Government Shutdown FAQs
Joseph Feibel – January 18, 2018
What is a Government Shutdown and Who Can Work?
What is a shutdown?
As a general matter, when no funds are appropriated for agencies to operate or there is an interruption of fund availability, federal agencies may not operate or otherwise incur any obligations to pay for goods or services. When federal employees work, the government incurs an obligation to pay them. When federal employees travel for their work, the government incurs an obligation to pay for their travel expenses. Therefore, when funds are not appropriated for agencies to operate or fund availability is otherwise interrupted, federal agencies may not operate or incur any obligations to pay for goods or services. The Anti-Deficiency Act makes it a criminal act for any federal employee to incur any obligation on the part of the government unless Congress has already appropriated money for that obligation.
A shutdown occurs when federal agencies must stop work because the laws appropriating funds for the operation of federal agencies have expired, no new laws have been passed to continue appropriating funds for the agencies to operate, or there is an interruption of fund availability. Last updated 9/30/2015 2
Are there exceptions to the rule that all work must stop if the government shuts down?
Yes. The Office of Management and Budget (OMB) and the Attorney General have issued guidance for federal agencies to follow in the event of a shutdown. Under this guidance, the Commission will only do what it must do to effectuate the shutdown, to protect government personnel, property, and data, and to conduct only law enforcement activities to protect against an imminent threat to life or property. Accordingly, the Commission will except from furlough only those employees necessary to: 1) conduct those law enforcement actions where it is unable to obtain an extension or stay of action or where, absent pursuit of the matter, there would be a significant risk of harm to property or life; 2) protect Commission property, data, and excepted personnel; and 3) effectuate and maintain the shutdown.
May an employee volunteer to do his or her job on a non-pay basis during a furlough period?
No. Unless otherwise authorized by law, an agency may not accept the voluntary services of an individual. (31 U.S.C. 1342)
In the event of a shutdown, how will I know whether to come to work?
Unless otherwise instructed, all employees should report for work on the first business day following the announcement that Congress has failed to appropriate funds for the government to continue to operate. Employees will immediately engage in activities related to shutting down the agency, such as protecting PII, changing phone and email messages, and seeking necessary court extensions. We anticipate that for most employees, this will take about a half day. During that time, all employees will be notified by email as to whether they are furloughed. Some employees may be furloughed at the beginning of a shutdown, but called back later if the need arises. If you are excepted during any part of the shutdown, you will be expected to work during the period you are excepted. If you are not excepted, you will be furloughed. Based on the first few FAQs in this set, you can see that very few employees will be excepted from the furlough, and those who are excepted may be excepted for only a short time, depending on the matter they are working on.
Can excepted employees also continue to perform other work (that is not for an excepted activity and is not “necessarily implied”) during the remaining hours of the workday?
If the excepted activity can be performed in less than an entire day, the employee is required to resume furlough status after completing the activity. However, there may be cases in which an employee is required to perform an excepted activity intermittently throughout the course of the day, and the intervals in between are too short to enable the employee to be furloughed and then recalled in time to perform the excepted activity. In such cases, the employee may remain at work, and may perform non-excepted work during these intervals. OMB has admonished that such non-excepted work should be kept to a minimum.
Furlough – General Administration
What is a furlough?
A furlough places employees in a temporary non-duty, non-pay status because of lack of work, funds or other nondisciplinary reasons. A shutdown furlough takes place when Congress fails to enact regular appropriations, a continuing resolution, or needed supplements with a consequent interruption of fund availability, and federal agencies must shut down those activities which are not excepted pursuant to the Anti-Deficiency Act.
Under what authority is a shutdown furlough taken?
The legal authorities under which a shutdown furlough can be taken are the adverse action procedures found in Subpart D of 5 CFR 752. Furloughs for Senior Executive Service members are covered in Subpart H of 5 CFR Part 359.
For shutdown furloughs necessitated by lapsed appropriations, is an agency required to provide 30 calendar days advance written notice and an opportunity to respond prior to issuing a decision to furlough?
No. OPM’s regulations provide for emergency adverse action furloughs without the necessity for advance written notice proposing the action. Section 752.404(d) (2) of 5 CFR provides: “The advance written notice and opportunity to answer are not required for furlough without pay due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities.” In this regard, OPM’s official guidance in 2013 stated: “While an employee must ultimately receive a written notice of a decision to furlough, it is not required that such written notice be given prior to effecting the emergency furlough. . . . [W]hen prior written notice is not feasible, then any reasonable notice (e.g., telephonic, or oral) is permissible.”
How is time on a furlough documented?
An SF-50 form, “Notification of Personnel Action,” reflecting the employee has been placed on a furlough (i.e., in a temporary, nonpay status) must be prepared for each employee subject to furlough and given to the employee at the conclusion of the furlough.
What is the difference between an “excepted employee” and an “emergency
Employee for purposes of a government shutdown?” (Note: an “excepted employee” is not to be confused with an employee in the excepted service.)
The term “excepted employee” refers to the employees who are excepted from a furlough by law because they are (1) performing emergency work involving the safety of human life or the protection of property, (2) involved in the orderly suspension of agency operations, or (3) performing other functions excepted from the furlough.
The term “emergency employee” is used to designate 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 purpose of a shutdown furlough.
What effect does a furlough have on time limited appointments or promotions?
Furloughs do not extend the not-to-exceed date of time limited appointments or promotions.