Employees Furloughed Due to Lapse in Appropriations Questions and Answers Fact Sheet
Q1. What is a furlough?
A1. A furlough is the placement of an employee in a temporary nonduty, nonpay status because of lack of work or funds, or other nondisciplinary reasons. In a “shutdown” furlough, the agency no longer has the necessary funds to operate and must shut down those activities which are not excepted by Office of Management and Budget (OMB) standards.
Q2. What types of activities/work functions are excepted from furlough?
A2. Generally, exceptions apply to employees in positions (“excepted” employee) that are responsible for (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 exempted from the furlough, as provided by OMB. The Office of General Counsel (OGC) and Budget, working with senior agency managers, are determining which employees are designated to be handling “excepted” and “non-excepted” functions.
Some activities throughout the Department will continue to have funding available due to appropriations that were previously approved or other funding authorities. Employees in positions that continue to have funding are not affected by furlough.
Q3. What type of work is performed by employees during orderly shutdown?
A3. Employees who are performing work required for the orderly shutdown of Agency operations, perform the following functions:
- Taking measures to secure files (computer or hard copy).
- Making contacts outside the agency that are necessary to communicate our status.
- Canceling meetings, hearings, and other previously arranged agency business.
- Documenting the status of projects so that they can be resumed, transferred or otherwise appropriately handled when the Department of Transportation’s (DOT) ultimate funding situation is determined.
Q4. Are SES employees subject to furlough?
A4. Yes, generally, unless they have been excepted from furlough under the same conditions as all other employees.
Q5. Are individuals appointed by the President subject to furlough?
A5. All political appointees who are covered by the leave system are subject to furlough. For example, Schedule C appointees in the General Schedule (GS) or Senior Level (SL) pay systems and noncareer SES members are all covered by the leave system and subject to administrative furlough. Individuals appointed by the President, with or without Senate confirmation, who are not covered by the leave system are not subject to furlough.
Q6. Why are leave-exempt Presidential appointees not subject to furlough?
A6. Individuals appointed by the President, with or without Senate confirmation, who are not subject to the laws and regulations governing leave in the Federal service, are not subject to furlough because they are entitled to pay by their status as an officer, not by the hours they worked. The salary of a leave-exempt Presidential appointee is an obligation incurred by the year, without consideration of hours of duty required. Therefore, a leave-exempt Presidential appointment cannot be placed in a nonpay, nonduty status.
Presidential appointees who are covered by the leave system are not considered to be entitled to pay based solely on their status as officers; thus, these individuals are subject to furlough in the same manner as other Federal employees.
Q7. May an employee volunteer to do his or her job on a nonpay basis during a furlough period?
A7. No. Furloughed employees may not work or telework on a voluntary basis during a furlough. Performing non-excepted duties during a furlough period is a violation of the Antideficiency Act and may have disciplinary consequences for both the employee and the manager authorizing the work.
Q8. Will employees excepted from furlough be paid during the furlough period?
A8. No. If funding for a function has lapsed, employees excepted from furlough cannot be paid for work performed until subsequent appropriations are enacted.
Q9. Will furloughed employees receive backpay for the furlough period after appropriations are enacted?
A9. There is no guarantee that Federal agencies will be authorized to provide retroactive payment to employees who are subject to the furlough once funding is appropriated. Congress will determine whether Federal employees receive pay for the furlough period.
Q10. Are employees entitled to unemployment compensation while on furlough?
A10. Employees may be eligible for unemployment compensation depending upon the number of consecutive furlough days. Generally, you must be unemployed for a minimum of 7 days to be eligible for unemployment compensation. Questions regarding eligibility for unemployment compensation should be directed to the State unemployment office for your official duty station.
Q11. May employees take other jobs while on furlough?
A11. An individual continues to be an employee of the Federal Government during a furlough. As such, standards of ethical conduct and rules on outside employment continue to apply during a furlough period.
Q12. What impact will the furlough have on the December 31, 2018 pay check?
A12. Pay scheduled for December 31, 2018 is for the period December 9- 22, 2018. Employees can expect to receive pay for hours worked or accounted for by leave from December 9 – December 21, 2018.
Q13. Can I use leave, compensatory time off, or credit hours for the days that I am furloughed?
