The Office of Personnel Management (OPM) recently updated its guidance for shutdown furloughs, making a significant change regarding how federal employees are supposed to be paid after a government shutdown.
Specifically, the previous version of the document explicitly guaranteed back pay to furloughed federal employees after a shutdown, whereas the new version says that it will be up to Congress to authorize retroactive pay for these employees. The change was first reported by Federal News Network.
The Government Employee Fair Treatment Act of 2019
The change centers around the interpretation of the Government Employee Fair Treatment Act (S. 24), a law signed in 2019 that discusses paying federal employees after a partial government shutdown.
Part of the text from the law states:
Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.
Up until recently, the assumption was that this law granted back pay to all federal employees after a shutdown, both those who were furloughed and those who were excepted and had to work during the shutdown.
How OPM’s Guidance Changed
In the September 28, 2025 version of OPM’s guidance for shutdown furloughs, question #3 under the pay guidance section said that federal employees furloughed during a government shutdown would be paid retroactively. It read as follows:
Will employees who are furloughed get paid?
A. Yes. After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods. (See 31 U.S.C. 1341(c)(2).) Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates. (See 31 U.S.C. 1341(c)(2).) If retroactive pay cannot be provided by the normal pay date for the given pay period, it will be provided as soon as possible thereafter. Retroactive pay is provided at the employee’s “standard rate of pay.” (See Question D.4. Note that retroactive pay may be zero if an employee was scheduled (before the lapse took effect) to be in a nonpay status during the period when the lapse was in effect.)
However, the same question in the January 30, 2026 version of OPM’s shutdown furlough guidance now reads as follows:
Will employees who are furloughed get paid?
A. Congress will determine via legislation whether furloughed employees receive pay for furlough periods. After any Congressional action, supplemental guidance may be issued to assist agencies in determining pay and service credit for such furlough periods.
This is a significant change, and it is now OPM’s interpretation of the 2019 law that Congress must determine via legislation whether furloughed federal employees get paid after each shutdown ends. This change is more in line with how the process worked before passage of the Government Employee Fair Treatment Act.
Other Notable Changes
OPM’s revised guidance also removed the reduction in force (RIF) section from the September 2025 version and replaced it with a section called “performance and conduct” which covers topics such as initiating performance-based and adverse actions against employees or handling absent without leave (AWOL) situations during shutdowns. RIFs are not mentioned in this new section.
The September 2025 version also contained a question about computing the standard rate of pay for excepted employees; this question was removed entirely in the January 2026 version.
The Evolution of the New Pay Interpretation
How did OPM arrive at this new interpretation of the law? Looking at past guidance offers some clues.
OPM issued guidance on pay and benefits on January 11, 2019 after the 2018-2019 government shutdown ended. It read:
Furloughed employees: After the lapse ends, you are entitled to receive your “standard rate of pay” for the furlough period, which includes any—
- basic pay;
- overtime and other premium pay for regularly scheduled work;
- regular premium payments (e.g., law enforcement availability pay); and
- allowances and differentials payable on a regular basis.
Excepted employees: After the lapse ends, you will receive your “standard rate of pay” for the actual hours that you worked (e.g., including any overtime or other premium pay, allowances, and differentials earned based on actual hours worked). Any time that an excepted employee is placed in a furlough status will be compensated under the rules for furloughed employees. (See above.)
Both furloughed and excepted employees will be paid after the lapse in appropriations ends.
OPM issued guidance on November 12, 2025 after the shutdown ended, which stated:
Section 116 of Division A (the Continuing Appropriations Act of 2026) provides retroactive pay pursuant to 31 U.S.C. 1341(c) to Federal employees affected by the lapse in appropriations that began on October 1, 2025. This includes Federal employees who were furloughed, as well as Federal employees who were required to perform excepted work activities during the lapse.
And on February 3, 2026, OPM published a memo on pay and benefits after the brief partial government shutdown that just ended. It states:
Section 103 of division H of the legislation provides retroactive pay pursuant to 31 U.S.C. 1341(c) to Federal employees affected by the partial lapse in appropriations that began on January 31, 2026. This includes Federal employees who were furloughed, as well as Federal employees who were required to perform excepted work activities during the partial lapse.
Note that the two recent documents specifically state that back pay for federal employees is provided in the continuing appropriations legislation, whereas the 2019 document only states that federal employees are entitled to be paid.
A New Legal Interpretation from the White House
The White House is reportedly the driving force behind this new interpretation of the law.
Axios reported last October that the White House argues that the Government Employee Fair Treatment Act does not automatically compensate furloughed workers after shutdowns. The White House’s interpretation, based on an amendment to the law, requires Congress to specifically appropriate funds for back pay.
Axios noted, “The White House’s stance revolves around the law’s amended version, which added a phrase saying furloughed workers shall be compensated ‘subject to the enactment of appropriations Acts ending the lapse.’ That’s a technical phrase for shutdown. To the White House, that means money for those workers needs to be specifically appropriated by Congress.”
Upon hearing about the Axios report, a group of lawmakers sent a letter to the White House Office of Management and Budget (OMB) stating their objections to this new interpretation and demanding that guidance be clarified to reflect that all federal employees are entitled to back pay under the law. They wrote:
The law is clear: all impacted government employees, regardless of excepted or furloughed status, are entitled to back pay after a government shutdown ends, which is consistent with the guidance currently provided by federal agencies, including the Office of Personnel Management (OPM). OPM’s shutdown guidance from September 2025 still states that furloughed federal workers will be provided back pay once the government reopens.
…we request you immediately clarify and update the Frequently Asked Questions During a Lapse in Appropriations Document and other relevant materials to affirm that furloughed employees will receive back pay, as is required by law.
However, the opposite appears to have happened. In addition to OPM’s revised January guidance, OMB updated a frequently asked questions memo on January 30, 2026 that only mentions paying excepted federal employees after a shutdown under the Government Employee Fair Treatment Act. It reads:
VI. Entitlement to Payment for Excepted Work
Q27: How will excepted employees be paid for excepted work required during the lapse in appropriations?
A27: All excepted employees will receive payment for their performance of excepted work during the period of the appropriations lapse when appropriations for such payments are enacted. Consistent with the Government Employee Fair Treatment Act of 2019 (Public Law 116-1), furloughed employees will receive payment for the period of the appropriations lapse when specific appropriations for such payments are enacted.
The ultimate outcome of this dispute over paying furloughed federal employees is one that may have to be settled by the courts after a future government shutdown, assuming that Congress fails to explicitly authorize back pay for all federal employees in the funding legislation it passes. In the last two shutdowns, Congress specifically authorized retroactive pay, probably in response to this new interpretation of the 2019 law.
