Monthly Archives: January 2019

The Shutdown Exceeding 30 days

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Monday, January 21, 2019, marks the day that the shutdown has dragged on past the 30-day mark. This means agencies must send a 2nd furlough notice to non-excepted employees.

“After the first 30 days in a furlough status, agencies are required to deliver a 2ndfurlough notice to currently furloughed employees,” the Office of Personnel Management said. “When a shutdown goes beyond 30 days, agencies should treat it as a 2nd furlough and issue another adverse action and furlough notice.”

The original notices furloughed employees received on the first day of the shutdown expire January 21st. Most of the 300,000 furloughed employees received a message at the start of the shutdown saying, this furlough is not expected to exceed 30 days. Therefore, it expires on January 21.”

The new notices are to be delivered to affected employees either by email or U.S. mail, according to OPM. These 2nd notices will expire on February 19.

RIF’s

Agencies won’t conduct targeted layoffs, or Reductions in Force if the shutdown hits the 30-day mark. Federal statute instructs agencies to RIF groups of employees who have been placed on furlough status longer than 30 days. However, this does not apply during a government shutdown.

According to OPM, there are 2 kinds of furloughs— “administrative” and “shutdown, or emergency” furloughs.

Administrative

These are planned events by an agency “designed to absorb reductions necessitated by downsizing, reduced funding, lack of work or any budget situation other than a lapse in appropriations,” OPM guidance says.

Shutdown or Emergency

These occur during lapses in appropriations and are out of the agency’s control.

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The Shutdown and Federal Disability Retirement

retirement

The partial government shutdown has lasted almost 30 days now and let’s be honest, it is a difficult time to be a federal employee. Whether you’re being forced to work without pay, or on furlough with no pay, it’s a tough time. Seemingly every day there is a new story regarding federal employees—unions suing the government or federal employees being ordered to work without pay. It may have you thinking if there’s anything else.

NTEU Sues Over the Shutdown

The National Treasury Employees Union filed a lawsuit against the government alleging the federal statute allowing some federal employees to be required to work without pay during the shutdown is unconstitutional.

“If employees are working, they must be paid—and if there is no money to pay them, then they should not be working,” NTEU National President Tony Reardon said.

One example the lawsuit points to is employees at the Internal Revenue Service. NTEU says these employees’ jobs involve “the regular functions of government unrelated to protecting human life.” IRS is recalling thousands of workers to work in the preparation for the upcoming tax filing season.

“While a case can certainly be made that some federal employees, such as Customs and Border Patrol Officers and others, are protecting human life and property, that line of reasoning gets quite shaky when applied to thousands of IRS employees being called back in order to process tax refunds—and to do so without being paid,” Reardon said. “That is not how the law works, and that is not how this country should work.”

Federal Employees Ordered to Work Without Pay

Here are a few of the most popular stories about this:

Politico (1/15, Mintz, Gurciullo, 4.04M) reports that, according to Professional Aviation Safety Specialists Vice President Michael Gonzales, approximately 1,500 inspectors had returned to work as of today. Gonzales said, “The FAA Flight Standards Service has developed an aggressive plan to bring key components of our safety inspector work online, with an initial recall of all principle safety inspectors through next week.”

Bloomberg News (1/15, Dlouhy, 5.74M) reports that the Administration has “ordered thousands of furloughed federal employees back to work without pay to inspect planes, issue tax refunds, monitor food safety and facilitate the sale of offshore oil drilling rights.” The efforts, Bloomberg News says, show how President Trump is “trying to limit the impact of the partial government shutdown and shield favored industries” as the impacts of the shutdown spread across the country. Critics, however, say the Administration is “skirting federal law by continuing some functions” amid the shutdown.

The Washington Post (1/15, Marimow, 13.51M) reports US District Judge Richard J. Leon on Tuesday “refused to force the government to pay federal employees who have been working without compensation during the partial government shutdown, rejecting arguments from labor unions that unpaid work violates labor laws and the Constitution.” The judge “ruled against a consolidated claim that the National Treasury Employees Union and the National Air Traffic Controllers Association filed against the government, alleging that employees should not be forced to work without pay.” The Washington Free Beacon (1/15, McMorris, 58K) reports Judge Leon “said the motion could throw the political process into ‘disarray’ even as he acknowledged that workers ‘are not the ones at fault.’”

