eople walk by trash uncollected on the National Mall in Washington DC on the 12th day of the partial government shutdown Jan. 2, 2019. Image: Hiroko Tanaka / Shutterstock.com
By: FEDweek StaffFollowing is a recent report in question and answer format in which the Congressional Research Service describes the impact of government shutdowns on federal agency operations and therefore the employees working in them.
How do executive agencies prepare for a shutdown?
The Office of Management and Budget (OMB) provides instructions to executive branch agencies on how to prepare for and operate during a shutdown in the annually revised Circular A 11. The circular also establishes two “policies” regarding the absence of appropriations:
- a prohibition on incurring obligations unless the obligations are otherwise authorized by law; and
- permission for agency heads, in consultation with their general counsels, to decide what agency activities are excepted or otherwise legally authorized to continue during a lapse in appropriations.
The circular also directs agency heads to develop and maintain shutdown plans. These plans are sometimes called “contingency plans.”
OMB may also provide more detailed guidance to agencies in specific situations. These formalized communications typically occur through bulletins or memoranda. The documents may be issued to agencies in at least two ways:
- through means that are internal to the executive branch and are generally not readily visible elsewhere (e.g., posting on an OMB-administered website that cannot be readily accessed outside the executive branch), and
- through publicly visible means (e.g., posting a memorandum on OMB’s public website).
Where can I find an agency’s shutdown plan?
In recent years, agency shutdown plans have been posted on OMB’s public website.
When are agency shutdown plans updated?
Circular A-11 requires agencies to submit updated shutdown plans to OMB for review every odd numbered year on August 1. Based on that requirement, agency shutdown plans should be updated in 2025. In the event of a change in the source of funding for an agency program or any significant modification, expansion, or reduction in agency program activities, the agency is required to submit an updated shutdown plan to OMB reflecting the change.
When are agency shutdown plans implemented?
Circular A-11 indicates that OMB will notify executive agencies when shutdown plans are to be implemented. Historically, OMB has directed agency senior officials to review their shutdown plans one week prior to the expiration of appropriations bills, regardless of whether a shutdown appeared imminent. OMB has provided agencies with a draft communication template used to notify employees of the status of appropriations, which is typically transmitted to agency employees two days prior to the expiration of appropriations. OMB has also notified agencies when they should update employees on their individual statuses (furloughed or not) during a shutdown. If appropriations lapse, OMB is to direct agencies when to begin the shutdown activities outlined in their shutdown plans according to Circular A-11.
What information is included in an agency shutdown plan?
Shutdown plans are required to outline agency actions to be taken during a short-term lapse (one to five days). These plans must also identify changes to agency actions that will be taken if the lapse extends to more than five days. Agencies must also designate the personnel responsible for implementing the planned actions.
Circular A-11 requires agencies to describe in detail, for each agency component (e.g., a bureau size entity within a department), the following:
- To the extent that specific shutdown activities will not be completed within one half day, the nature of each such activity, together with the time and the number of employees necessary to complete the activity.
- The total number of employees in the component to be on board before implementation of the plan.
- The total number of employees in the component expected to be furloughed under the plan.
- The total number of employees to be retained in the component under the plan for each of the following categories: (1) employees whose compensation is financed by carryover funds or an appropriation provided by permanent law, (2) employees who are necessary to perform activities expressly authorized by law, (3) employees who are necessary to perform activities necessarily implied by law, (4) employees who are necessary to the discharge of the President’s constitutional duties and powers, and (5) employees who are necessary to protect life and property. If an employee fits in more than one category, he or she may be reflected in the count for all applicable categories (i.e., the count may be duplicated) in order to ensure the best estimate of the number of employees within each category.
- The agency’s legal basis for each of its determinations to retain categories of employees, including a description of the nature of the agency activities in which these employees will be engaged.
In practice, agencies may implement these requirements in different ways and in varying levels of detail.
What happens to a particular agency or program during a shutdown?
In short, it depends. If a particular agency or program is funded by an appropriations bill that lapses, that agency or program may be subject to a shutdown.
What is commonly referred to as the Antideficiency Act consists of a series of provisions and revisions incorporated into appropriations laws over the years relating to matters such as prohibited activities, the apportionment system, and budgetary reserves. These provisions, now codified in several locations in Title 31 of the United States Code, play a pivotal role in government shutdowns. The origins of the Antideficiency Act date back to 1870, when legislation provided [t]hat it shall not be lawful for any department of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in any contract for the future payment of money in excess of such appropriations.
In other words, the Antideficiency Act prevents agencies from entering into obligations in the absence of appropriations. The Antideficiency Act includes several exceptions. For example, employees whose duties involve the safety of human life or the protection of property may be told by an agency to come to work during the period in which funds are lapsed or unavailable.
Programs that are funded by laws other than annual appropriations acts—such as some entitlement programs—may or may not be affected by a funding gap. For example, although the funds needed to make payments to beneficiaries may be available automatically pursuant to permanent appropriations, the payments may be processed by employees who are paid with funds provided in annual appropriations acts. In such situations, the question arises whether a mandatory program can continue to function during a funding gap if appropriations were not enacted to pay salaries of administering employees.
Historically, at least some of these employees would not be subject to furlough, because authority to continue administration of a program could be inferred from Congress’s direction that benefit payments continue to be made according to an entitlement formula. That is, obligating funds for the salaries of these personnel would be excepted from the Antideficiency Act’s restrictions during a funding gap. However, such a determination would depend upon the absence of contrary legislative history in specific circumstances.
What happens to an executive branch employee during a shutdown?
What happens to a given executive branch employee may depend on several factors. If employees are not covered by a funded bill, then they may be put on shutdown furloughs or “excepted” from furlough and told to come to work. This report provides further discussion of these situations below.