A13. No. During a furlough period, previously approved leave, compensatory time off, or credit hours is rescinded and requests to use such time off must be denied for furloughed employees.
Q14. If an employee who received a furlough notice had previously scheduled annual or sick leave, what happens to the scheduled leave?
A14. Upon furlough, all scheduled leave is canceled (annual leave, sick leave, or other). Absences during the furlough may not be charged to leave.
Q15. May employees who were designated as excepted from the furlough be granted paid leave?
A15. No. If an excepted employee is unavailable to be at work and perform the duties determined by the employing agency to be allowable activities, the employee must be furloughed. An agency may subsequently terminate the furlough if the employee’s services are still required for excepted activities following the absence.
Under this unique timing of the lapse in appropriations, Operating Administrations (OA) should take into consideration an employee’s previously scheduled leave, regular day off (RDO) under an alternative work schedule (AWS), or holiday(s) that takes place during the furlough period and allow the employee to be furloughed during the period the employee had been scheduled to take leave, unless the OA determines there is a need for the employee to report to work to perform excepted activities.
To provide maximum flexibility for employees, an excepted employee on a flexible work schedule may adjust their scheduled tour of duty to accommodate short absences that were previously approved. For example, with supervisory approval, an employee may elect to work hours outside of their normal work schedule throughout the pay period to make up time needed for a short absence (e.g. previously scheduled appointment) and avoid the need to take leave. Adjusting an employee’s work schedule for this purpose does not entitle an employee to premium payments for hours worked in excess of 8 hours in day.
Q16. What happens to “use or lose” annual leave if an employee is unable to use his or her scheduled “use or lose” annual leave during the furlough period?
A16. Employees in a “use or lose” situation should make every effort to reschedule “use or lose” annual leave for use before the end of the 2018 leave year. However, if this is not possible due to the lapse in appropriations, OA designees are encouraged to use their discretionary authority to restore any forfeited annual leave that was properly scheduled by determining that the employee was prevented from using his or her leave because of an exigency of the public business – namely, the need to furlough employees because of the lapse in appropriations.
Q17. In the event of a lapse of appropriations on December 21, 2018, when would employees whose schedule is a normal Monday-Friday work week be expected to come in for orderly shutdown activities?
A17. Unless an employee is specifically directed by his or her OA, employees should generally report to work to conduct necessary orderly shutdown activities (if any) on the next day on which the employee would have been scheduled to work. OAs should take into consideration an employee’s previously scheduled leave, RDO, or holiday(s) that take place during the furlough period and generally allow the employee to complete orderly shutdown activities on the workday on which the employee had been scheduled to return to work. For example, if the employee was scheduled to be on paid leave and out of the office on the next workday after the commencement of a lapse in appropriations, the employee would not report to work to complete orderly shutdown activities until the workday on which the employee had been scheduled to return to duty. Even though an employee’s scheduled paid leave is cancelled during a lapse in appropriations, OAs should generally allow the employee to continue planned periods of absence.
Most employees are not scheduled to work on December 24, 2018 (Executive Order 13584: Providing for the Closing of Executive Departments and Agencies of the Federal Government on December 24, 2018) or December 25, 2018 (Christmas Day holiday). Therefore, unless those employees had scheduled leave on December 26, 2018, they would report to work on that day to conduct any necessary orderly shutdown activities.
Q18. What affect will a furlough have on my career tenure, probationary period, time-in-grade for promotion, within grade increases, or service computation date?
A18. The answer is probably no impact since most furloughs have not lasted for more than 20 workdays in the past.
- Career tenure: The first 30 calendar days of each nonpay period is creditable service. (5 CFR 315.201(b)(4)(ii)(A))
- Probationary period: An aggregate of 22 workdays in a nonpay status is creditable service. (5 CFR 315.802(c))
- Qualification standards: There is no requirement to extend qualifying periods by the amount of nonpay status. However, agencies may require such extensions in order to meet training requirements or ability to perform. (5 CFR 335.103(b)(3), the Office of Personnel Management (OPM) Qualification Standards, General Policies and Instructions, part E.3.(f)).
