Shutdown Back Pay to be Provided As Soon As Possible, OPM Says

President Trump signed legislation last week that provides appropriations through February 15, 2019. The legislation allows all federal employees who were affected by the lapse in appropriations that began on December 22, 2018, to return to duty.

Federal law provides retroactive pay for federal employees affected by the recent lapse in appropriations as soon as possible after the lapse ends, regardless of scheduled pay dates including employees who were furloughed, as well as employees who were required to perform excepted work activities during the lapse.

“The U.S. Office of Personnel Management (OPM) is aware of the difficulties created by the lapse in appropriations, ” OPM said in a memo Sunday. “We are committed to ensuring that retroactive pay is provided as soon as possible. As a result, we appreciate the support of all human resources, payroll and shared service centers to work towards this goal.”

“OPM encourages agencies to be as flexible as possible as we get our employees back to work,” the agency wrote. “Due to the length of the lapse, we anticipate that some employees may face extenuating circumstances or personal challenges that impact their ability to return to work on their next workday immediately following the end of the lapse. Accordingly, we encourage managers to take these individual challenges into consideration, and to the extent possible, provide appropriate flexibility to employees who are facing legitimate difficulties that may delay their return to work.”

Highlights of OPM’s memo as it relates to pay, retirement and other benefits is below.

Pay

Under 31 U.S.C. 1341(c), Federal employees affected by the lapse in appropriations that began on December 22, 2018, and ended on January 25, 2019, must receive retroactive pay at the employee’s “standard rate of pay” for the lapse period as soon as possible after the lapse ends. (See also the guidance on the Government Employee Fair Treatment Act of 2019, which was enacted on January 16, 2019: CPM 2019-04, at https://www.chcoc.gov/content/government-employee-fair-treatment-act-2019.)
An excepted employee who performed work during the lapse in appropriations may be paid for that work. The “standard rate of pay” for excepted hours of work is the pay the employee is entitled to for actual hours of work under the normally applicable pay rules. For example, if an excepted employee performed additional overtime work beyond the normal requirements for his or her job, he/she would be paid for that actual overtime work. All excepted hours of work are time in a pay status for pay, leave, and benefit purposes.
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 the employee had 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 of appropriations.

– An employee receives retroactive pay for furlough time without being charged paid leave, since a lapse in appropriations generally prevents the use of paid leave. (However, see the section entitled “Leave and Other Paid Time Off Use and Charge” regarding the possible use by excepted employees of paid leave in place of furlough time.)

– 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 (before the lapse) scheduled 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, employees who were directed to perform excepted work during a lapse in appropriations but failed to report to duty were 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.

Agencies have the flexibility to grant limited amounts of excused absence (administrative leave) for nonwork periods after the lapse is over if deemed necessary based on extenuating personal circumstances that delay the employee’s return to duty.

Leave and Other Paid Time Off Use and Charge

In general, paid leave may not be used during a lapse in appropriations. However, under a newly enacted provision in 31 U.S.C. 1341(c)(3), an excepted employee is permitted to use paid leave under 5 U.S.C. chapter 63 (or other applicable law, if the employee is not covered by chapter 63) during a lapse in appropriations—but payment for that leave could not be made until after the lapse has ended. Such use of paid leave during a lapse in appropriations is subject to the normally applicable leave request and approval procedures. While excepted employees have the option of requesting paid leave during a lapse, they are not required to use paid leave to cover an absence from duty. The default approach is to treat any authorized absence from duty during a lapse as a furlough period. As explained in the “Pay” section, retroactive pay at the standard rate of pay is provided for furlough periods without charge to leave. Based on the above, if an excepted employee requested and was authorized to use paid leave during the lapse that commenced on December 22, 2018, the employee will be charged for that leave and receive pay for that leave under the normal leave rules—and may not receive retroactive pay under 31 U.S.C. 1341(c)(2) for those paid leave hours.

Consistent with the normal leave rules, an excepted employee may not use paid leave during periods when the employee is found to be AWOL.

An excepted employee may not be charged compensatory time off in lieu of overtime, compensatory time off for travel, religious compensatory time off, credit hours under a flexible work schedule, or time off under a time off award for any absence during the lapse in appropriations.

For furlough time during the lapse in appropriations, an employee may not be charged any form of paid leave (e.g., annual leave or sick leave) or other type of paid time off (e.g., compensatory time off in lieu of overtime, compensatory time off for travel, religious compensatory time off, credit hours under a flexible work schedule, or time off awards).

