FURLOUGH

Questions & Answers

GENERAL

Q1. What is a FURLOUGH?

A1. A furlough is the placing of an employee in a temporary nonduty, nonpay status because of lack of work or funds, or other nondisciplinary reasons.

Q2. What is a SHUTDOWN?

A2. An emergency closure (resulting in the furlough of employees) caused by a lapse in appropriations or other unforeseeable circumstances.

FURLOUGHS CAUSED BY LAPSED APPROPRIATIONS (SHUTDOWN)

Q3. Would all employees be furloughed if a government shutdown occurred?

A3. No. The governing laws allow for certain categories of employees to continue working; generally, these employees are either directly or indirectly involved in the "protection of life or property". For this purpose, the terms "excepted", "emergency", and "essential" are interchangeably used to describe employees who would work during a government shutdown.

Q4. How would the government ensure that a shutdown occurred in an orderly manner?

A4. There are employees specifically designated as those involved in "orderly shutdown" activities - they would be responsible for making the arrangements to shutdown non-essential operations. Their duties might include: securing facilities, powering down equipment, leaving appropriate voicemail messages, etc. After their duties were completed, employees involved in orderly shutdown would either go into a furlough status (if non-essential) or continue working (if essential). The amount of time devoted to orderly shutdown will vary and could be as little as 1/2 day.

Q5. How will employees know if they are designated "essential", "orderly shutdown", both, or neither?

A5. Employees will be notified in advance of any government shutdown what their status would be. To resolve any uncertainty, employees should verify their status with their immediate supervisors in advance of an anticipated government shutdown.

Q6. For furloughs necessitated by lapsed appropriations (shutdowns), is an agency required to provide 30 calendar days advance written notice and an opportunity to respond prior to issuing a decision to furlough?

A6. No. OPM's regulations provide for emergency furlough without the necessity for advance written notice proposing the action.

Q7. In the event of lapsed appropriations, can an employee be furloughed without first receiving a written notice of decision to furlough?

A7. 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 an emergency furlough (shutdown). When prior written notice is not feasible, reasonable notice (telephonic or oral) is permissible.

Q8. If a furlough begins on October 1st due to a lapse of appropriations, will employees receive a paycheck for the last pay period in September?

A8. Under the current OMB guidance, employees will receive this paycheck. Although the payroll for this last pay period in Fiscal Year 1995 will be processed in October, and potentially during a period of furlough, the minimum number of payroll staff necessary for this process will be exempt from furlough for the minimum time required to issue the checks, including checks for the last pay period in September. Employees involved in ensuring that paychecks were received would be in the "orderly shutdown" category discussed in #4 above.

Q9. What about lump-sum annual leave payments to employees separating at the end of the fiscal year? Are the funds paid out of FY 1995 monies or FY 1996?

A9. The obligation of funds for a lump-sum annual leave payment is triggered by the employee's separation from service. For example, if an employee separates on September 30, 1995, the money to pay the lump-sum annual leave payment is obligated during FY 1995. Although the lump-sum payment would be made in FY 1996, it would be paid from FY 1995 funds.

In the event of a lapse of appropriations, agencies are allowed to employ staff to perform activities necessary for the orderly suspension of non-excepted activities. As explained above, this includes the processing of personnel payroll for the periods prior to the lapse in appropriations. A minimum number of payroll staff necessary for this process will be exempt from furlough for the minimum time required to issue checks, including checks for lump-sum annual leave payments paid from funds obligated before the lapse in appropriations.

If an employee separates during lapse of appropriations, the lump-sum annual leave payment would be delayed until enactment of an appropriation that would allow the obligation of funds for this purpose.

FURLOUGHS TO SAVE MONEY

Q10. When the purpose of the furlough is to save money, may an agency effect the furlough action discontinuously (e.g., one workday per week for 15 weeks) rather than consecutively if it wishes to do so?

A10. Nothing in law or regulation prohibits discontinuous furloughs, and they have been upheld by the Merit Systems Protection Board on appeal. Moreover, discontinuous furloughs can benefit both employees and the agency by distributing the furlough days over time, thereby minimizing the financial impact on employees as well as lessening disruption of agency services to the public.

Q11. How will the decision letter be framed if the agency has not yet determined the specific number of furlough days that will be required when the letter is issued?

A11. When possible, it is desirable to inform the affected employee of a specific number of days in the decision letter. However, the agency needs only to set out the maximum time that may be involved.

EMPLOYEE COVERAGE AND PROCEDURAL REQUIREMENTS

Q12. What procedures apply to probationers, employees under temporary limited appointments in the competitive service, employees who are nonpreference eligible employees in the excepted service with less than 2 years of continuous service, and similar categories of employees?

