(September 29, 2023) As promised from our last correspondence, here is an update to our previous message based on specific questions we asked OPM and their responses (highlighted in yellow) along with FAQs they compiled. Recall from our message, additional information can be found in The Office of Personnel Management (OPM) shutdown furlough guidance: Furlough Guidance (opm.gov). You can check this link to see any updates or addendums to this guidance on a daily basis.
How is the “standard rate of pay” computed for employees whose work is excepted?
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. 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. 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).
May an excepted employee take previously approved paid time off or be granted new requests for paid time off during a shutdown furlough?
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. 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.
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.
If an employee has an approved leave request prior to the shutdown, that leave is canceled. However, if an employee chooses to request leave for that same period that was previously canceled, they can do so by submitting a new leave request. Is that correct?
That is correct but it is important to note this is not a different bucket of leave. It will still come out of the employee’s leave balance if they request leave under 31 USC 1341(c)(3). As the OPM guidance notes, 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). There’s the expectation that employees will generally 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. In other words, the employee should make it clear they are seeking to take the time off. The default would be furlough unless the employee requests the leave under Title 31. Either way, the employee will eventually get back pay after the shutdown, but the Title 31 option means their leave balance will get reduced. The employee needs to find out from their agency how they want to handle such requests.
If approved leave is canceled and the employee wants to remain absent during that period where leave was canceled, the employee can request to be placed on furlough by contacting the manager. Is it a manager's discretion whether to require the employee to report for duty even if an employee requests to be placed on furlough?
It would be better to characterize this as a request to take time off opposed to being furloughed. If the manager is amenable to the employee taking time off, the employee can, but is not required to request “leave” under 31 USC 1341(c)(2). If they don’t request it under this authority, they are put into furlough status during the approved time off. However, just like any other request to take time off from work, a manager has discretion to approve or disapprove such requests under the agency policy and applicable collective bargaining agreement requirements.
Employees are encouraged to work directly with their supervisor to resolve questions about approved leave.
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