How to Handle FMLA Leave During a Government Shutdown

​Editor's Note: Congress passed legislation to fund the federal government and President Joe Biden signed it just before midnight Sept. 30. The measure will keep the government open through Nov. 17, 2023.

During a government shutdown, there will inevitably be some federal employees and government contractors who are scheduled to be out on vacation, paid time off, or Family and Medical Leave Act (FMLA) leave. HR professionals need to understand how to properly administer that leave, which would become unpaid.

"In the context of a government shutdown, the Office of Personnel Management (OPM) specifically advises employees on FMLA leave that they begin a leave without pay, since there is no work schedule from which to take FMLA leave. At that point, all FMLA and paid time off during a shutdown furlough period is cancelled, since the requirement to furlough supersedes employee FMLA leave requests and any other paid time off," said Jeff Nowak, an attorney with Littler in Chicago.

Any previously scheduled FMLA leave would not be deducted from the employee's FMLA entitlement during a furlough, Nowak confirmed.

During regular government operations, it's common for workers to use their paid time off concurrently with their unpaid FMLA leave, so they don't have to go without pay. In addition, federal employees are eligible for paid parental leave under a leave provision signed into law in 2019.

Various types of paid leave, such as vacation days, parental leave, military leave, court leave, and bone marrow or organ donor leave, would become unpaid and not count against the employee's allotment during a government shutdown. An employee must be placed in furlough status without pay during any paid time off scheduled to be taken during a lapse in appropriations, the OPM's September 2015 Guidance for Shutdown Furloughs states.

"If there's a paid leave that is paid by the government, there's no authority for them to provide that pay [during a furlough] because it's shut down," said David Mohl, an attorney with Jackson Lewis in Atlanta. "The paid time off creates a debt to the government that's not legally authorized. There's no source of funding until that gets worked out."

Employers should give a furlough notice to workers who are scheduled to be on FMLA leave during a government shutdown, unless they're not expected to work during the furlough period, such as a one-year leave period without pay to accompany a military spouse overseas, according to the OPM's December 2021 Guidance for Shutdown Furloughs.

Accurate record-keeping for FMLA leave can ensure legal compliance during a furlough.

"You want to have clear documentation of when people are at work and when they're not," Mohl said. "Good, sound documentation is always important."

Millions Impacted

Approximately 4 million military and civilian employees will be affected if Congress shuts down the federal government. About 2.2 million of those are federal employees, and the rest are active-duty military and reservists, according to the American Federation of Government Employees, the largest union of federal employees.

Certain federal workers must continue working without pay during a shutdown. Other federal jobs aren't tied to annual appropriations and are funded by other means. Employees who must continue to report to work during a furlough include those performing work involving law enforcement, national defense, or protection of life and property. Examples are postal workers, federal prison guards, Federal Bureau of Investigation agents, Border Patrol and immigration enforcement agents, airport security screeners, and air traffic controllers, Reuters reported.

If a federal employee who is expected to work during the furlough experiences medical or family issues that qualify for FMLA leave, the employer should place the employee on furlough status without pay, and the furlough period should not count against the employee's FMLA entitlement, the 2021 OPM guidance states.

In most cases, furloughed federal employees will receive backpay after Congress passes a budget and the furlough ends. A furloughed federal employee is not entitled to retroactive pay if they had been previously scheduled to be on unpaid leave during the furlough period, the 2021 OPM guidance states.