Trump Administration memo opens door to mass sickout by ATC

POST SCRIPT: The U.S. Government partial shutdown ended Friday following a month-long political stalemate. The final tipping point has been widely attributed to morning disruption caused by staffing issues at LaGuardia Airport and other en-route air traffic control centers causing significant delays across the U.S. aviation system. Friday morning’s disruption was born from an Office of Personnel Management memo (first reported below) that circulated on Thursday among ATC staff nationally that enabled sick leave without penalty, forcing the end of the shutdown.

First posted Friday at 10:05 a.m. ET:

A sharp increase in staffing issues at ATC centers around the U.S. may signal a tipping point in the month-long partial government shutdown.

Thursday, an interpretation of an Office of Personnel Management memorandum obtained by The Air Current related to Senate bill 24 the Government Employee Fair Treatment Act of 2019, circulated amongst air traffic controllers nationally, opening the door to an unofficial sick-out by essential staff responsible for the country’s airspace navigation.

The bill, signed on January 16 by President Trump, ensures that furloughed government employees will be paid at the conclusion of the government shutdown.

As of Friday morning flights into New York’s La Guardia Airport were being slowed due to staffing issues and the Federal Aviation Administration is reporting “staffing” issues in Boston and Jacksonville Centers responsible for air traffic on those regions. The Air Current spoke with several Air Traffic Controllers Thursday evening who said the interpretation would open the door for staff calling in sick.

A coordinated labor action by ATC staff is prohibited by U.S. law.

The interpretation circulated  by a NATCA staffer at Boston Center of OPM’s official guidance for “excepted employees” under the law to permit approved leave as a furlough, meaning sick leave will be paid back and to staff and not charged against their overall bank of leave.

“I would never imply that we’re going to abuse sick leave, and the mere suggestion that we’re doing so to get free leave is considered a job action punishable by law…however it is cold and flu season and our contractual protections regarding sick leave still apply so I personally wouldn’t be surprised if people’s self assessment regarding their fitness for duty becomes much more stringent,” said one controller.

“This could easily be the straw that breaks the back of all this,” the controller added. “The problem is most of us feel responsible and duty bound to show up and keep the airspace safe. So by not showing up you’re really only screwing your friends and making them work shorter than we usually do.”

ATC staff, responsible for the safe and efficient operation of the the U.S. aviation system, have strict guidelines on what constitutes sickness and their fitness to guide the nation’s air traffic.

A NATCA spokesman did not immediately respond to a request for comment.

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January 24, 2019
Guidance on Implementation of S. 24, the “Government Employee Fair Treatment Act of 2019”

Legislation

On January 16, 2019, President Trump signed the “Government Employee Fair Treatment Act of 2019” (S. 24).  This Act can be found at https://www.congress.gov/bill/116th-congress/senate-bill/24.  The Act amends the Antideficiency Act provision codified in 31 U.S.C. 1341 to authorize retroactive pay for Federal employees affected by a lapse in appropriations.

Scope

The section 1341 amendments apply to any lapse in appropriations that begins on or after December 22, 2018.  Thus, the section 1341 amendments apply to the current lapse that began on December 22, 2018, and any future lapse.

The section 1341 amendments apply to each employee of the United States Government or of a District of Columbia public employer.  This guidance deals with application of the section 1341 amendments to employees of the United States Government.  The term “employee” in this guidance refers to an employee of the United States Government.

The section 1341 amendments do not apply to “exempt” employees or work activities—i.e., employees or work activities that are not affected by a lapse in appropriations because they are paid through an independent funding source.

Definition of “Excepted Employee”

Under section 1341(c)(1)(D), an “excepted employee” is defined as “an excepted employee or an employee performing emergency work, as such terms are defined by the Office of Personnel Management” (OPM).

In this guidance, the term “excepted employee” includes “an employee performing emergency work.”  OPM understands the reference to “an employee performing emergency work” to be a reference to an employee performing work in connection with “emergencies involving the safety of human life or the protection of property” as described in 31 U.S.C. 1342.

OPM is defining “excepted employee” to mean any employee who is authorized to perform work during a lapse in appropriations as “authorized by law” (including, but not limited to, 31 U.S.C. 1342), as provided under 31 U.S.C. 1341(a)(1)(B) and under guidance concerning lapses in appropriations issued by the Office of Legal Counsel of the Department of Justice (DOJ OLC) and the Office of Management and Budget (OMB) implementing that provision of law.  (See the “References” section at the end of this memorandum.)

Employees are considered to be “excepted” from a shutdown furlough when they are performing “excepted work activities” as defined in DOJ and OMB guidance, or when they are approved to use paid leave under section 1341(c)(3).  (See “Treatment of Excepted Employee” section below.)  An employee may be excepted during certain lapse periods and furloughed during other lapse periods.

