What does OMB Circular A-11 say about excepted and non-excepted employees during a shutdown?
Executive summary
OMB Circular A-11 directs agencies to identify which activities and personnel may continue during a lapse in appropriations — so-called “excepted” functions and employees — and to furlough workers performing non-excepted functions, while also preserving “exempt” work funded from un-lapsed appropriations; agency heads make these designations in consultation with counsel and with OMB and DOJ guidance available for legal interpretation [1] [2] [3].
1. What the Circular actually requires: contingency plans, decisions, and OMB oversight
Section 124 of A-11 requires each agency to prepare and maintain a shutdown contingency plan that identifies which functions are excepted and which employees will be furloughed, and it gives agency heads authority — working with their general counsels — to decide what activities are legally authorized to continue during a lapse, with OMB available to answer questions and coordinate with DOJ’s Office of Legal Counsel when needed [1] [3] [2].
2. Who is “excepted” vs. who is “non‑excepted”: legal and practical distinctions
An “excepted” employee is one performing work that is legally authorized during a shutdown — for example, work necessary to protect life and property or otherwise authorized under the Antideficiency Act — and these employees continue to perform duties during the lapse; by contrast, non-excepted employees may not perform work and must be placed in furlough status, subject to narrow rules about leave and allowable preparatory actions [4] [5] [6].
3. The role of “exempt” functions funded by other appropriations
A-11 also clarifies that functions financed by appropriations that have not lapsed remain “exempt” from shutdown procedures and may continue even while other appropriations have lapsed, meaning some agency work can proceed without interruption if it is supported by separate, available funding sources [1].
4. Operational rules: minimal staffing, consolidation, and orderly shutdown tasks
The Circular and associated agency guidance expect managers to minimize excepted staffing, consolidate intermittent excepted activities to the fewest employees possible, and permit a limited set of orderly-shutdown tasks (e.g., distributing furlough notices, securing facilities, minimal payroll processing) that may be performed by a small number of personnel to effectuate the shutdown without creating unauthorized obligations [3] [7] [8].
5. Pay, leave, and other constraints on excepted and non-excepted employees
Excepted employees perform work during a lapse and generally earn pay or earn leave/comp time as governed by agency procedures, whereas non-excepted employees must be furloughed and generally may not substitute paid leave for furlough periods; agencies are directed to place employees in the appropriate status and to follow department-specific rules about leave and minimal processing of payroll where necessary [9] [8] [6].
6. Agency variability and legal risk: why decisions are centralized but not uniform
A-11 centralizes the process — OMB notifies agencies when to implement shutdown plans and provides templates and further guidance — yet final determinations rest with agency leadership in consultation with counsel, producing variation across departments (e.g., VA’s contingency plan projecting many excepted staff versus other agencies’ widespread furloughs); OMB and DOJ opinions shape the legal boundaries, but the Circular leaves room for interpretation and operational differences [2] [10] [4].
7. Limits of available reporting and the caveats agencies must follow
Reporting and agency contingency plans make clear that while A-11 sets the procedural framework, it relies on the Antideficiency Act and DOJ opinions for legal limits and on OMB communications for implementation timing; public documents show common principles but do not provide a single, detailed roster of who will be excepted in any future lapse, so definitive employee lists depend on agency-specific plans and real-time OMB direction [5] [3] [2].