Snow Days and Why Too Many Employees Likely Worked During the Shutdown

by Sam Wice — Saturday, Feb. 2, 2019@Wice_sam

With the 35-day partial shutdown finally ending, federal employees are getting back to work. However, many employees in the Washington, DC area have missed some work this past week due to a snowstorm. As such, I thought now would be a good time to examine some of the government’s actions during the shutdown compared to its actions during weather and safety closures. Specifically, the government likely took too liberal of a view of who can work during the shutdown.

The Antideficiency Act specifies that only a limited number of federal employees may work during a lapse in appropriations:

An officer or employee of the United States Government . . . may not accept voluntary services for [the] government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. . . . As used in this section, the term “emergencies involving the safety of human life or the protection of property” does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.

The conference committee that wrote the definition of “emergencies involving the safety of human life or the protection of property” stated that the purpose behind amending the Antideficiency Act to add the definition was:

to make clear that . . . ongoing, regular operations of the government cannot be sustained in the absence of appropriations, except in limited circumstances. These changes guard against what the conferees believe might be an overly broad interpretation of an opinion of the Attorney General issued on January 16, 1981 . . . .

The referenced Department of Justice opinion stated that the Antideficiency Act allows employees to work during a shutdown if two conditions are met:

First, there must be some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property. Second, there must be some reasonable likelihood that the safety of human life or the protection of property would be compromised, in some degree, by delay in the performance of the function in question.

After Congress added the definition, the Department of Justice stated that “the second criteria’s use of the phrase ‘in some degree’ should be replaced with the phrase, ‘in some significant degree.’”

The Department of Justice has consistently kept this view of the Antideficiency Act during subsequent shutdowns. While I generally agree with the interpretation, in practice, the government has likely applied the exception too broadly. Specifically, the government deemed that roughly half of all workers at shut down agencies must work.

Similar application of limited, emergency staffing during weather and safety closures demonstrates a likely inconsistency. Federal regulations specify that an agency may deny weather and safety leave to “emergency employees who are critical to agency operations . . . .” The Office of Personnel Management (OPM) intentionally wrote the regulation to be broad and give individual agencies discretion to determine their own needs.

Although the two standards of emergency are different, they are comparable. Critical to agency operations likely is broader than issues involving the safety of human life or the protection of property. If an employee’s function is such an emergency that the employee must work full time during a shutdown to prevent imminent threat, how is it not also critical to an agency for the employee to work each scheduled day? As such, an agency’s shutdown procedures should at least be more restrictive than its weather and safety closure procedures.

In fact, during the shutdown OPM closed Washington, DC area offices for a snowstorm. It advised that “[e]xcepted employees (e.g., those excepted from the furlough to protect life or property or those who must support them or other non-furloughed employees ‘by necessary implication’) will follow the operating status announcement. . . .” I do not understand how an employee is required to work on a particular day to prevent an “imminent threat,” yet the employee is both (i) non-critical to an agency’s operations and (ii) the risk of loss of human life or protection of property is not so imminent that the government can allow the employee not to work that day. As such, the government likely required too many employees to work during the shutdown and/or required those employees to work too many hours during the shutdown.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

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