Federal Disability Retirement

None of us really knows when this shutdown will end. It could be a few days, or it could be a few months from now. Many of you may be working through an injury or illness, and have been for some time now, that prevents you from performing your essential job duties. If this describes you, the time could be right for you to start the process of applying for this benefit. If you would like to learn more about this and how Harris Federal Law Firm may be able to help you, please don’t hesitate to reach out to us. Call us at 877-226-2723 or fill out this INQUIRY form to schedule your FREE consultation.

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The Shutdown is Affecting the Private Sector

private

It’s not just federal agencies and employees who are feeling the impact of the partial government shutdown. Small business owners are as well. That’s because agencies like the Small Business Administration and Internal Revenue Service are not providing information or services.

Here is a look at what is and isn’t available for businesses:

SBA Loans and Certifications

SBA loan applications aren’t being processed, so that means those seeking business loans must wait until after the shutdown ends to find out if they’ve been approved. Owners can, however, still apply for loans.

SBA certifications aren’t being processed either. Companies hoping to get certified can’t even apply and they also can’t find out the status of a previously submitted application. Small businesses use these certifications in bidding for government and private contracts.

Government Contracting

Those companies that are already working for the government won’t be paid for their work until the government reopens. Companies that have bid on contracts and want to know the outcome could have to wait depending on whether the agency and contracting officer is working.

In certain situations, contractors are not authorized to do government-related work during the shutdown.

Certifying Employees

Employers are not able to verify that their new hires are eligible to work in the United States. The verification website, www.e-verify.gov is available for information purposes, but not for verification purposes.

IRS

Taxpayers and business owners alike are unable to reach IRS employees for information or with their questions. Phone calls to the IRS are being answered by a recording stating the service is unavailable, even the phone line for tax professionals is unavailable.

The IRS website, www.irs.gov is operating so taxpayers can make tax payments and view their account information.

Disaster Relief

Business and homeowners can apply for disaster relief and assistance through the SBA website, www.sba.gov, and www.disasterassistance.gov.

Reminder: TSP Withdrawal Changes Coming

withdrawal

The Federal Retirement Thrift Investment Board is planning a “significant launch promotion” beginning this month to implement the Thrift Savings Plan changes stemming from the TSP Modernization Act. Congress imposed a deadline for these changes of November 1st, but the Board plans to implement them on October 1st.

Below is a summary of changes participants can expect.

Post-Separation Withdrawals

TSP participants will be able to make more than 2 post-separation withdrawals. Until the implementation date, separated participants can only make one partial withdrawal and one final withdrawal. Further, if the participant took an age-based withdrawal while employed, they can only take the final withdrawal.

When the changes are implemented, there won’t be a limit on the number of post-separation partial withdrawal if they aren’t taken more than once every 30 days. Taking an age-based withdrawal while employed won’t hurt separated participants from taking post-separation partial withdrawals.

Age-Based Withdrawals

Participants still employed will be able to take up to 4 age-based in-service withdrawals as long as they meet the age requirement (59 ½).

Installment Payments

Currently, the only way to take installment payments from TSP is on a monthly basis. The payments can be changed only once a year and can never be stopped. After implementation, quarterly and annual installment payments will be allowed. The amount of the payments can be changed and more often and they can be stopped or started.

Installment payments will no longer hinder a separated participant from taking a partial withdrawal. Those participants will also no longer be required to make a “full withdrawal election” by the age of 70 ½. However, they still must begin taking required minimum distributions from TSP by April 1st of the year after the year in which they reach 70 ½. This could be done by taking a partial distribution or by setting up installment payments.

These changes are beneficial to TSP participants. It’s important to know about them in order to take full advantage of them.

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USDA to Continue SNAP Benefits

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The Department of Agriculture has come up with a plan and budget to ensure Supplemental Nutrition Assistance Program benefits continue to pay out through February.

