Updated November 13, 2023

Lapse Plan Summary Overview
Estimated time (to nearest half day) required to complete shutdown activities:	7 days
Total number of agency employees expected to be on board before implementation of the plan:	2,869 FTEs

Total number of employees to be retained under the plan for each of the following categories:
Compensation is financed by a resource other than annual appropriations:	2071 FTEs
Necessary to perform activities expressly authorized by law:	0 FTEs
Necessary to perform activities necessarily implied by law:	187 FTEs
Necessary to the discharge of the President's constitutional duties and powers:	0 FTEs
Necessary to protect life and property:	46 FTEs

*Shutdown activities may include calling employees back in the middle of an elongated lapse to address an agency exigency and then re-furloughing them.

Brief summary of significant agency activities that will continue during a lapse:

OPM’s Earned Benefit Trust Funds finance the administration of the Civil Service Retirement System, the Federal Employees Retirement System, the Federal Employees Health Benefits Program and the Federal Employees Group Life Insurance Program. OPM’s Revolving Fund finances training and other functions OPM is authorized or required to perform on a reimbursable basis, including suitability adjudications and personnel management services performed at the request of agencies.

Brief summary of significant agency activities that will cease during a lapse:
The vast majority of the employees working in the other two core components — Workforce Policy and Innovation (WPI) and Merit System Accountability and Compliance (MSAC) — perform functions that are funded from annually appropriated funds and would thus be furloughed.

Purpose

Federal law prohibits an agency from incurring financial obligations unless the agency has received an appropriation to cover those obligations. Accordingly, in the event of a lapse in appropriations, some OPM operations will be suspended, as discussed below.

Summary

The majority of OPM’s functions are funded by sources other than annual appropriations, and thus would continue during a Government shutdown caused by a lapse in appropriations. Indeed, two out of OPM’s five core components perform functions that are funded exclusively through alternative sources: Retirement Services and Human Resources Solutions; and a significant portion of funding for Healthcare and Insurance is also from sources other than annual appropriations.

Human Resources Solutions conducts personnel management and support activities pursuant to our revolving fund statute that are funded by agency fees and other payments. In addition to the employees who work in HRS, several employees in other parts of OPM are also directly funded through the revolving fund, because they spend most of their work time providing essential services to HRS operations. Each of these revolving fund activities currently carries an operating balance that will allow its functions to continue even in the absence of further agency payments during a lapse in appropriations. In the event of an extended shutdown, however, the ability to continue some or all of these functions would have to be reevaluated. It is theoretically possible that funds from some of these revolving fund activities may not last throughout a lengthy shutdown.

OPM also administers a retirement trust fund, a life insurance trust fund, and a health insurance trust fund. There are sufficient amounts in these trust funds to operate them throughout the duration of any lapse in appropriations. The majority of trust fund functions are performed in two OPM offices: Retirement Services, and Healthcare and Insurance. But some functions in other parts of OPM essential to these trust fund activities are also funded from the trust funds.

The majority of the employees working in OPM’s other two core components, Workforce Policy and Innovation (WPI) and Merit System Accountability and Compliance (MSAC), perform functions that are funded from annually appropriated funds and would thus be furloughed.[1] Furloughing these employees would mean that agencies and employees would not have access to OPM’s expert guidance on human resources (HR) matters that arise during a shutdown.

The majority of the employees in the core agency infrastructure offices would also be furloughed. These offices include the Office of the Chief Information Officer (CIO), the Office of the Chief Financial Officer (CFO), OPM Human Resources (OPM HR), the Office of the General Counsel (OGC), Office of Communications (OC), Office of Executive Secretariat and Privacy and Information Management (OESPIM), Facilities, Securities, and Emergency Management (FSEM), and the Equal Employment Opportunity Office (EEO). A number of employees from these offices, however, would be excepted to perform activities that are necessary for excepted and exempted employees to perform their functions, such as facility functions necessary for health and safety, human resource functions, legal counsel, and automated system support. This category includes the minimum number of employees necessary to ensure the effective performance of excepted and exempted functions.

