted activity.
5. If an employee is scheduled to take unpaid leave under the Family and Medical Leave Act (FMLA) during a shutdown furlough, should the agency provide the employee with a furlough notice?
 A. It depends. If the employee is not expected to work during the furlough period (e.g., an employee who has just given birth and has requested 12 weeks of unpaid leave (leave without pay (LWOP)) under the FMLA), the agency is not required to provide the employee with a furlough notice. If, however, the employee is scheduled to return from LWOP to Federal service during the furlough period, the employee should be provided with a furlough notice (effective on the date of scheduled return), unless the employee is expected to be at work performing an excepted activity. An employee on LWOP under FMLA during a shutdown furlough may not later substitute paid time off for the days of LWOP.
6. Does LWOP under FMLA that is scheduled to be taken during a shutdown furlough period count toward the employee’s 12-week FMLA leave entitlement?
A. No.
 
 


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