“President Donald Trump directed the Office of Management and Budget and USDA to determine a way to fully fund all the SNAP through the month of February, and we will do just that,” Secretary Sonny Perdue said.

Brandon Lipps, acting Deputy Undersecretary for Food, Nutrition, and Consumer Services (FNCS) said the agency can keep providing benefits because of a provision in the last continuing resolution, allowing USDA program operations like SNAP and child nutrition programs to incur new obligations within 30 days of the continuing resolution’s expiration.

USDA has until January 20th to pay out February SNAP benefits.

“The funds that we’re advising you today that we will be using are appropriated from the continuing resolution that expired on December 21, and so will not need to be appropriated in a future bill,” Lipps said.

Section 110 of the resolution states “funds shall be available for entitlements and other mandatory payments under the 2008 Food and Nutrition Act until 30 days after the resolution expires.

USDA has also provided early SNAP benefits to states impacted by natural disasters and follows the same template to pay out benefits during the shutdown.

“If you look at the past hurricane seasons when states are aware that a hurricane is headed toward their state, they work with us to request the ability to issue their benefits early as a lot of people evacuate their state. They will want to take those benefits with them and use them wherever they go,” Lipps said. He went on to say that he knows “this is a time of great uncertainty and no doubt some anxiety for the people who rely on SNAP in dealing with tough times. I hope that it’s reassuring for us to make clear today that we’re committed to maintaining service to SNAP clients without interruption to the extent possible under the law.”

USDA has encouraged states to request early issuance of February SNAP benefits before the January 20th deadline.

New households can still sign up for SNAP benefits as well.

The department has also identified prior year-end funds that will allow Women, Infants, and Children (WIC) programs to operate through February.

USDA functions such as food safety inspections and national forest law enforcement remain in effect during the shutdown.

Perdue said the stopgap solution serves USDA’s motto of “Do right and feed everyone”.

“At the president’s direction, we’ve been working with OMB on this solution. It works and is legally sound, and we want to assure sates and SNAP recipients that the benefits for February will be provided,” Perdue said.

If the shutdown continues into February, its possible SNAP and WIC benefits could be disrupted for March.

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Concerns Growing Regarding Pay and Leave

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We are nearing one month of this partial government shutdown and many federal employees are wondering about leave, pay, or what happens if they can’t pay their bills, i.e. mortgage. Here are a few reminders, and new bills, to help clarify.

Leave

When there is a lapse in appropriations, all paid leave or other paid time off is canceled. So, what happens to your “use-or-lose” annual leave annual leave that couldn’t be used because of the shutdown?

The Office of Personnel Management has issued guidance on this, stating “that annual leave in excess of an employees’ annual leave ceiling ‘shall be restored’ (i.e. no agency discretion) if it is lost (forfeited) because of…exigencies of the public business’ when the leave was ‘scheduled in advance.’” This means an employee would have had to have scheduled the leave “before the start of the 3rd bi-weekly pay period prior to the end of the leave year.”

Basically, if an employee had leave scheduled in advance, their agency is required to restore the annual leave that was forfeited because of a lapse in appropriations. The leave must have been scheduled in writing no later than November 24, 2018.

Pay

The Senate passed legislation that would guarantee all federal employees will be fully compensated once the ongoing partial government shutdown ends.

The Government Employee Fair Treatment Act (S. 24) was introduced by Senator Ben Cardin (D-MD). It passed by voice vote in the Senate. The bill guarantees furloughed federal employees will be paid retroactively and stipulates all employees be paid as soon as possible after the shutdown ends.

Foreclosures/Repossessions

The Federal Employee Civil Relief Act (S. 72) was introduced by Senator Brian Schatz (D-HI). It is designed to protect federal employees from creditors/landlords during the shutdown in the event they are unable to pay their bills. It is modeled after the Servicemembers Relief Act and would prohibit landlords/creditors from acting against federal workers or contractors who are unable to pay rent or repay loans due to the shutdown. The bill would also give federal employees more power to sue those who violate the protection.