Note the information about OPM’s Office of the Inspector General (OIG) is also included below as a courtesy. OPM has not independently reviewed the OIG’s determinations, and we offer no comment on them.

Responsibilities

1. The Director: is responsible for establishing policy with respect to OPM operations during funding lapses. This includes determining which OPM employees are exempt from furlough; which work is excepted from the furlough and which employees should perform that work; which work is not subject to the furlough by necessary implication and which employees should perform that work; and when employees are to be furloughed from, and recalled to, duty. The General Counsel advises the Director in exercising these responsibilities.
2. Associate Directors and Heads of Offices: are responsible for the overall administration of the contingency plan within their organizations. In doing so, they are to be guided by this plan and by instructions issued by OPM Human Resources.
3. The Chief Human Capital Officer: is responsible for:
   • providing appropriate instructions to Associate Directors, Heads of Offices, and employees; and
   • helping the agency adhere to personnel rules and regulations in the event a furlough is required.
4. The Office of the General Counsel: is responsible for providing legal advice and rendering legal opinions for the OPM Director on matters related to appropriations law, Anti-deficiency Act compliance, ethics and other matters that may arise during any lapse in appropriations.
5. Employees: are responsible for following OPM's instructions and for monitoring the local media for official announcements in the event operations are suspended.

Identifying Employees Expected to Report to Work During Furlough

In the absence of an appropriation or continuing resolution, no financial obligations may be incurred by the Agency, except with respect to certain personnel who are otherwise authorized to continue to work, as described above. To plan for a possible lapse in appropriations, OPM asked Associate Directors/Office Heads to review a list of the positions in their organization and identify those that will be needed to perform a function that meets one or more of the exemption/exception/necessary implication categories. These are employees who would be required to work during a lapse of appropriations.

OPM’s legal counsel reviews the plans and documentation for implementing a furlough to evaluate them for compliance with the Antideficiency Act and other applicable laws. Accordingly, OPM has determined that the following categories of personnel are authorized and expected to continue to work during a lapse in appropriations:

• Category I – Orderly Suspension. Obligations may be incurred for personnel related to the orderly suspension of operations. Activities related to the orderly suspension of operations include: distributing furlough notices; accounting for and following up to ensure that employees are given the proper notification; meeting statutory record-keeping requirements; and meeting OPM’s Government-wide role in assisting with the implementation and execution of lapse plans Government-wide; and supporting the President’s constitutional functions for the duration of any shutdown. In addition, obligations may be incurred for the orderly suspension of work by OPM staff who do not fall within one or more of the exemption/exception categories, but in no case for more than four hours.
• Category II – Excepted Activity. Obligations may be incurred for personnel performing excepted activities as defined in the Office of Management and Budget (OMB) Circular No. A-11 and Department of Justice, Office of Legal Counsel guidance. Specific to OPM, these are personnel whose retention is necessary to provide for national security or the safety of life and property (including the provision of certain health care services, such as reviewing urgent denial of coverage appeals). Personnel to be identified under this category are those having direct responsibility for ensuring that OPM property are secure.
• Category III – Exempted. Personnel operating under multi-year appropriations and personnel who administer activities financed from OPM’s earned benefit trust funds or other indefinite appropriation provisions, such as revolving fund activities, shall continue to work under their normal schedule. NOTE: Were it not for this separate exemption, employees who provide for benefit payments could also qualify under Category II, but as Category II requires the application of an exception, and there is no need for an exception where the employee is already exempt from the requirement, we use the Category III designation, relying upon the funding through OPM’s earned benefit trust fund.
• Category IV – Other Functions Required by Necessary Implication. Obligations may be incurred for certain personnel performing activities that are necessary for excepted and exempted employees to perform their functions (facility functions necessary for health and safety, human resource functions, automated system support, legal counsel, etc.). This category shall include the minimum number of employees necessary to support the health, safety, and security work of excepted employees and to support exempt work to the extent necessary to effective performance of their functions.

