10 Questions About Furloughed Employees Answered

Unless the House of Representatives can pass a budget to fund the federal government by midnight Sept. 30, the federal government will shut down at 12:01 a.m. Oct. 1. Thousands of employees and federal contractors would be furloughed as a result, meaning they must stop work and will not be eligible for pay or certain benefits.

Here are some of the most frequently asked questions about employees affected by government shutdowns.

1. Once the government reopens, will furloughed workers be paid for missed work time? The Government Employee Fair Treatment Act of 2019 was enacted to provide furloughed federal employees with retroactive pay. However, nonexempt, furloughed federal contractor employees do not have to be paid retroactively for hours or days of a partial government shutdown that they did not work, unless Congress dictates otherwise, and it typically has not for contractor workers in past furloughs, noted Alfred Robinson Jr., an attorney with Ogletree Deakins in Greenville, S.C.

Exempt, furloughed federal contractor workers are entitled to their regular salary for any workweek in which they perform any work or if they work a partial workweek during the shutdown. If the furlough lasts for an entire workweek and the exempt federal contractor employee does not perform any work during the week, the employer does not need to pay the employee for the workweek, said Libby Henninger, an attorney with Littler in Washington, D.C.

2. Can federal contractors’ employees be fired during a government shutdown? Yes, if they are at-will employees, Robinson said. He added that most contractors will not discharge furloughed workers because they will need them back once the shutdown ends.

3. Are furloughed federal employees and furloughed federal contractor workers eligible for unemployment compensation? These employees may become eligible for unemployment compensation, but state unemployment compensation requirements differ. Some states require a one-week waiting period before an individual qualifies for payments. Federal employees who qualify for unemployment compensation during furloughs often must return the money after the government reopens and they receive back pay. Federal workers who must work without pay during the furlough are not eligible for unemployment compensation, the U.S. State Department said in its Furloughed Employees Handbook.

4. If a federal employee is scheduled to take Family and Medical Leave Act (FMLA) time off during a shutdown furlough period, does the time off count toward the employee’s 12-week FMLA leave entitlement? No, according to the Office of Personnel Management's (OPM's) Guidance for Shutdown Furloughs.

5. If a federal contractor worker is scheduled to take FMLA time off during a shutdown furlough, may the worker be furloughed? Yes, but the request for FMLA leave cannot be used as a selection reason. If an employer's business activity has temporarily ceased and employees are not expected to report for work for one or more weeks, the days the employer's activities have ceased do not count against an employee's FMLA leave entitlement, according to FMLA regulations.

6. Can federal employees take other jobs while on furlough? A career furloughed employee may seek employment without advanced authorization and can provide to an unemployment office any evidence that they are seeking work if that is required to apply for unemployment compensation in a state, notes the OPM's Guidance for Shutdown Furloughs. Some states may suspend this requirement for furloughed workers. While furloughed, an individual remains a federal government employee, so the executive standards of ethical conduct apply. In addition, some statutes prohibit certain outside activities and some agency-specific supplemental rules require prior approval of and sometimes prohibit outside employment. As a result, before engaging in outside employment, federal employees should review these regulations and consult their agency ethics official.

7. Can a furloughed employee—whether working for the federal government or a federal contractor—volunteer to do their job without pay? No. This would violate wage and hour laws, as well as limitations on voluntary services for federal employees.

[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]

8. Can federal employees who are required to work without pay during the shutdown earn premium pay, such as overtime? Yes. Such employees who meet the conditions for overtime pay, Sunday premium pay, night pay, availability pay and other premium payments will be entitled to such premium pay once Congress passes and the president signs a new appropriations bill or continuing resolution, the Guidance for Shutdown Furloughs states.

9. Does a shutdown furlough affect the accrual of a federal employee’s annual and sick leave? No. If a federal employee was scheduled to be in paid status but for the furlough, the employee will receive the regular pay for furlough periods retroactively after the shutdown ends, and there will be no effect on the accrual of annual and sick leave. However, if an employee was previously scheduled to be in an unpaid status, the worker will remain in an unpaid status, which can affect the accrual of annual and sick leave.

10. How are federal employees affected if, during a shutdown furlough, their federal office is closed or announces a change in operating status due to an emergency or severe weather? Furloughed federal employees will not be affected if their federal office is closed or announces a change in operating status, and they will remain in furlough status. Federal employees who must work during the furlough will follow normal emergency operating procedures during a federal office closure, which may result in these workers being placed in furlough status for any hours of work not performed.