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How the Government Shutdown Impacts Employee Leave Requests

As of midnight December 21, 2018, 380,000 federal employees were placed on furlough.  An additional 420,000 are considered “excepted” and have continued working without pay.  Federal employers and employees should be aware of how the government shutdown impacts both paid time off requests as well as approved FMLA leaves.

According to the Office of Personnel Management Guidance for Shutdown Furloughs, employees who are furloughed are on a leave without pay.  Therefore, there is technically no job to take leave from.  All paid time off during a shutdown furlough period is cancelled as the requirement to furlough supersedes employee leave requests and other paid time off rights.  This is because paid time off creates a debt to the government that is not legally authorized.  This rule extends to both furloughed and “excepted employees,” which include employees who are (1) performing emergency work involving the safety of human life or the protection of property, (2) performing minimal activities as necessary to execute an orderly suspension of agency operations related to non-excepted activities, or (3) performing certain other types of excepted work.

Any previously scheduled FMLA leave will be treated as a leave without pay and will not be counted towards an employee’s FMLA entitlement.  If an excepted employee faces circumstances that would normally qualify them for FMLA leave, the employee is placed in a furlough status, which does not count against their FMLA leave entitlement.  This means that if the government is shut down during a furloughed employee’s FMLA leave, the furloughed employee will be entitled to his or her full leave once their employing agency or department resumes operations.

Federal employers should ensure that they are properly administering FMLA leaves during the government shutdown.

Jackson Lewis P.C. © 2019


About this Author

David Mohl Employee Leave Attorney

David Mohl is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. His practice focuses on proactive and preventative advice and counsel, with an emphasis in the area of leave management, focusing on the Americans with Disabilities Act, Family and Medical Leave Act, paid sick leave, and related leave statutes and policies.

Mr. Mohl has a wide range of labor and employment law experience, including disability leave management, wage and hour, discrimination, harassment, employment agreements, restrictive covenants, training, and...