A12. There are no mandated procedures; however, agencies should ensure that all procedures required by negotiated labor agreements or internal personnel policies are followed. More specific information regarding applicable negotiated agreements or internal personnel procedures can be obtained from your servicing personnel office.

Q13. What about SES appointees?

A13. SES career and noncareer appointees may be furloughed.

Q14. Would employees who are detailed or assigned outside the agency during part, or the entire period, of furlough be subject to furlough?

A14. Employees on a reimbursable detail from the agency would not NECESSARILY be subject to furlough due to lack of funds if full reimbursement continued. If reimbursement were reduced or eliminated, the employee would be subject to furlough. When an employee will be paid by an outside organization for part (but not all) of the furlough period, the agency may adjust the employee's furlough period to reflect the length of the reimbursable detail. Federal employees assigned to non-Federal organizations who are on leave without pay from their Federal positions may continue working. Where managerial discretion exists, your organization will make its decisions known in advance of any furlough period.

Q15. How is a furlough handled for employees on flexible or compressed work schedules under an alternative work schedules (AWS) program?

A15. For an employee on a flexible work schedule with no daily work requirement, the furlough will be expressed in terms of the number of hours of the required furlough, rather than in terms of the number of days or specific dates or times. If a furlough is expressed in terms of the number of days, for a full-time employee under a flexible work schedule, the length of a furlough day is 8 hours. For a part-time employee under a flexible work schedule, the length of a furlough day is the number of hours the employee is scheduled to work in order to fulfill the basic work requirement during the biweekly pay period, divided by the number of days that comprise the employee's biweekly tour of duty.

For an employee on a compressed work schedule, a furlough is scheduled for the days and times during which employees otherwise would be scheduled to work under the compressed work schedule. The length of a furlough day under a compressed work schedule is the same as the length of the employee's compressed workday; e.g., the length of a furlough day under a 4/10 compressed work schedule is 10 hours.

Q16. How is a furlough handled for part-time employees?

A16. Furloughs of part-time employees will be computed based on their work schedule and be proportionately equivalent to the number of furlough days scheduled for full-time employees,

Q17. What about employees who work on a seasonal or intermittent basis?

A17. Seasonal employees are recalled to duty at identified periods of the year in accordance with preestablished conditions. Intermittent employees are non-full-time employees without a regularly scheduled tour of duty. Neither group would be called for work during the period in which furloughs are scheduled.

EMPLOYMENT DURING FURLOUGH

Q18. May employees take other jobs while on furlough?

A18. Yes. However, the Executive Branch standards of ethical conduct, which include rules on outside employment, continue to apply to employees on furloughs. Additionally, there are statutes which prohibit certain outside activities. Agencies also may have varying supplemental rules regarding the requirement for prior approval of outside employment, and some prohibit certain types of employment. Therefore, before engaging in outside employment, employees should review these regulations and then consult the Office of General Counsel to learn if there are any DoC-specific supplemental rules governing Commerce employees. Furloughed employees may, absent any agency restrictions, accept temporary appointments with other Federal agencies during furlough.

Q19. What happens to employees' benefits (e.g., retirement, health benefits, life insurance, leave) if they receive temporary appointments in another agency while furloughed?

A19. The leave, retirement, health benefits, and life insurance all should be handled as if the employees had been transferred.

Q20. May an employee volunteer to do his or her job on a nonpay basis during a furlough period?

A20. No. Unless otherwise authorized by law, an agency may not accept the voluntary services of an individual.

Q21. May an employee work on a furlough day in exchange for taking a day off at another time for religious observances?

A21. No. The statute that permits employees to take compensatory time off for religious observances does not authorize an agency to accept the voluntary services of any individual on a furlough day. Periods of time worked in exchange for taking time off for religious observances must be scheduled on non-furlough days.

SERVICE CREDIT FOR VARIOUS PURPOSES

Q22. Is furlough or leave without pay (LWOP) a break in service?

A22. No, both merely place employees in a nonpay status.

Q23. To what extent does nonpay status affect civil service benefits and programs?

A23.