- Time-in-Grade: Nonpay status is creditable service. (5 CFR 300.605(a))
- Service Computation Date-LEAVE: Up to 6 months in nonpay status is creditable. (5 USC 6303(a))
Q19. How will a furlough affect my benefits (health, life, Long Term Care Insurance, Federal Employees Dental and Vision Insurance Plan (FEDVIP))?
A19. A short-term furlough should have minimal impact on an employee’s benefits. Employees will continue to be covered during a short-term furlough period and will make payments for these benefits once returned to a pay status. For specific questions about certain benefits, please refer to the OPM Guidance available at http://www.opm.gov/policy-data-oversight/pay-leave/furlough-guidance/guidance-for-shutdown-furloughs.pdf .
Q20. To what extent does non-pay status affect retirement coverage?
A20. Retirement coverage continues for up to 6 months for periods of non-pay status per calendar year.
Q21. Can a furloughed employee obtain a loan from their Thrift Savings Plan (TSP) account? If a furloughed employee has a TSP loan, what happens to the loan?
A21. An employee may not obtain a loan from their TSP account while on furlough. As to current TSP loans, employees must pay the missed payments directly to the TSP in order to avoid a taxable distribution. The Payroll Office cannot make up missed payments from payroll deductions once the employee returns to work.
Q22. What happens to my TSP loan repayments if I am furloughed? Will I default on my TSP loan?
A22. TSP loans are repaid by payroll withholding. If a person misses two loan payments, nothing happens. Most federal employees are paid biweekly, which means nothing will happen if you cannot make your TSP loan repayments for 28 days. If it is longer, the Federal Retirement Thrift Investment Board, which oversees your TSP, will notify participants by mail that they need to mail in a personal check for the "cure" amount to get their loan back on track.
Q23. Will the credit union be open if there is a furlough?
A23. Yes. The credit union will remain open to provide services to customers during a furlough.
Q24. Will the cafeteria in the DOT Headquarters Building be open if there is a furlough?
A24. Yes. The cafeteria in the DOT Headquarters Building will remain open during a furlough for employees who are required to work or are funded by other sources.
Q25. If employees funded through appropriations that have lapsed are on temporary duty assignments away from their normal duty stations at the time of an appropriations lapse, can they make arrangements to return home sooner than planned?
A25. They are encouraged to do so wherever reasonable and practicable. However, agencies should make a determination of reasonableness and practicality based on the length of the assignment and the time required for return travel, compared to the anticipated length of the lapse, so as to minimize the burdens of doing so.
Q26. What happens to employees scheduled for training during a furlough?
A26. Employees who are neither excepted nor exempt and are scheduled for training during a shutdown furlough must be placed in a furlough status and ordered not to attend the scheduled training.
Q27. What adjustments are required to a furloughed employee’s transit benefits?
A27. For Smartbenefits users, TRANServe recommends using a separate Smartcard or paper fare card during furlough days to ensure that you do not use your Federal benefits. Alternatively, for the month following a furlough, employees may need to make an adjustment to their claim amount via their self-certification form (available at http://transerve.dot.gov) for their days on furlough, when no transit subsidy was required for home-to-work transportation.
Q28. Is there general advice for employees planning to be on travel status on the date of the lapse in appropriations?
- Travel to begin on the day of lapse or after should be avoided.
- Any employee on travel status who is funded by one of the sources that may lapse, should be contacted and told whether their activities in official travel status are excepted and should continue or whether they should return to the duty station and arrive by the date before the date of furlough. Employees in official travel may volunteer to be furloughed at their travel sites rather than returning home.
Q29. For employees who park at headquarters, will there be a rebate to take account of furlough days?
A29. If a furlough lasts for more than 13 business days, there will be an adjustment to the employee’s monthly parking fee that will apply to the purchase of the next month’s permit. At 13 furlough days, the daily rate for parking will be less than the monthly permit fee.
Q30. Are Human Resources Offices required to provide furloughed Federal employees with an SF-8, Notice to Federal Employee About Unemployment Insurance?
A30. Federal agencies are required to provide employees with an SF-8 http://www.gsa.gov/portal/forms/download/116362 if they will be in a non-duty status for seven or more days. For this reason, the SF-8 should be distributed to furloughed employees, since it is not known how long the furlough will last.
