What is the OPM definition of an excepted position during a shutdown?
Executive summary
An “shutdown-employee-classification">excepted” position, as OPM frames it in shutdown guidance, is a job funded by annual appropriations whose duties are nonetheless allowed to continue during a lapse because the work is legally permissible under the Antideficiency Act (for example, functions that protect life or property), and employees in those positions are required to work but are generally not paid until appropriations resume [1] [2] [3]. Agencies must identify which specific positions are excepted using OPM and OMB guidance and legal advice, and those determinations can change during the course of a shutdown [4] [3].
1. What OPM means by “excepted”: operational continuation despite a lapse
OPM uses “excepted” to describe employees who perform functions that may legally continue during a lapse in annual appropriations — in short, work that the law permits to proceed even when most appropriated-funded activities stop — such as activities involving the safety of human life or the protection of property [3] [2]. Guidance frames the excepted designation not as a funding exception for the employee’s pay stream but as an authorization to continue specified duties during a shutdown; agencies must apply legal and OMB guidance to decide which duties and employees are properly excepted [4] [1].
2. Who decides and how the designation is applied
Agencies, guided by OPM, OMB, and agency counsel, determine which positions are excepted by evaluating legal authorities and the nature of the tasks; OPM’s guidance repeatedly instructs agencies to make tailored determinations, and those lists of excepted positions are expected to track operational needs and may be revised as circumstances change [4] [5] [3]. OPM and DoD continuity documents emphasize that determinations cover all positions — including SES and overseas staff — and employees needed only to support excepted activities generally should only perform excepted work [6] [5].
3. What excepted employees must (and must not) do during a shutdown
Excepted employees are generally required to perform only the excepted work identified by the agency and may not perform non-excepted tasks; once their excepted duties are complete, agencies should place them into furlough using shutdown procedures for any remaining time [6] [5]. Agencies are also instructed that furloughed employees may not perform work except for minimal orderly-shutdown activities (such as distributing furlough notices), and that failing to adhere to “do not work” rules can have legal consequences [7] [5].
4. Pay, leave, and retroactivity: the practical consequence
OPM guidance and related agency explanations make clear that excepted employees continue to accrue pay and leave for the periods they perform excepted activities even though agencies cannot disburse pay during the lapse; retroactive pay requires later appropriations or statute [8] [4]. OPM guidance also notes nuances — for example, excepted employees working on a holiday are treated under normal holiday-pay rules and agencies must reconcile leave and paid time off policies during a shutdown [9] [4].
5. Legal and political flashpoints: why “excepted” matters beyond operations
The excepted designation sits at the intersection of law, agency judgment, and politics: agencies cite the Antideficiency Act to justify stopping most work but rely on statutory exceptions and OMB/DOJ interpretations to permit certain activities to continue, which can become controversial when large numbers of employees are labeled excepted or when agencies expand definitions to maintain operations [5] [2] [10]. OPM’s evolving guidance and media scrutiny — including reporting on areas like RIF work being treated as excepted — show that the designation can be used defensibly for continuity or perceived as a managerial lever with political implications [10] [2].
6. Limits of reporting and remaining ambiguities
The available OPM and agency documents establish the framework and examples but do not provide a single, exhaustive checklist for every agency or position; instead, OPM requires agency-specific determinations and legal vetting, meaning exact excepted-status outcomes depend on agency analyses and can change during a lapse [4] [5]. Reporting captures the legal standards and common examples (air traffic control, TSA, life‑safety functions) but cannot, from these general sources alone, state how any particular position will be classified without agency-specific lists [2] [6].