An employee previously approved to be on advanced annual and/or advanced sick leave during the lapse in appropriations also had this leave cancelled. Since employees would have been considered in a pay status during the advance leave period, they will be considered in a pay status during the lapse period and covered by the retroactive pay provisions under 31 U.S.C. 1341(c).

Leave Accrual

An employee furloughed during the lapse in appropriations must now be considered to have been in a pay status to the extent that he or she would have been in a pay status but for the lapse in appropriations. As a result, agencies must adjust the employee’s leave account for proper recredit of any lost accrual of annual or sick leave due to being in a nonpay status. Since the employee is retroactively placed in a pay status, annual and sick leave will accrue in accordance with the normal rules.

Excepted employees earned pay and accrued leave during the periods they performed excepted work activities—even though no payments could be made during the lapse. With the payment of retroactive pay, agencies should ensure that excepted employees’ leave accrual is properly credited.

Restoration of “Use or Lose” Annual Leave

As provided in CPM 2019-02 issued on January 9, 2019, the U.S. Office of Personnel Management (OPM) and the Office of Management and Budget determined that a lapse in appropriation qualifies as an exigency of the public business for purposes of annual leave restoration. Therefore, as long as the leave was properly scheduled in advance, agencies must restore any annual leave that was forfeited because of the lapse in appropriations—regardless of whether the affected employees were furloughed or excepted from the furlough.

For employees on the standard biweekly pay period cycle, the annual leave ceiling is applied on January 5, 2019, which was the end of the 2018 leave year. In order for forfeited annual leave to be considered for restoration under 5 U.S.C. 6304(d)(1), it must have been scheduled in writing no later than November 24, 2018, in accordance with 5 CFR 630.308(a). Employing agencies are responsible for determining whether an employee met the advance scheduling requirement, based on OPM regulations and agency policies and procedures. As allowed by those agency policies and procedures, the “in writing” requirement may be met in various ways, including electronic communications such as email, electronic calendar scheduling, or submissions to a time and attendance system.

Any previously restored annual leave that was due to expire at the end of the 2018 leave year under 5 CFR 630.306 or 630.309, and was subsequently forfeited, may not be restored again—even if the forfeiture was due to the lapse in appropriations.

For further guidance, please see CPM 2019-02 at https://chcoc.gov/content/restoration-annual-leave-employees-affected-lapse-appropriations

“Use or Lose” Annual Leave Scheduled for December 24, 2018

As noted above, in order for forfeited annual leave to be considered for restoration under 5 U.S.C. 6304(d)(1), it must have been scheduled in writing no later than November 24, 2018, in accordance with 5 CFR 630.308(a).

For an employee who did not meet that advance scheduling requirement for leave scheduled on December 24, any annual leave on that day that is forfeited at the end of the leave year may not be restored.

For an employee who did meet the advance scheduling requirement for leave scheduled on December 24, the establishment of a holiday by the President does not constitute an exigency of the public business. Thus, annual leave forfeited because the December 24 holiday prevented its use cannot be restored just because the holiday prevented usage of the leave. (See Comptroller General decision B-182549, August 22, 1975.)

However, if the employee’s rescheduling and use of the leave (originally scheduled for use on December 24) to another workday before the end of the leave year (i.e., January 5, 2019, for most employees) was prevented by an exigency of the public business, the leave may be restored. For example:

If an employee attempted to reschedule the December 24th hours of annual leave on an available workday(s) before the lapse in appropriations commenced on December 22, but the agency did not approve the leave because of an exigency of the public business (e.g., work requirements), any leave forfeited because of that exigency may be restored.

If, but for the lapse in appropriations, an employee could have rescheduled the December 24th hours of annual leave on an available workday(s) during the period from December 22, 2018, through January 5, 2019, any of that leave that is forfeited may be restored—as long as the employee attests that he would have scheduled the leave before the end of the leave year but for the lapse. [NOTE: This scenario does not apply if the employee had scheduled annual leave on all workdays for the remainder of the leave year (through January 5, 2019). In that case, if there had not been a lapse, there would have been no possibility of rescheduling the December 24th hours of annual leave to another workday, since there were no available workdays. Since the option of rescheduling was not prevented by the lapse, the forfeited leave may not be restored.]