Q31. Can a limited number of employees that provide administrative support to employees performing functions otherwise authorized by law to continue during the lapse period also continue working during the lapse period?
A31. Yes. Absent other options, a limited number of administrative employees who perform payroll, contracting, human resources, or other such services if necessary to support an employee performing functions otherwise authorized by law during a furlough may also continue to work during the absence of appropriations. In this situation, the agency may continue to incur obligations prior to the enactment of an appropriations act because the legal authority to obligate for such functions is implicit. See Opinion of the Attorney General (January 16, 1981). Such authority is necessarily implied by statute because lawful continuation of other activities implies that these functions will continue as well, e.g., a human resources employee if necessary to support employees performing functions under valid no-year or multi-year funding sources. See id., p. 5. However, no expenditures can be made to liquidate these obligations.
Q32. Can DOT’s centralized payroll and accounting functions continue during a lapse of general appropriations?
A32. Yes. DOT’s centralized payroll and accounting functions may continue for functions funded by other than lapsed sources. This is because DOT payroll services are provided by the Department of Interior’s, Interior Business Center’s (IBC’s) Working Capital Fund. IBC has stated that it will have sufficient essential employees working during the furlough to process DOT’s payroll for such employees that are not funded from lapsed sources. Additionally, DOT accounting services are provided by the FAA’s Enterprise Service Center (ESC) in Oklahoma City, funded by an annual interagency agreement with DOT. ESC has confirmed that it can continue to process DOT invoices as the franchise fund runs on an independent reserve and can continue to operate in the absence of appropriations, subject to cash reserve availability.
Q33. May agency management decide to fund certain employees regularly funded with no-year or multi-year funds with annual funds so that they will be furloughed in lieu of other agency employees whose functions agency management has decided are advantageous during the furlough?
A33. No. The only case where some flexibility would be possible is if an employee is normally funded with both annual and no-year or multi-year appropriations. In that case, agency management can determine, within available funding levels that the employee will not be furloughed but will continue to perform work funded by and within the appropriated purpose of the no-year or multi-year appropriations. (Such decisions should be made in consultation with agency counsel).
Q34. If employees are receiving Continuation of Pay (COP) for a work-related injury, will COP be terminated or interrupted by the furlough?
A34. When employees are furloughed due to a lapse in appropriations, there is no legal authority to pay COP or any similar payment. However, lapsed appropriations do not abrogate the employee’s entitlement to COP in any way. Therefore, although COP may be suspended during a furlough caused by lapsed appropriations, retroactive payment is mandatory once funding has been appropriated. Once the furlough begins, COP is placed in abeyance pending the resumption of funding. When funding is available, any remaining COP entitlement must be paid on a retroactive basis. The Department of Labor recognizes that they cannot force an agency to make payments of salary to furloughed employees when the agency has no funds to legally do so. If Congress does not decide to pay furloughed employees for the days off, COP would still have to be paid retroactively under 5 U.S.C. 8118.
Q35. If an employee is receiving wage-loss compensation under the Federal Employees Compensation Act (FECA) and was then furloughed, what effect would the furlough have on his/her compensation?
A35. None. FECA wage-loss compensation is not considered wages and, therefore, is not affected by a lack of funding at the employing agency.
Q36. What happens to employees on detail during a shutdown furlough?
A36. Detailed employees remain officially assigned to their permanent positions during the detail. During a shutdown furlough, each agency will determine the status of their employees on detail within the agency or to another agency. Home and receiving agencies should carefully consult about what activities are appropriate for a detailee to perform during a funding lapse to ensure that the activities are consistent with the reasons why the agency designated them as “excepted.”
Q37. Does a shutdown furlough affect the accrual of annual leave and sick leave?
A37. If an employee is furloughed (i.e., placed in nonpay status) for part of a biweekly pay period, the employee’s leave accrual will generally not be affected for that pay period. However, the accumulation of nonpay status hours during a leave year can affect the accrual of annual leave and sick leave over a period of time. For example, when a full-time employee with an 80-hour biweekly tour of duty accumulates a total of 80 hours of nonpay status from the beginning of the leave year (either in one pay period, or over the course of several pay periods), the employee will not earn annual and sick leave in the pay period in which that 80-hour accumulation is reached. If the employee again accumulates 80 hours of nonpay status, he or she will again not earn leave in the pay period in which that new 80-hour total is reached. At the end of the leave year, any accumulation of nonpay status hours of less than 80 hours is zeroed out so that the accumulation of nonpay status hours for the next leave year starts at zero.
