Today, the Office of Personnel Management (OPM) issued a new memorandum in response to questions as to whether properly scheduled use-or-lose annual leave that was unable to be used due the shutdown may be restored to both employees required to work and those furloughed.
As you know, during a lapse in appropriations, all paid leave or other paid time off is cancelled. Under 5 U.S.C. 6304(d)(1), annual leave in excess of an employee’s annual leave ceiling is to be restored if it is forfeited because of “exigencies of the public business” when the leave was scheduled in advance. Under 5 CFR 630.308(a), this means the leave had to be scheduled before the start of the third biweekly pay period prior to the end of the leave year.
Before the shutdown commenced, OPM and the Office of Management and Budget (OMB) determined that a lapse in appropriation qualifies as an exigency of the public business for purposes of annual leave restoration. Therefore, according to OPM, as long as the leave was properly scheduled in writing no later than November 24, 2018, agencies must restore any annual leave that was forfeited because of the lapse in appropriations—regardless of whether the affected employees were furloughed or excepted from the furlough. However, OPM noted that any previously restored annual leave that was due to expire at the end of the 2018 leave year and was subsequently forfeited, may not be restored again even if the forfeiture was due to the lapse in appropriations.
As this shutdown continues, we will provide additional updates as they become available.