The legislation is specifically designed to shield federal employees from the following:

  • Eviction or foreclosure
  • Car/property repossession
  • Falling behind on student loan payments
  • Bills
  • Losing insurance because of missed premiums

The protections would last during and for 30 days following a shutdown.

“Right now, thousands of federal employees and their families are struggling to pay rent and make ends meet. It’s obviously unacceptable. Our bill will protect federal employees and make sure they aren’t harmed because of a political stunt,” Schatz said.

Currently, the bill has 11 co-sponsors.

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At Risk: Food Safety

food

Hundreds of Food and Drug Administration inspectors are furloughed which means food inspections have been greatly reduced. The FDA oversees 80% of the food supply but has suspended all routine inspections of domestic food processing facilities.

FDA Commissioner Scott Gottlieb is working on a plan to bring inspectors back as early as next week to inspect high-risk facilities. These facilities handle sensitive items such as seafood, soft cheese, vegetables, or have a history of problems. “We’re doing what we can to mitigate any risk to consumers through the shutdown,” he said.

A non-profit advocacy group, the Center for Science in the Public Interest said the lack of inspections is unacceptable. “That puts our food supply at risk,” Sarah Sorscher, deputy director of regulatory affairs at the group said. “Regular inspections, which help stop foodborne illness before people get sick, are vital.”

Foodborne illnesses sicken 48 million people each year in the United States and kill 3,000, the Center for Disease Control and Prevention said.

The FDA typically conducts about 160 routine food inspections per week, with about 1/3 involving high-risk processing facilities, Gottlieb said.

The inspectors look or problems such as unsanitary conditions, insect infestations, and salmonella/E. Coli contamination.

The agency is continuing to inspect foreign manufacturers, imports and domestic producers involved in recalls or outbreaks, and places where inspectors suspect there may be a problem.

Close to 60% of the FDA’s activities are funded by user fees, which have allowed the agency to continue many operations for now. However, most of its food-related work is paid for by appropriations, which have not yet been approved by Congress.

The United States Department of Agriculture inspects meat, poultry, and eggs and those inspections have continued.

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News Regarding Pay for Feds

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Federal employees facing missing check Friday. Major media reported on the situation for federal employees who are facing a coming payday in which they may not be paid. NBC Nightly News (1/9, story 5, 1:30, Holt, 8.42M) reported, “For millions of Americans, the shutdown is far more than a political fight in Washington.” NBC (Costello) added, “Among those working without pay: the very Secret Service agents protecting the President, US Customs and Border Patrol, marshals, ATF, DEA, most NASA employees, 14,000 air traffic controllers, 51,000 TSA officers. All should receive back pay once the government reopens, though that could be awhile.” NBC also reported “hundreds of thousands of FDA food inspectors” are on furlough, while “a support network is recommending garage sales for furloughed members of the Coast Guard.” NBC added that according to the TSA union, “some officers are starting to quit as they’re unlikely to be paid on Friday.”

The CBS Evening News (1/9, story 2, 2:05, Glor, 6.18M) reported, “So many workers could be forced to live off savings and what’s left from their last paycheck.” CBS (Werner) featured a federal corrections officer who is “making a stream of non-stop phone calls to try to hold the banks at bay. He hasn’t gotten a paycheck since December 29, and he doesn’t expect to get one any day soon.”

The New York Times (1/9, Tavernise, 17.59M) reports that as paychecks for federal employees “begin to stop, the negative effects threaten” the Washington area. The Times adds that Washington “boasts one of the country’s richest, strongest economies, powered by government spending and a large, stable federal workforce.” The Times cites George Mason University economist Stephen Fuller saying that if it is over “before February, the economic effect on the overall region would be minimal.” The Times adds, “for many federal workers, Friday would be the first day without a paycheck.” It also reports, “Many federal workers said they had savings and could manage, at least for now.”

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Stress and FDR

stress

Stress is defined by Oxford Living Dictionaries as “a state of mental or emotional strain or tension resulting from adverse or demanding circumstances.” It’s found in every part of life, good or bad—marriage, divorce, working with others, doctor appointment, etc.