What is a “shutdown furlough”?
A shutdown furlough is the placement of employees in a temporary, nonduty, nonpay status. The current framework used for shutdown furloughs in executive branch agencies is generally governed by a series of opinions issued by the Office of Legal Counsel in the Department of Justice regarding the applicability of provisions of the Antideficiency Act, including Title 31, Sections 1341-1342, of the U.S. Code. Among other things, the Antideficiency Act generally prohibits agencies from accepting voluntary services and employing personnel services exceeding those authorized by law, “except for emergencies involving the safety of human life or the protection of property.” In a shutdown, an agency may suddenly lack authority to obligate and spend certain funds due to a temporary lapse in annual appropriations or the expiration of an authorizing act that provides access to certain funds. When a lapse in funding occurs, the law requires agencies to cease activity and furlough employees, with some exceptions.
A shutdown furlough is considered an adverse action, which provides employees with certain notice and appeal rights under applicable regulations. Agencies are responsible for notifying employees of the furlough as soon as possible. The length of a shutdown furlough does not affect the furlough’s implementation procedures. OPM guidance explains: “For most employees, shutdown furloughs lasting 30 calendar days or less (22 workdays) are covered by … adverse action procedures.” Shutdown furloughs lasting longer than this duration are also covered by adverse action procedures, because the ultimate duration of a shutdown furlough is not known in advance. OPM advises, “When the shutdown furlough goes beyond 30 days, agencies should treat it as a second shutdown furlough and issue another adverse action or furlough notice.”
What are the effects of a shutdown furlough on employee pay and leave?
Before 2019, employees who were furloughed during a shutdown were not entitled to retroactive pay for the days furloughed. Nevertheless, in historical practice, federal employees who were furloughed under a shutdown received their salaries retroactively as a result of legislation to that effect.
After an extended shutdown in FY2019, Congress and the President enacted the Government Employee Fair Treatment Act of 2019 (P.L. 116-1), which statutorily requires retroactive pay for furloughed employees following the end of a lapse in appropriations.
The Antideficiency Act requires agencies to cancel paid time off scheduled during a shutdown furlough. In many situations, a shutdown furlough would not affect the accrual of annual leave and sick leave. OPM guidance explains, “If the employee was scheduled to be in a pay status but for the furlough, the employee will receive the employee’s regular pay for furlough periods, and there will be no effect on the accrual of annual and sick leave.” Generally, benefits such as health insurance continue during a shutdown furlough. However, federal employees may need to wait until they are returned to pay status before they can adjust their benefits.
What does it mean to be “excepted” from furlough?
Several types of executive branch officials and employees are not subject to furlough. These include the President, certain presidential appointees, and federal employees deemed “excepted.” OPM has described “excepted” employees, who are required to work during a shutdown, as “employees who are funded through annual appropriations who are nonetheless excepted from the furlough because they are performing work that, by law, may continue to be performed during a lapse in appropriations.” For example, employees whose duties involve the safety of human life or the protection of property may be told by an agency to come to work during the period in which funds are lapsed or unavailable. Additional specific exceptions may be authorized by law. According to OPM, “Agency legal counsel, working with senior agency managers, determine which employees are designated to be handling ‘excepted’ and ‘non-excepted’ functions.” An employee’s status as excepted or furloughed (non-excepted) may change over the course of a shutdown as needed. Excepted employees who are normally paid from annual appropriations would not receive pay for time worked during the shutdown period until funding resumes.
Making Sense of Personnel-Related Terms: Four That Begin with E
Excepted. In the executive branch, and in the context of a funding gap, the term excepted may refer to (1) the government activities that must continue during a funding gap and (2) the federal employees who are not furloughed and who must continue to come to work during a funding gap. Consequently, observers and practitioners may refer to both “excepted activities” and “excepted personnel.” This term comes from the possibility that some activities and personnel may, by law, be “excepted” from the Antideficiency Act’s general prohibitions on continued activity during a funding gap. The legislative and judicial branches are not guided officially by executive branch documents regarding the Antideficiency Act’s exceptions and related terms. However, they continue to be guided by the Constitution and the act itself and may look to executive branch guidelines as a point of reference.
Exempt. OPM defines exempt as referring to employees who are not subject to furlough, because the employees’ compensation is not funded by annually appropriated funds.
Emergency. In the executive branch, the term emergency is generally not used in the context of shutdowns. Rather, this term is primarily used in the context of a need for continuity of operations in certain situations, such as severe weather conditions, air pollution, power failures, interruption of public transportation, natural disasters, and other situations in which significant numbers of employees are prevented from reporting to work or when agencies need to cease all or part of their activities. So-called emergency employees are the employees who must report for work notwithstanding these situations.
Essential. Sources sometimes use the term essential instead of excepted. In the legislative branch, at least one source has referred to nonfurloughed employees as “essential,” although this terminology was not used consistently across the branch and may have varied across offices and agencies. In the executive branch, this term was used similarly in the early 1980s. Since then, the term has largely disappeared from official use in the executive branch in favor of excepted, in part to prevent a colloquial interpretation of the term essential as referring to relative importance or value. In congressional hearings that focused on the first FY1996 shutdown, some witnesses regretted that the terms nonessential and essential had been used to describe employees subject to furlough and not subject to furlough, respectively. Use of the term nonessential was a misnomer and demeaning, they said.
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See also,
Legal: How to Challenge a Federal Reduction in Force (RIF) in 2025
The Best Ages for Federal Employees to Retire
Alternative Federal Retirement Options; With Chart
Primer: Early out, buyout, reduction in force (RIF)
Retention Standing, ‘Bump and Retreat’ and More: Report Outlines RIF Process
FERS Retirement Guide 2025 – Your Roadmap to Maximizing Federal Retirement Benefits