For CAREER TENURE, the first 30 calendar days of each nonpay period is creditable service.
For COMPLETION OF PROBATION, a total of 22 workdays in a nonpay status is creditable service.
For QUALIFICATION PURPOSES, 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.
For TIME-IN-GRADE requirements, nonpay status is creditable service.
For RETIREMENT purposes, an aggregate nonpay status of 6 months in any calendar year is creditable service. Coverage continues at no cost to the employees while in a nonpay status. When employees are in a nonpay status for only a portion of a pay period, their contributions are adjusted in proportion to their basic pay. The exception would be an employee who had substantial time in a nonpay status earlier in the year if the furlough causes him or her to have a total of more than six months time in a nonpay status during the calendar year.
For HEALTH BENEFITS, enrollment continues for no more than 365 days in a nonpay status. The nonpay status may be continuous or broken by periods of less than four consecutive months in a pay status.
The government contribution continues while employees are in a nonpay status. The employee can choose between paying the agency directly on a current basis or having the premiums accumulate and be withheld from his or her pay upon returning to duty.
For LIFE INSURANCE, coverage continues for 12 consecutive months in a nonpay status without cost to the employees. The nonpay status may be continuous or it may be broken by a return to duty for periods of less than four consecutive months.
For WITHIN-GRADE INCREASES, an aggregate of 2 workweeks nonpay status in a waiting period is creditable service for advancement to steps 2, 3, and 4 of the General Schedule; four workweeks for advancement to steps 5, 6, and 7; and six workweeks for advancement to steps 8, 9, and 10. For prevailing rate employees (WG, WL, and WS schedules), an aggregate of one workweek nonpay status is creditable service for advancement to step 2, three weeks for advancement to step 3, and four weeks for advancement to steps 4 and 5.
For ANNUAL AND SICK LEAVE, when an employee accumulates 80 hours of nonpay status, his or her annual and sick leave credits are reduced by an amount equal to the amount of leave the employee earns during that pay period. When computing annual leave accrual rates, creditable service is limited to a total of 6 months per calendar year in a nonpay status.
For REDUCTION IN FORCE, an aggregate of 6 months nonpay status in a year is creditable service.
For SEVERANCE PAY, nonpay status time is fully creditable for the 12-month continuous employment period. However, for purposes of determining service creditable towards the computation of an employee's severance pay, no more than 6 months of nonpay status time per calendar year is creditable service.
For the THRIFT SAVINGS PLAN, please contact your Servicing Human Resources Advisor.
For MILITARY DUTY or WORKERS' COMPENSATION, nonpay status for employees who are performing military duty or being paid workers' compensation counts as a continuation of Federal employment for all purposes upon the employee's return to duty.

RETIREMENT

Q24. When a furlough occurs during the three years of service prior to retirement, what effect will time in a furlough status have on an employee's high-3 average?

A24. Generally there will be no effect on the high-3 average unless the furlough causes the employee to be in a nonpay status for more than 6 months during the calendar year.

Q25. Are the retirement rules concerning the effect of a furlough the same for employees under the Civil Service Retirement System and the Federal Employees Retirement System?

A25. Yes.

Q26. What happens to retirement and insurance in a DISCONTINUOUS furlough?

A26. As explained above, retirement credit is not affected as long as an employee does not exceed 6 months of nonpay status in a calendar year. Retirement deductions are taken on the basic pay the employee earns during the pay period.

Federal Employees Health Benefits (FEHB) premiums are deducted from the employee's pay. If the employee's pay is insufficient to cover the FEHB premium, he or she can pay the premium directly to the agency or have it withheld from pay when he or she returns to regular duty. The enrollment continues for up to 365 days of nonpay status. The nonpay status may be a continuous period or it may include an employee's return(s) to pay status for a period(s) of less than 4 consecutive months.

Federal Employees Group Life Insurance coverage continues, and contributions made by the employee and the employee's agency continue if the employee's salary in each pay period is sufficient to cover deductions. If the employee's salary is insufficient to cover his or her withholding, the employee's coverage will continue for up to 12 months without cost to the employee or the employee's agency.

Q27. What happens if employees cancel FEHB coverage while in a nonpay status in order to avoid the expense?

A27. Employees are cautioned not to cancel FEHB coverage to avoid payment of premiums while in a nonpay or reduced- pay status. Normally, an employee must wait for an FEHB open season to re-enroll. Further, cancellation of FEHB coverage may affect an employee's right to carry such coverage into retirement or while in receipt of workers' compensation.

THRIFT SAVINGS PLAN CONTRIBUTIONS

Q28. Can employees obtain a loan from their TSP account based on ANTICIPATED financial hardship resulting from the furlough?

A28. No. As stated on page 26 of the "Thrift Savings Plan Loan Program" booklet, to qualify for a TSP hardship loan, the financial information you provide on the loan application must demonstrate that one or both of the following situations apply:

your regular monthly expenses exceed your net monthly assets to draw upon, and/or
you have incurred certain defined extraordinary expenses (uninsured personal casualty loss, legal costs associated with separation or divorce, or unpaid cost of household help or improvements due to illness or accident) that cannot be covered by one month's net income and you do not have enough savings or other financial assets upon which to draw.

