OPM Furlough Pay Processing Guidance

[James48843]

This just came out this morning:

--------------------------------

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT
Washington, DC 20415
The Director
OCT 1 7 2013

MEMORANDUM FOR CHIEF HUMAN CAPITAL OFFICERS
From: ElaineKaplan {L: j{~
Acting Director

Subject: Pay and Benefits for Employees Affected by the Lapse in Appropriations
The President has signed legislation restoring annual appropriations and allowing the immediate
return to duty in a pay status of all Federal civilian employees who have been affected by the
lapse in appropriations that began on October 1, 2013. In addition, the legislation provides
retroactive compensation for furloughed Federal employees covering the period of the lapse in
appropriations. The purpose of this portion of the legislation is to make furloughed Federal
employees whole by ensuring that they receive their "standard rate of compensation" for the
entire period of the lapse in appropriations as soon as practicable after the lapse in appropriations
ends.

The attached guidance has been prepared by the U.S. Office of Personnel Management (OPM) in
consultation with the Office of Management and Budget (OMB). It is intended to assist agencies
in administering pay and benefits for employees affected by the lapse in appropriations. This
includes employees who were furloughed and employees designated as "excepted" from the
. furlough pursuant to the applicable legal requirements--e.g., employees requ4"ed to respond to
emergencies involving the safety of human life or the protection of property or employees
perfom1ing functions related to the orderly suspension of agency operations.
For additional guidance, agency Chief Human Capital Officers and Human Resources Directors
may contact the OPM contacts listed in the attachment. Employees should contact their agency
human resources offices for assistance.

Attachment
cc: Human Resources Directors


Attachment
-------------------------

2013 Furlough and Pay and Leave Benefits

An excepted employee who performed work during the lapse in appropriations may now
be paid for that work. For periods oftime during which an employee was furloughed due
to the lapse in appropriations that began on October 1, 2013, the employee must receive
the same pay he or she would have received for an equivalent amount of work performed
for the agency.

Therefore-
• An employee is entitled to receive his or her rate of basic pay for all periods of
time from October 1, 2013, until the end ofthe lapse in appropriations, during
which he or she would have been in a pay status but for the lapse of
appropriations;
• In the case of a General Schedule within-grade increase that was delayed because
of time in a non-pay status, the within-grade increase must be made effective on
the date it was originally due (assuming all statutory and regulatory requirements
for within-grade advancement have been satisfied);
• An employee who was regularly scheduled to perform overtime work or to
perform work at night or during a period for which any other form of premium
pay would otherwise be payable is entitled to receive overtime pay, night pay, or
other premium pay as if the work had been performed;
• Allowances, differentials, and other payments otherwise payable on a regular
·basis (e.g., administrative uncontrollable overtime pay and law enforcement
availability pay) must be paid as if the employee actually continued to work; and
• All periods oftime from October 1, 2013, until the end ofthe lapse in
appropriations, during which an employee would, but for the lapse in
appropriations, have been in a pay status (including regularly scheduled overtime
hours and standby duty) must be considered "hours of work" for pay
administration purposes under the Fair Labor Standards Act.

Leave Accrual for Furloughed Employee
An employee furloughed during the lapse in appropriations that began on October 1,
2013, must now be considered to have been in a pay status from October 1, 2013, until
the end of the lapse in appropriations. As a result, agencies must adjust the employee's
leave account for proper recredit of any lost accrual of annual and sick leave due to being
in a nonpay status. Since the employee is retroactively placed in a pay status, annual and
sick leave will accrue in accordance with the normal rules.

Excused Absences
Except as provided below, for furloughed employees who would otherwise be in pay
status but for the lapse in appropriations, absences from October 1, 2013, until the end of
the lapse in appropriations, are considered excused absences and may not be charged to
any other form of paid leave (i.e., annual leave, sick leave, or other paid leave),
compensatory time off in lieu of overtime, compensatory time off for travel, religious
compensatory time off, or credit hours under a flexible work schedule.

NOTE: While employees are considered to be in an excused absence status when
being paid retroactively for furlough periods, employees should follow the guidance
of their respective Shared Service Payroll Provider for the recording of time and
attendance to ensure that all employees are paid at their standard rate of
compensation. Employees may be required to code furlough time as regular duty
instead of excused absence to ensure that they are paid properly and promptly.

Preapproved Leave Without Pay (L WOP)
In the case of an employee who was on preapproved L WOP during the lapse in
appropriations, absences from October 1, 2013, until the end of the lapse in
appropriations, must continue to be charged to L WOP for the duration of the period of
approved L WOP.