For part-time employees, the rule blocking accrual of leave based on the accumulation of nonpay status hours does not apply since leave accrual for part-time employees is prorated based on hours in a pay status in each pay period.
Q38. What procedural rights apply to employees who are veterans covered under 5 U.S.C. chapter 75 and 5 CFR part 752 for a shutdown furlough?
A38. The law gives a covered veteran employee the same procedural rights as other covered employees during a shutdown furlough. Employees should consult with their Operating Administration (OA) human resources office to determine whether they are covered and what procedures may apply to them.
Q39. If an employee decides to challenge a shutdown furlough, from what point would the time for appeal to the Merit Systems Protection Board run?
A39. Employees must file an appeal within 30 days after the effective date of their first furlough day, or 30 days after the date of their receipt of the decision notice whichever is later.
Q40. What procedures and appeal rights are applicable for noncareer, limited term and limited emergency employees in the SES and reemployed annuitants holding career SES appointments?
A40. Noncareer, limited term, and limited emergency SES appointees and reemployed SES annuitants holding career appointments are not covered by 5 CFR part 359, subpart H, and they may be furloughed under agency designated procedures, which should include certain minimum features, e.g., whenever possible, a written notice at least 1 day before the furlough that states the reason for, duration of, and effective dates of the furlough.
Q41. How is the number of furlough hours determined for employees on alternative work schedule (AWS)? Can an employee reschedule a non-workday that occurred during the furlough?
A41. Employees are furloughed based on the number of hours they are scheduled to work on the days for which there is a shutdown furlough. Normally, schedules are established in advance of the pay period involved. As such, an AWS non-workday scheduled to occur during a shutdown furlough should not be changed after the pay period begins.
Q42. 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?
A42. Yes. Excepted employees who meet the conditions for overtime pay, Sunday premium 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.
Q43. May agencies deny or delay within-grade or step increases for GS and Federal Wage System (FWS) employees during a shutdown furlough?
A43. It depends on how long the shutdown furlough lasts. Within-grade and step increases for GS and FWS 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.
Q44. Are excepted employees allowed to have intermittent unpaid absences from work during a shutdown furlough?
A44. 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. However, if an excepted employee needs to be absent from work for brief or intermittent periods, OAs 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 an 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.
Q45. May an excepted employee be permitted to earn compensatory time off and credit hours (under flexible work schedules) during the shutdown period?
A45. Yes. With supervisory approval, excepted employees may earn compensatory time off and/or credit hours. Each OA is responsible for approving the number of hours an excepted employee can work related to the performance of excepted activities. Employees will not be permitted to use earned compensatory time off or credit hours during the shutdown period.
Q46. If an employee submitted a new application or a change to his/her health insurance plan (e.g. because of a Qualifying Life Event) and the paperwork was not processed by the agency because of a shutdown furlough, how would the employee seek services or coverage?
A46. New enrollments or changes in enrollment due to a Qualifying Life Event do not take effect until the employee has been back in pay status for any part of the prior pay period.
Q47. What will happen to employees who would have retired during a shutdown furlough?
A47. For employees who, on or before the requested retirement date, submitted some notice of their desire to retire, OAs should, when the lapse in appropriations ends, make the retirement effective as of the date requested. The retirement request may be informal (such as a letter requesting retirement), and can be either mailed or personally submitted to the agency. Any additional required paper work, such as the formal retirement application form, may be completed when the agency reopens. No time spent by the retiree in such actions after the effective date of the retirement may be considered as duty time, since the individual would no longer be an employee of the agency.
Q48. In the event of a shutdown furlough, can an employee be furloughed without first receiving a written notice of decision to furlough?
A48. Yes. While an employee must ultimately receive a written notice of decision to furlough, it is not required that such written notice be given prior to effecting the emergency furlough or in person. Advance written notice (including through email) is preferable, but when prior written notice is not feasible, then any reasonable notice (e.g., telephonic, oral, personal email, or by mail promptly after the furlough) is permissible.