These requirements reflect both a means test and hardship arising from unforeseen events. Furthermore, as discussed in TSP Bulletin 95-15, "TSP Fact Sheet: Effect of Nonpay Status on TSP Participation," loan payments are made through payroll allotments. Thus, if you are in a nonpay status (i.e., furlough), you are not eligible for a TSP loan.

HOLIDAYS

Q29. May employees be furloughed on a holiday?

A29. Employees may be furloughed for periods of time that include holidays.

Q30. If employees are furloughed on the last workday before a holiday or the first workday after a holiday (but not on both days), will they be paid for the holiday?

A30. Yes. The general rule is that employees are entitled to pay for a holiday so long as they are in a pay status on either the workday preceding a holiday or the workday following a holiday. Employees are paid for the holiday based on the presumption that, but for the holiday, the employee would have worked.

Q31. If employees are furloughed on the last workday before a holiday AND the first workday after a holiday, will they be paid for the holiday?

A31. No. If a furlough includes both the last workday before the holiday and the first workday after the holiday, the employee is not entitled to pay for the holiday because there is no longer a presumption that, but for the holiday, the employee would have worked on that day.

REQUESTS FOR LEAVE DURING FURLOUGH

Q32. If employees request annual, sick, court, military leave, or leave for bone marrow or organ donation after receiving a notice proposing specific days of furlough, can the requests be denied for those days that coincide with the dates of furlough? If an agency has approved requests for these categories of leave before issuance of the proposed furlough notice, can the approval be rescinded and the employees furloughed on the days that coincide with the dates of furlough?

A32. The answer to both questions is yes. However, management may choose to furlough an employee at another time if there is no requirement that the employee be furloughed at a given time or in a given order. The agency may designate whichever days it chooses as furlough days. If employees request leave for a day designated as a furlough day, the agency is not required to grant leave. Further, if employees have been granted leave for a day subsequently designated as a furlough day, that leave is automatically canceled because the necessity to furlough supersedes leave rights.

Q33. If an employee properly schedules "use-or-lose" annual leave before the start of the third biweekly pay period prior to the end of the leave year, but is unable to use some or all of the scheduled leave because of a furlough, does the furlough constitute an "exigency of the public business" that permits an agency to restore the leave after the beginning of the new leave year?

A33. Employees in this situation should make every effort to reschedule "use-or-lose" annual leave for use before the end of the current leave year. However, if this is not possible, agency heads (or their designees) may exercise their discretionary authority to determine that an 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 lack of work or funds.

Q34. If an employee is on leave under the Family and Medical Leave Act of 1993 (FMLA) during furlough days, do the furlough days count towards the 12-week entitlement to FMLA leave?

A34. No. An employee cannot take leave (either paid or unpaid) under the FMLA on days that coincide with the dates of furlough. Therefore, the furlough days cannot be counted towards the 12-week entitlement to FMLA leave.

Q35. To what extent would sick or annual leave be available to "essential" employees during a government shutdown?

A35. Essential employees are so designated because of the need for their services, so it stands to reason that they would be expected to be present for duty as scheduled under most non-emergency circumstances. This is the same rationale for essential employees being required to report for duty when inclement weather has resulted in the excusal of non-essential employees.

For example, physical incapacitation would obviously warrant sick leave, while a scheduled routine exam would not. A leave-approving official is not precluded from approving a request for non-emergency annual leave, on a case-by-case basis, taking into account the nature of the request and the availability of a substitute essential employee.

LEAVE WITHOUT PAY (LWOP)

Q36. If employees are on approved LWOP, can the LWOP be terminated and the employees furloughed?

A36. Yes. The LWOP can be terminated, but if there is no expectation that the employees may return to duty on the proposed furlough days, it is unnecessary to cancel the LWOP, since there is no work or funds involved. However, if the employees may potentially return to duty during the approved LWOP, the agency may propose to furlough on the days of approved LWOP and cancel the LWOP.

LEAVE IN LIEU OF FURLOUGH

Q37. May agencies allow employees to use leave without pay (LWOP) in place of furlough? How about annual or sick leave?

A37. Agencies may allow employees to elect days of LWOP instead of furlough days. LWOP would be a nonpay status and accomplish the same cost savings. However, agencies may not require employees to take a specified number of days or hours of LWOP. Annual or sick leave is not appropriate if the furlough is for lack of funds because the employees would be in a pay status, contrary to the intent of the furlough.

