State Approves Law to Protect Feds in Future Shutdowns, and OPM Clarifies Leave Donations

As Congress continues to consider an array of bills aimed at preventing future government shutdowns or providing aid to workers impacted by lapses in appropriations, Maryland officials have stepped into the breach with their own protections for federal workers.

On Tuesday, Republican Gov. Larry Hogan signed the Federal Shutdown Paycheck Protection Act, which was passed out of the Maryland General Assembly earlier this month. According to Maryland Matters, the law sets up a new Federal Government Shutdown Employee Assistance Loan Fund, where the state would issue temporary financial assistance in the form of no-interest loans to federal employees who are forced to work without pay during a lapse in appropriations.

Additionally, a provision of the law paves the way for excepted federal workers to apply for unemployment benefits, provided that the Labor Department changes its guidance that currently bars such employees from the program. Furloughed employees already may apply for unemployment benefits in Maryland during the shutdown, but they must pay those benefits back if and when they receive retroactive pay.

The law applies to all federal employees whose worksite is in Maryland.

Meanwhile, the Office of Personnel Management last week issued additional guidance on the impact of the 35-day partial government shutdown on federal employees’ ability to donate expiring “use or lose” annual leave.

In a memo to agency heads, acting OPM Director Margaret Weichert said her office has received a number of requests to clarify the shutdown’s impact on leave donations, given the timing of the lapse in appropriations at the end of last year.

Since the onset of a shutdown cancels all scheduled leave, the same is true if an employee was scheduled to be on leave that has been donated, Weichert wrote.

“During the lapse in appropriations, all previously scheduled paid leave was cancelled,” she wrote. “Thus, any scheduled use of donated annual leave was also cancelled. An employee whose use of donated annual leave was cancelled due to the lapse in appropriations is not entitled to retroactive pay . . . for the affected periods.”

But recipients of donated leave may still retroactively claim that leave for a period where they were forced to take leave without pay during the shutdown, provided that it falls within an approved medical emergency or in connection with an emergency leave transfer program that has been established due to a natural disaster, Weichert stated.

“Because leave recipients who are affected by the lapse in appropriations as described above will only receive pay if they receive donated annual leave that they can retroactively substitute for periods of [leave without pay], it is important that timely donations of ‘use or lose’ annual leave be permitted to be processed,” she wrote. “Given that, but for the lapse of appropriations, agencies would have processed submitted applications to donate [leave] before the end of the leave year, OPM deems it appropriate for agencies to accept 2018 ‘use or lose’ annual leave donations as if they were timely processed.”