For the purposes of this guidance, we consider work performed “by necessary implication” as described in DOJ OLC guidance to be “excepted” from the furlough.  For example, for the purpose of this guidance, an employee performing authorized orderly shutdown activities (as described in OMB and DOJ guidance) is considered to be an “excepted employee” while performing those activities.  Similarly, another example could be an employee who supports work related to the protection of life or property (e.g., cutting the checks for a benefit program that is itself fully funded and necessary to preservation of life) would be considered to be performing excepted work.

Treatment of Furloughed Employees

Under section 1341(c)(2), an employee who is furloughed as the result of a lapse in appropriations must be paid for furlough periods that occurred during the lapse.  After the lapse ends, retroactive pay is provided at the employee’s “standard rate of pay.”  If the pay cannot be provided on the normal pay date for the given pay period, it must be provided at the earliest date possible after the lapse ends.

Consistent with longstanding policies in implementing similar laws, a furloughed employee is not entitled to retroactive pay for furlough periods if the employee had been previously (before the lapse) scheduled to be in nonpay status during those periods.  For example, an employee may have scheduled leave without pay (LWOP) for an extended period or be in a suspension status (i.e., pay suspended based on an adverse action).  In effect, those already-in-place periods of nonpay status override the furlough status.  The “standard rate of pay” for such previously scheduled periods of nonpay status is zero. In addition, employees who were directed to perform excepted work during a lapse in appropriations but failed to report to duty may be placed in absent without leave (AWOL) status for missed work hours, in accordance with agency policy and procedures.  For such an employee, the “standard rate of pay” for AWOL hours is also zero.

For furloughed employees, the “standard rate of pay” is the pay the employee would have received for the furlough hours had the lapse in appropriations not occurred and the employee had performed work.  It includes the following types of payments:

• the employee’s rate of basic pay;
• overtime and other premium pay for regularly scheduled work;
• regular premium payments (such as law enforcement availability pay); and
• allowances and differentials payable on a regular basis.

Except for the nonpay status hours described in the second paragraph of this section, the nonpay status furlough periods are converted to pay status periods with the payment of retroactive pay for those periods.  For the purpose of any pay, leave, or benefit entitlements, furlough hours for which retroactive pay is received are considered paid hours of work.  Rules related to periods of nonpay status are not applicable.  For example, furloughed employees will accrue annual and sick leave as if they had been in pay status during the furlough periods.  The furlough hours will also be considered to be paid hours of work in applying overtime rules, including the Fair Labor Standards Act overtime rules.

In providing retroactive pay for furlough hours, employees may not be charged paid leave (e.g., annual leave and sick leave) or other paid time off (e.g., compensatory time off in lieu of overtime, for travel, or for religious purposes; credit hours under a flexible work schedule).  All paid leave and other paid time off was automatically cancelled because of the lapse in appropriations.  There is no legal authority to revoke those cancellations and charge employees for paid leave or other paid time off.

Treatment of Excepted Employees

Pay

Under section 1341(c)(2), an excepted employee who is required to work during a lapse in appropriations must be paid for those work periods occurring during the lapse.  After the lapse ends, retroactive pay is provided at the employee’s “standard rate of pay.”  If the pay cannot be provided on the normal pay date for the given pay period, it must be provided at the earliest date possible after the lapse ends.

For excepted employees, the “standard rate of pay” for excepted hours of work is the pay the employee is entitled to for the actual hours of work under the normally applicable pay rules.  For example, if an excepted employee performed additional overtime work beyond the normal requirements for his or her job, he/she would be paid for that actual overtime work.

Leave

Section 1341(c)(3) establishes a new requirement, providing that excepted employees who are required to perform work during a lapse in appropriations “shall be entitled to use leave” under 5 U.S.C. chapter 63, if applicable (or under other applicable law if chapter 63 is not applicable), but that compensation for the leave will be paid after the lapse ends.  The use of such paid leave is subject to the normally applicable rules for the applicable leaveprogram, including leave request and approval procedures.  While excepted employees have the option to use their paid leave (i.e., establish entitlement to paid leave to be paid after the lapse ends), they are not required to use leave to cover periods of authorized absence from work.  Instead, they may choose to remain in the default status of being furloughed during any such authorized absence during the lapse. We expect employees generally to choose to allow the default furlough status to be applied to any approved absence, since section 1341(c)(2) provides retroactive pay for furlough periods without charge to leave.  (See “Treatment of Furloughed Employees” section for guidance on furlough hours.)

References

• Letter to the President from Benjamin R. Civiletti, 5 U.S. Op. Off. Legal Counsel 1 (Jan. 16, 1981)—located at https://www.justice.gov/file/22536/download
• Government Operations in the Event of a Lapse in Appropriations, 1995 WL 17216091 (O.L.C. Aug. 16, 1995)—located at https://www.justice.gov/opinion/file/844116/download
• Office of Management Budget M-18-15, Revised (Jan. 19, 2018)—located at https://www.whitehouse.gov/wp-content/uploads/2017/11/m-18-05-Final.pdf
• OPM Funding Lapse Information Page—located at www.opm.gov/ShutdownFurlough