Retirement Deductions and Actions

Retirement deductions under the Civil Service Retirement System or the Federal Employees Retirement System must be deducted from the employee’s retroactive basic pay for the period from December 22, 2018, until the end of the lapse in appropriations. The employing agency must also contribute to the Retirement Fund its corresponding share for the retroactive payment. The total retirement deductions and agency contributions for each employee should equal the amount that would have been withheld and contributed had the employee not been affected by the lapse in appropriations. These amounts should be remitted to OPM using the normal procedures for retroactive adjustments.

The period of retroactive pay is fully creditable for retirement purposes and is not considered LWOP.

Agencies should process retirement actions effective during the period from December 22, 2018, until the end of the lapse in appropriations, as follows:

– For employees who, on or before the requested retirement date, submitted some notice of their desire to retire, agencies should 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 (even if put under the door)). Any additional required paperwork, such as the formal retirement application form, may be completed after the date of enactment. No time periods 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.

– Some employees may request retirement retroactive to a date prior to submission of the request. The Comptroller General has issued guidance permitting retroactive personnel actions (including retirements) only under limited enumerated circumstances—i.e., “where administrative or clerical error (1) prevented a personnel action from being effected as originally intended, (2) resulted in nondiscretionary administrative regulations or policies not being carried out, or (3) has deprived the employee of a right granted by statute or regulation.” (See 58 Comp. Gen. 51, at 53 (1978).) It will be up to the employing agency to determine in each case whether the Comptroller General’s criteria have been met.

If any retirement application has been delayed because of the lapse in appropriations, it should be quickly processed and submitted to OPM so that OPM will be able to begin annuity payments as soon as possible.

Voluntary Separations – Employee Requests to Change Effective Date

The effective date of a voluntary separation (e.g., retirement, resignation) is determined by the employee. An agency may permit an employee to withdraw his/her voluntary separation at any time before it has become effective, but the agency is not obligated to accept changes after the effective date has passed (see 5 CFR 715.202 and the CSRS and FERS Handbook part 41A3).

Thrift Savings Plan (TSP)

Agencies and employees should refer to guidance on the TSP website (www.tsp.gov) or contact their agency representative for information. Agency representatives may contact the Federal Retirement Thrift Investment Board at (202) 942-1450 for additional information.

Federal Employees Health Benefits (FEHB) Program

Some employees may be eligible to enroll or change enrollment because of a qualifying life event that occurred during the period from December 22, 2018, until the end of the lapse in appropriations. In cases where the effective date would normally be the first day of the first pay period following the day the employing office receives the enrollment request and that follows a pay period during any part of which the employee is in pay status, agencies may assign the effective date as if the employee had submitted the enrollment request immediately following the event.

If the 60-day period for an employee to submit an enrollment or change in enrollment ended during the period from December 22, 2018, until the end of the lapse in appropriations, agencies may use their belated enrollment authority to extend the period for the employee to submit the request for enrollment or change in enrollment.

Deductions and contributions for FEHB for each enrolled employee should equal the amount that would have been deducted and contributed had the employee not been affected by the lapse in appropriations. These amounts should be remitted to OPM using the normal procedures for any retroactive adjustments as necessary.

Federal Employees Dental and Vision Insurance Program (FEDVIP), Federal Long Term Care Insurance Program (FLTCIP), and Federal Flexible Spending Account (FSAFEDS) Program

Agencies should process deductions for FEDVIP and FLTCIP and allotments for FSAFEDS in accordance with the billing file and instructions received from BENEFEDS and Long Term Care Partners.

In general, there should have been no direct bills mailed to employees for missed FEDVIP or FLTCIP deductions due to the lapse in appropriations.

In general, FEDVIP, FLTCIP, and FSAFEDS deductions are not taken from retroactive pay but instead are deducted in adjusted amounts in future pay periods. There may be exceptions.

BENEFEDS and Long Term Care Partners will calculate the amount of any needed adjustments and include those in future billing files.

Amounts deducted should be remitted to BENEFEDS and Long Term Care Partners using normal procedures.

Employees who have questions may obtain more information at:

– www.BENEFEDS.com (for FEDVIP deductions and FSAFEDS allotments)

– www.LTCFEDS.com (for FLTCIP)

– www.FSAFEDS.com (for FSAFEDS claims)

Federal Employees’ Group Life Insurance (FEGLI) Program

Because retroactive pay will generally be provided for the period from December 22, 2018, until the end in the lapse of appropriations, life insurance deductions and contributions for each enrolled employee should equal the amount that would have been deducted and contributed had the employee not been affected by the lapse in appropriations. These amounts should be remitted to OPM using the normal procedures for any retroactive adjustments as necessary.

To read OPM’s full memo, go here.

Pay