Shutdown Leave and Telework Guidance Provided by OPM

The Office of Personnel Management (OPM) released two memos to agencies Wednesday recommending greater flexibility for employees designated as “excepted” — those employees who have worked without pay during the shutdown.

In the memos, OPM encouraged agencies to permit excepted employees to telework more frequently, permit flexible start and stop times under a flexible work schedule, and provide employees with the ability to request time off based on their personal circumstance, to the extent possible and appropriate.

“While the shutdown has affected all furloughed workers of the federal workforce, many employees performing excepted duties during the furlough have the additional hardship of losing their subsidies for childcare and transit benefits but continuing to incur childcare and commuting expenses in order to continue reporting to work,” said OPM Acting Director Margaret Weichert.

A specific part of OPM’s leave memo clarifies how excepted employees can take leave during the partial government shutdown as follows:

Section 1341(c)(3) establishes a new requirement, providing that excepted employees who are required to perform work during a lapse in appropriations “shall be entitled to use leave” under 5 U.S.C. chapter 63, if applicable (or under other applicable law if chapter 63 is not applicable), but that compensation for the leave will be paid after the lapse ends. The use of such paid leave is subject to the normally applicable rules for the applicable leave program, including leave request and approval procedures.

While excepted employees have the option to use their paid leave (i.e., establish entitlement to paid leave to be paid after the lapse ends), they are not required to use leave to cover periods of authorized absence from work. Instead, they may choose to remain in the default status of being furloughed during any such authorized absence during the lapse.

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We expect employees generally to choose to allow the default furlough status to be applied to any approved absence, since section 1341(c)(2) provides retroactive pay for furlough periods without charge to leave.

The memos are below:

– Leave: https://chcoc.gov/content/government-employee-fair-treatment-act-2019
– Telework:  https://chcoc.gov/content/telework-and-other-workplace-flexibilities-excepted-employees-during-lapse-appropriations