Subject to changing circumstances, it is anticipated that employees performing authorized activities in Categories II, III, and IV will be required to continue performing their duties throughout the duration of a temporary Agency shutdown caused by a lapse in appropriations. These employees would not be given a notice of furlough; rather, they would receive a notice that they are to report to work during the furlough.

Employees engaged in activities related to suspension of operations (Category I) might be required to work for varying lengths of time depending on the activity in which they are involved, but would ultimately need to be furloughed, unless the shutdown is of a very short duration (one day, for example). Thus, these employees would initially receive notification that they are to report to work during the furlough. When their services are no longer needed they may be given a subsequent notification placing them on furlough. This could also become necessary for employees performing excepted activities of an episodic nature or for employees performing work required by necessary implication.

Legal Analysis

The Antideficiency Act generally prohibits agencies from incurring obligations in advance of appropriations. See 31 U.S.C. § 1341-1342. There are a few exceptions, however, which are relevant when there is a need to conduct a furlough in connection with a Government shutdown
caused by a lapse in appropriations. These exceptions have been explained in a series of issuances by the Department of Justice. See Memorandum for Alice Rivlin, OMB Director (Aug. 16, 1995); 5 Op. O.L.C. 1 (1981); 4A Op. O.L.C. 16 (1980). Each of the categories identified above falls within one of the applicable exceptions and/or concerns functions that have alternative funding sources and therefore would be exempt (at least in the short-term) from a Government shutdown.

Category I. These are the functions that OPM has determined are necessary to provide for the orderly suspension of operations, as described above. They fall within the “necessary implications” exception to the bar on incurring obligations in advance of appropriations. In his
1980 opinion, Attorney General Civiletti recognized that agencies, by necessary implication, are authorized “to incur those minimal obligations necessary to closing [the] agency.” The 1981 opinion reached this conclusion and the 1995 memorandum, cited above, reiterated it, and it has been the Government’s consistent practice to allow for obligations to be incurred that are necessary for the orderly termination of those functions that may not continue during a lapse in appropriations. Of course, no funds may be disbursed during the lapse in appropriations to cover the obligations incurred. See OMB Circular A-11, § 124.

Category II. These are functions that OPM has determined are necessary for the protection of life and property. The majority of OPM’s employees would be exempted from any furlough caused by a lapse in appropriations, because they are funded through other mechanisms. Employees in this category fall within the exception for preserving life and property, which is recognized in the Department of Justice issuances cited above.

Category III. There are a number of OPM employees who perform functions that are funded by sources other than annual appropriations. These alternatively funded functions would continue during a lapse in appropriations under the “multi-year appropriations and indefinite appropriations” exemption cited in the Justice Department’s 1995 Memorandum.

One component covered by this category is Human Resources Solutions (HRS), which conducts personnel management and support activities pursuant to our revolving fund statute that are funded by agency fees and other payments. In addition to the employees who work in HRS, several employees in other parts of OPM are also directly funded through the revolving fund, because they spend most of their work time to provide essential services to HRS operations.

Each of these revolving fund activities currently carries an operating balance that will allow its functions to continue even in the absence of further agency payments during a lapse in appropriations. In the event of an extended shutdown, however, the ability to continue some or all of these functions would have to be reevaluated. It is theoretically possible that funds from some of these revolving fund activities may not last throughout a lengthy shutdown. In that event, we would re-evaluate whether the functions would fall within a separate exception to the Antideficiency Act’s prohibition on incurring obligations in advance of appropriations.

OPM also administers a retirement trust fund and a health insurance trust fund. There are sufficient amounts in these trust funds to operate them throughout the duration of any lapse in appropriations. As with the revolving fund activities, the majority of trust fund functions are performed in two OPM offices: Retirement Services, and Healthcare and Insurance. But some functions in other parts of OPM essential to these trust fund activities are also funded from the trust funds.