An eligibility requirement for federal disability retirement is having a medical condition (injury or illness) that prevents your ability to provide useful and efficient service in your current job with the federal government. It’s certainly true stress can make you ill and cause a host of medical or mental issues, but is stress alone enough to qualify you for federal disability retirement?

Maybe.

The main question here is if you were removed from your stressful environment, would you be able to perform your essential job duties efficiently? Would you “get better”? If the answer is yes, or probably, stress would not qualify you. On the other hand, if the answer is no, then you need to understand how to successfully prove your “situational disability”.

A situational disability is location specific, attributed to something or someone that only shows up at your workplace. The disability is NOT situational if it extends beyond the workplace and prevents you from doing ANY job in your agency.

These cases are especially hard to prove because it’s usually considered causally connected to something or someone, so merely removing yourself from that environment would essentially “cure” you. If you’re going to claim stress as your medical condition, be sure to include objective medical evidence connecting the stressor to your inability to perform your job duties.

If you think you fall into this category, give us a call at 877-226-2723 or fill out this INQUIRY form. We’d love to schedule you with a FREE consultation and get more information from you.
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How Will the Shutdown Affect YOUR Retirement?

shutdown

We are now in week 3 of the partial government shutdown. We are also in a new year, which means this time is a popular one for federal employee retirements. More than 300,000 federal employees are on furlough without the guarantee of back pay, and an additional 500,000 are working but facing a delay in their paychecks.

Due to the end of the year being a popular time to retire, some employees have spent their last days “working” in a furlough status. The Office of Personnel Management has issued guidance on furloughs and their effect on retirement planning, paperwork processing, and benefits. This information is also important for those wanting to apply for federal disability retirement, or who are waiting on their application to be processed by OPM. Below are some highlights from the guidance.

  • Retirement planning—a furlough period in a non-pay status is treated as a period of leave without pay. Employees receive credit for LWOP periods up to 6 months in a calendar year without impact on their service credit for retirement or their High-3 average salary.
  • Retirement effective during a furlough period—employees will be credited with service through their effective date of retirement as if there was no furlough. For example, if the effective retirement date was December 31, 2018, an employee will receive service credit through the end of business that day but not beyond that.
  • It’s important to keep in mind there may be a delay in the processing of retirement applications because the employees responsible for finalizing retirement packages may be furloughed. That also means retirement applications can’t be sent to OPM.
  • Lump sum payments for annual leave at affected agencies will be delayed until funds are available.
  • Retirees will receive the cost of living adjustment in their retirement payment on January 1st.

Benefits/Insurance

Employees currently enrolled in the Federal Employees Health Benefits Program will continue their enrollment for up to 1 year in a non-pay status with the government continuing to pay its share. The effective date of an Open Season enrollment change will be unaffected by the shutdown.

Federal Employee Group Life Insurance continues to pay for 1 year for those in a non-pay status, without cost to the employee.

Coverages of expenses under flexible spending accounts won’t be reimbursed until the employee returns to pay status.

Any eligible dependent care expenses incurred during the non-pay status may be reimbursed up to whatever balance is in the employees’ dependent care account, so long as the expenses incurred during the non-pay status allow the employee to work, look for work, or attend school full-time.

Federal Long-Term Care Insurance Program coverage continues if premiums are paid.

Federal Employee Dental and Vision Insurance Program coverage will continue but employees will get a direct bill for past due premiums if no premium is paid for 2 consecutive pay periods.

As far as the Thrift Savings Plan is concerned, employees can make inter-fund transfers of their existing account balance during the furlough period and, may be entitled to make up contributions when they return to pay status.

There should be little effect on Social Security checks. Most Social Security offices are open and are processing payments because the agency has full-year funding already.

The shutdown may be in full swing but that doesn’t mean you should wait to file a federal disability retirement application if you can no longer work in your current job due to an injury or illness. If you need help doing so, please don’t hesitate to call us and set up a FREE consultation with us. Call us at 877-226-273 or fill out this INQUIRY form.

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