(END PART 1)
(CONTINUED NEXT PAGE)

 

[James48843]

(OPM INFORMATION PAGE 2- continued)

Family and Medical Leave Act (FMLA)

Under FMLA an employee is entitled to 12 weeks ofunpaid leave during any 12-month
period and may elect to substitute paid leave (including annual leave, sick leave, or any
other form of paid time off), consistent with current laws and OPM's regulations. During
the lapse in appropriations, affected employees who would otherwise be in pay status
must be (1) at work performing excepted activities, or (2) furloughed. Agencies were
instructed to cancel any paid leave (including FMLA paid leave) during the furlough
period. Under the recent legislation, furloughed Federal employees are made whole by
ensuring that they receive their "standard rate of compensation" for the entire period of
the lapse in appropriations. For employees who were otherwise scheduled to be in
nonpay status, the standard rate of compensation is zero.

Accordingly, employees on
FMLA leave during the furlough period, should be treated as follows:

• FMLA L WOP Throughout Furlough Period. An employee scheduled and
preapproved to take L WOP under FMLA throughout the furlough period
continues to be charged LWOP. The employee is not entitled to receive excused
absence.

• Scheduled Use of Both Unpaid and Paid FMLA Leave Intermittently. For
any days during the lapse in appropriations on which an employee was previously
scheduled to be in L WOP status under FMLA, the employee will remain in that
status. For any days during the lapse in appropriations on which the employee
was scheduled to be in FMLA paid leave status, the employee will be provided
excused absence, consistent with the treatment of other employees who had
previously scheduled paid leave that was cancelled due to the lapse in
appropriations.

• 12-week Entitlement. Since the legislation provided for retroactive application
of the employee's "standard rate of compensation," the employee will continue to
receive any previously invoked FMLA coverage during the furlough period
and covered time (paid or unpaid) counts toward the 12-week entitlement.


"Use or Lose" Annual Leave

Both employees and agencies should make every effort to schedule, within the time limits
specified by regulation, any additional "use or lose" annual leave made available to an
employee whose previously approved annual leave was canceled during the lapse in
appropriations. If, however, the employee is unable to reschedule such annual leave and
it is forfeited at the end of the leave year, the amount of annual leave that was canceled
during the lapse in appropriations may be considered for restoration under 5 CFR
630.308 (56 Comp. Gen. 393 (1977)).

Donated Annual Leave

Under the voluntary leave transfer program (VL TP) and voluntary leave bank program
(VLBP), an employee may be entitled to receive donated annual leave if he or she is
experiencing a medical emergency that would place him or her in a leave without pay
(L WOP) status for a 24-hour period. During the lapse in appropriations, the use of
donated annual leave was cancelled, and the leave recipient remained in a leave without
pay status.

• Since the leave recipient was officially in a L WOP status, the employee is not
entitled to excused absence.

• A leave recipient can retroactively substitute donated annual leave for any period
of L WOP that began on or after the date fixed by the agency as the beginning of
the medical emergency under 5 CFR 630.909(d) and 5 CFR 630.1009(d).

• Agencies should provide an employee who qualifies for VL TP or VLBP an
opportunity to make any adjustments in accordance with applicable law and
regulation.

Holidays
• Except as provided below, an employee affected by the lapse in appropriations will
receive his or her regular holiday pay for the Columbus Day holiday (including the
"in lieu of' holiday, if applicable) and, if applicable, holiday premium pay for work
performed by an employee during his or her normal hours of duty on the holiday, plus
overtime pay for work in excess of the normal hours of duty on the holiday). Also, if
an employee was regularly scheduled to work on the Columbus Day holiday and was
instead furloughed, the employee is now entitled to holiday premium pay, as
discussed in the "Pay" section above.
• An employee who was on preapproved L WOP from October 1, 2013, until the end in
the lapse of appropriations, must continue to be charged L WOP for the duration of
the period approved as L WOP. If such an employee was on L WOP on both the last
workday before the Columbus Day holiday and the first workday after the holiday, he
or she will not be paid for the holiday. This is consistent with our longstanding
guidance and a Comptroller General decision (56 Comp. Gen. 393 (1977)).
Alternative Work Schedules (AWS)
• Each agency should have a policy specifying when flexible work schedules must be
established and when they may be changed. Normally, such schedules are established
in advance of the pay period involved. Under such a policy, an A WS nonworkday
cannot be changed after the pay period begins.
Retirement Deductions and Actions
• Retirement deductions under the Civil Service Retirement System or the Federal
Employees Retirement System must be deducted from the employee's retroactive
basic pay for the period from October 1, 2013, until the end of the lapse in
appropriations. The employing agency must also contribute to the Retirement Fund
its corresponding share for the retroactive payment. The total retirement deductions
and agency contributions for each employee should equal the amount that would have
been withheld and contributed had the employee not been affected by the lapse in
appropriations. These amounts should be remitted to OPM using the normal
procedures for retroactive adjustments.
• The period of retroactive pay is fully creditable for retirement purposes and is not
considered L WOP.
• Agencies should process retirement actions effective during the period from
October 1, 2013, until the end ofthe lapse in appropriations, as follows:
o For employees who, on or before the requested retirement date, submitted
·some notice of their desire to retire, agencies should make the retirement
effective as of the date requested. The retirement request may be informal
(such as a letter requesting retirement and can be either mailed or personally
submitted to the agency (even if put under the door). Any additional required
paperwork, such as the formal retirement application form, may be completed
after the date of enactment. No time periods after the effective date of the
retirement may be considered as duty time, since the individual would no
longer be an employee of the agency.
o Some employees may request retirement retroactive to a date prior to
submission of the request. The Comptroller General has issued guidance
permitting retroactive personnel actions (including retirements) only under
limited enumerated circumstances-i.e., "where administrative or clerical
error (1) prevented a personnel action from being effected as originally
intended, (2) resulted in nondiscretionary administrative regulations or
policies not being carried out, or (3) has deprived the employee of a right
granted by statute or regulation." (See (3) has deprived the employee of a right
granted by statute or regulation." (See 58 Comp. Gen. 51, at 53(1978.) It will
be up to the employing agency to determine in each case whether the
Comptroller General's criteria have been met.
• If any retirement application has been delayed because of the lapse in appropriations,
it should be quickly processed and submitted to OPM so that OPM will be able to
begin annuity payments as soon as possible.