Category IV. Employees in this category are excepted from the Antideficiency Act because they are performing functions that are essential to orderly shutdown activities or the continuation of the excepted functions discussed above, or where the suspension of the related activity would prevent or significantly damage the execution of the terms of another authorized function (e.g., a function performed pursuant to a revolving fund or trust fund). When they meet one of the prongs of this test, these individuals fall within the “necessary implications” exception (because their presence is required as a consequence of the lawful continuation of other functions).

Implementation 

• OPM HR will maintain information related to reporting to work, activities required to prepare for suspension of operations, early release, recall, use of leave, travel and training situations, salary payments, effect on benefits, personnel actions, and other related items.
• If a lapse of funds occurs, all employees must receive either a notice of furlough or of the requirement for them to report to work. Shutdown (or emergency) furloughs resulting from a lapse in appropriations constitute involuntary placements in a temporary status without duties and pay because of a lack of work or funds. For that reason, such furloughs are considered adverse actions under 5 U.S.C. § 7512. Nevertheless, Part 752 contains a special exception to the requirement to provide advance written notice and the opportunity to answer when a furlough is necessitated by unforeseeable circumstances such as “sudden emergencies requiring immediate shutdown of activities.” 5C.F.R.§752.404(d)(2). This would include shutdown furloughs caused by a lapse in appropriations. The notices of shutdown that OPM uses for these occasional lapses in appropriations are “emergency furlough” notices. OPM’s policy is to give all employees written notices of decisions to furlough resulting from lapsed appropriations, whether or not the employees are covered by 5 CFR Part 752.
• Furloughed employees would report for work following a lapse in appropriations only to the extent needed to provide for the orderly suspension of functions, and for no more than four hours.
• Employees will be notified via email to their official OPM email address, with delivery confirmation. Employees who for any reason cannot be emailed a notice letter will be sent the appropriate letter by certified mail, with return receipt requested to document delivery of the notice.
• Employees will continue to report to work unless advised otherwise by OPM HR, the supervisor, or an official announcement made through OPM.gov.
• Increased use of technology has improved government operations, allowing us to notify employees of furloughs and resumption of operations more quickly and at lower cost. As in the case of announcements related to weather-related delays or Government closures, OPM.gov will be kept up to date with respect to the Government’s operating status. Employees who receive a notice of furlough will thus be instructed to monitor OPM.gov and media outlets, and when they hear that a continuing resolution or appropriation has been signed by the President, they will be expected to return to work on their next scheduled duty day. Most of the furloughed employees do not carry Government-issued smart phones, so that is not a viable option for communicating the end of a Government shutdown. We also do not believe it is necessary to attempt to reach employees telephonically. There would be a significant cost associated with telephonic notification, and based on our experience, we expect that notification through our website and the media would be sufficient. Employees will also be made aware prior to furlough that they can check their OPM email account daily to see if any communication was sent regarding updates during a lapse. These emails will be titled accordingly.
• Employees who receive a notice that they are to report to duty during the furlough will remain on duty and continue to report for duty, unless they subsequently receive a written notice of furlough.

Action Plan

• When a lapse in appropriations occurs, employees will be sent a notice of the potential for furlough, and will be instructed to check their OPM email and OPM’s website and to monitor the news media prior to reporting for duty on their next scheduled work day. Employees who for any reason cannot be emailed a notice letter will be sent the appropriate letter via certified mail, with return receipt requested.
• OPM HR will transmit to the Director the final list of exempt/excepted positions and request authorization to implement necessary furlough activities. This list will closely track the list developed in connection with this plan, including only those modifications that are necessary to account for changing employee circumstances.

[1] WPI is the component of OPM with primary responsibility for developing and implementing Government-wide HR policies and, through guidance and regulation, supporting the enforcement of civil service law, generally. MSAC’s primary responsibility is to review agencies’ adherence to Federal HR laws and policies and direct corrective action where necessary.