Q38. May an employee voluntarily request LWOP for a holiday?

A38. No. A holiday is considered a "nonworkday" for leave purposes. Therefore, an employee may not request or be granted LWOP for a holiday. However, if an employee is on LWOP on the last workday before a holiday and the first workday after a holiday, he or she is not entitled to pay for the holiday. (See Holidays.)

TEMPORARY DUTY OR TRAVEL STATUS

Q39. What happens to non-essential employees who are in a temporary duty or status at the time a furlough due to shutdown is invoked?

A39. Ideally, most non-essential employees in either temporary duty or travel status could be recalled in anticipation of a government shutdown. Those who could practically be recalled at the outset of a government shutdown would be considered "orderly shutdown" employees and would terminate their government duties immediately upon return. At this time, it is unclear whether there will be ANY EXCEPTIONS made for situations which would be impractical and/or costly to terminate, as this matter is still under government-wide review. A decision is expected prior to October 1st.

CONTINUATION OF PAY (COP)

Q40. If employees are receiving COP due to job-related injuries, can the COP be terminated or interrupted by furlough?

A40. No. According to the Department of Labor, employees are maintained on COP status during periods of furlough.

INJURY WHILE ON FURLOUGH OR LWOP

Q41. If employees are injured while on furlough or LWOP, are they eligible for workers' compensation?

A41. No. Workers' compensation is paid to employees only if they are injured while performing their duties. Employees on furlough or LWOP are not in a duty status for this purpose.

UNEMPLOYMENT COMPENSATION

Q42. Are employees entitled to unemployment compensation while on furlough?

A42. Employees may be eligible for unemployment compensation, especially if they are on consecutive furlough days. However, state unemployment compensation requirements differ. For example, many states require employees to wait until the second week of a furlough before benefits may be paid. Therefore, agencies or employees should submit their questions to the appropriate State office. Finally, the Department of Labor (DoL) is considering the feasibility of developing special procedures for federal employees that would expedite filing of their claims in the event of a shutdown. If DoL decides to implement such procedures, agencies will be notified later this month.

Q43. If I am eligible for unemployment compensation, what will my benefits be?

A43. Benefits are based on salary and state benefit levels, as well as on the applicant's workplace or duty station. According to the Department of Labor, unemployment benefits are based on the rules of the STATE IN WHICH THE EMPLOYEE'S DUTY STATION IS LOCATED. The maximum unemployment benefit in the District currently is $347 a week; in Maryland, it's $250 a week, and in Virginia, $208 a week. It is our intention to make DoL information available for other locations as well.

PERFORMANCE AWARDS AND WITHIN-GRADE INCREASES

Q44. If an agency intends to grant performance awards to employees, can the payment be delayed until after the furlough?

A44. Yes.

Q45. Are agencies required to pay performance awards to any group of employees, including those in the SES?

A45. No.

Q46. May agencies deny or delay within-grade or step increases for white-collar and blue-collar employees?

A46. Within-grade and step increases for white-collar and blue-collar 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 General Schedule employee in steps 1, 2, or 3 of the grade who is furloughed for more than 2 workweeks during the waiting period would have his or her within- grade increase delayed by at least a full pay period.

FURLOUGH UNDER REDUCTION-IN-FORCE PROCEDURES (GENERAL)

Q47. When is an agency required to use reduction-in-force (RIF) procedures to furlough employees?

A47. Agencies must follow RIF procedures when furloughing employees for 31 or more continuous calendar days, or for 23 or more discontinuous workdays. Furloughs for shorter periods are covered under Adverse Action procedures.

Q48. Is there a maximum period an employee may be furloughed?

A48. Yes. An employee may be placed on a RIF furlough only when the agency plans to recall the employee to his or her position within 1 year. Therefore, the furlough may not exceed 1 year.

Q49. If an agency needs to furlough employees for more than 30 calendar days (or 22 workdays), must the complete RIF procedures be followed?

A49. Yes. The complete RIF procedures must be followed, including a minimum 60 days specific written notice of the RIF furlough action.

Q50. What happens to temporary employees serving under appointments limited to 1 year or less in RIF furlough situations?

A50. An agency may not retain a temporary employee in pay status to furlough a competing employee in the same competitive level. Temporary employees may be either separated or furloughed in such situations, but they are not entitled to the protections of adverse actions or RIF procedures when this occurs.

Time spent in furlough status by temporary employees counts the same as time in a pay status toward their appointment's not-to-exceed date and the 2-year limit on their overall service.

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