THE BLOG
10/11/2013 04:49 pm ET Updated Dec 11, 2013

The Essential Loopholes

When is it essential to be essential?

That's a question that is befuddling federal agency senior management, more and more, as the government shutdown moves into its second week.

"Essential" government workers are those exempted from the shutdown. They are showing up for work and being paid as usual, a skeleton crew keeping government agencies minimally operational while their non-essential brethren have a forced sabbatical.

But the definition of the term essential, it turns out, is a moving target, at once vague and elusive. And the non-essentials? Well, they're going to need a Netflix account since they are prohibited from doing any work -- even if they do so on their own time.

Perhaps agency heads should deem all their employees to be essential since the work of every agency can depend on the input of everyone down the chain of command.

If loopholes and waivers can be made bigger than the closure's prohibition on work, maybe that could be a way around this seemingly intractable political stalemate.

As they seek to deal with the shutdown's fallout, agency heads must also be mindful of the prohibition on furloughed employees doing anything meaningful while the government is closed. That prohibition has been the law since 1884.

The Antideficiency Act of 1884 bans federal government employees from working if there is no money appropriated to pay them. This means no numbers crunching, no word processing, no email. Some agencies take the old law so seriously that they have demanded workers turn in their government-issued cell phones and laptops.

But there are exceptions, and their number continues to grow as agency lawyers reconsider which employees are actually needed. And so, as the shutdown grinds on, the number of furloughed employees has also been getting smaller. Now, hundreds of thousands of federal employees are working, including many at the Pentagon who, it turns out, are exempted like troops because they "focus on the morale, well-being, capabilities and readiness of military members."

Other agencies are following the Pentagon's lead. Emergencies, like threats to the republic or to life and property, require government workers. The CIA called back intelligence gathers and analysts, the Centers for Disease Control called back employees to deal with a salmonella outbreak, and the Federal Aviation Administration brought back hundreds of public safety folks.

Of course, even as federal workers are gradually called back in, the ripple effects are being felt across Washington and beyond by millions of federal contractors, who are not furloughed, but are unable to do their jobs without their government partners.

But, when it's over, the joke may be on the essential few. The Congress already has signaled it will treat furloughed workers as it has in the past, paying them even though they didn't do any work during the shutdown. So those furloughed will end up with paid vacations, essentially.

Caren Z. Turner, is the CEO Turner Government & Public Affairs www.turnergpa.com and plays an active role in every client's government and public affairs strategy.

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