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What criteria determine whether a position is excepted versus non-excepted during a shutdown?
Executive Summary
A position is designated excepted during a federal shutdown when the work it performs is legally permitted to continue despite a lapse in annual appropriations—most commonly tasks that involve the safety of human life or the protection of property, or other specifically authorized activities—while non-excepted positions are placed on furlough and barred from working except to carry out an orderly suspension (Antideficiency Act framework, OMB/DOJ/OPM guidance) [1] [2]. Agencies apply OMB and DOJ criteria and exercise discretion, with legal counsel and senior managers deciding which duties meet the statutory and guidance-based tests; employees who work as excepted typically perform without pay during the lapse but are often entitled to retroactive pay after appropriations resume under the Government Employee Fair Treatment Act [2].
1. How the Law Draws the Line — Emergencies, Property Protection, and Statutory Exceptions
The central legal threshold for being excepted is whether the activity is legally authorized to continue during a lapse in appropriations, most concretely emergency work that involves the safety of human life or the protection of property. The Antideficiency Act forbids obligating funds absent appropriations but allows agencies to continue those narrowly defined functions; OMB and DOJ guidance elaborates which categories qualify and stresses that agencies must avoid performing activities that are not expressly permitted [2] [3]. This legal framework creates predictable categories—military operations, air traffic control, law enforcement, and emergency medical services are routinely listed as excepted—because statute or longstanding practice recognizes these functions as critical to public safety and therefore authorized to continue [4] [5]. Agencies must document and justify excepted designations, and legal counsel typically vets the determinations to limit Antideficiency Act exposure [1].
2. Agency Discretion and the Role of Agency Counsel — Not a One-Size-Fits-All Rule
OMB and DOJ guidance gives agencies a structured test but also substantial discretion to map that test onto their missions; senior managers working with legal counsel make the final decisions about who is excepted versus furloughed. That discretion means exceptions vary across agencies and across shutdowns depending on the functional posture, available funding, and legal authorities—an agency with unobligated or alternative funds can avoid furloughs, while another performing similar services may furlough staff if appropriations have lapsed [1] [6]. The guidance emphasizes careful role-level analysis rather than blanket categorizations, so positions that sound critical on paper may be non-excepted if the specific duties do not meet the statutory or guidance criteria; agencies also reserve the right to revise excepted lists as conditions change during a lapse [3] [7].
3. Practical Examples and What Employees Should Expect — Who Works, Who Furls, and Who Still Gets Paid
In practice, employees working in public safety, national security, and certain continuity-of-government functions are almost always excepted and required to work during a lapse, typically without immediate pay, while many administrative, research, or program-support roles are non-excepted and placed on furlough [4] [5]. The Government Employee Fair Treatment Act of 2019 requires retroactive pay for furloughed employees after a lapse ends, and OMB guidance confirms excepted employees who worked during the lapse are generally eligible for retroactive pay at their standard rates—though timing and administrative treatment can vary by agency [3] [2]. Mandatory programs funded outside annual appropriations, like Social Security benefits, continue to operate, creating a funding-based distinction that runs parallel to the functional safety test [7].
4. Conflicting Stakes, Transparency Concerns, and Oversight Risks — What the Guidance Leaves Out
The interplay of legal conservatism under the Antideficiency Act, agency discretion, and political pressures creates tension and variability: agencies may err on the side of caution and furlough borderline staff, or conversely keep staff working under creative authority interpretations, prompting oversight questions and litigation risk [2] [6]. Guidance documents require documentation and legal review, but they do not eliminate disputes about whether specific duties are truly excepted; news coverage and watchdog scrutiny routinely highlight cases where agency lists appear inconsistent or where political appointees’ status raises questions about potential favoritism [6] [4]. For employees, managers, and Congress, the key practical variables remain statutory authority, the presence of alternative funding, OMB/DOJ legal interpretations, and the agency’s risk tolerance—factors that explain why similar federal roles may receive different treatment in different shutdowns [1] [6].