Thrift Savings Plan (TSP)

Agencies and employees should refer to the TSP website (guidance specific to the impact
of the lapse on TSP accounts is available here) or contact their agency representative for
infmmation. Agency representatives may contact the Federal Retirement Thrift
Investment Board at (202) 942-1450 for additional information.

Federal Employee Health Benefits Program (FEHBP), Federal Employee's Dental
and Vision Insurance Program (FEDVIP), Federal Long Term Care Insurance
Program (FL TCIP), and Flexible Spending Accounts (FSAFEDS)

Some employees may be eligible to reenroll or change enrollment because of an event
that occurred during the period from October 1, 2013, until the end in the lapse of
appropriations. In cases where the effective date would normally be the first day of the
first pay period following the day the employing office receives the enrollment form,
agencies should be flexible about approving earlier effective dates (as if the employee
had submitted the enrollment form immediately following the event).

• Deductions and contributions for FEHBP and each enrolled employee should equal
the amount that would have been deducted and contributed had the employee not
been affected by the lapse in appropriations. These amounts should be remitted to
OPM using the normal procedures for any retroactive adjustments as necessary.

• Deductions for FED VIP and FL TCIP should equal the amount that would have been
deducted had the employee not been affected by the lapse in appropriations. These
amounts should be remitted to BENEFEDS using the normal procedures for any
retroactive adjustments as necessary.

• Deductions for FSAFEDS should equal the amount that would have been deducted
had the employee not been affected by the lapse in appropriations. These amounts
should be remitted to Automatic Data Processing, Inc., (ADP) using the normal
procedures for any retroactive adjustments as necessary.


(END OF PAGE 2)

 

[James48843]

(OPM PAGE 3 INFORMATION)


Life Insurance

Because all affected employees will be paid for the period from October 1, 2013, until the
end in the lapse of appropriations, life insurance deductions and contributions for each
enrolled employee should equal the amount that would have been deducted and
contributed had the employee not been affected by the lapse in appropriations. These
amounts should be remitted to OPM using the normal procedures for any retroactive
adjustments as necessary.


Unemployment Compensation for Federal Employees (UCFE)

• The UCFE Instructions to Federal Agencies advise that whenever a retroactive
payment is made, the Federal agency must check the agency file of Forms ES-931
received to determine if the recipient ofthe retroactive payment filed a claim for
unemployment benefits within the last 52 weeks and, if so, the agency should inform
the state unemployment insurance (UI) agency of the amount and period covered by
the retroactive payment.

• The state UI agency will determine whether or not an overpayment exists and,
generally, the recovery of the UCFE overpayment is a matter for state action under its
law; however, some state UI laws require the employer to recover such overpayment
by collecting the overpayment amount from the employee. The Federal and state
agencies will need to coordinate to determine the required action in accordance with
the individual state UI law. Federal agencies are encouraged to develop lists or
spreadsheets that can be provided to the state(s) containing the employees' names,
Social Security numbers, and the amounts and periods of time covered by the
retroactive payment.


Documentation of Personnel Actions

• Prior to the shutdown furlough resulting from the lapse in appropriation on October 1,
2013, agencies were instructed not to prepare SF-50 documentation ofthe furlough at
the outset and advised that further instructions on the appropriateness of preparing an
SF-50 would be provided once an appropriation had been signed. Accordingly,
agencies do not have to process an SF-50 to document the shutdown furlough that
began on October 1, 2013, nor should the furlough be recorded with any document
designated for long-term filing in the Official Personnel Folder (and if SF-50s were
processed in error documenting the furlough such SF-50s must be cancelled citing
001/Cancellation with legal authority ATM/5 U.S.C. 302).

• Agencies need not provide a furlough notice to an employee who did not receive a
notice during the lapse in appropriations.

(END OF OPM INFORMATION)