Until Oct. 3, OMB’s "Frequently Asked Questions During a Lapse in Appropriations" document highlighted the Government Employees Fair Treatment Act, the 2019 law enacted as part of the deal to end the 35-day partial government shutdown during President Trump’s first term. Signed into law by Trump, the law requires back pay for furloughed and excepted federal workers after government funding is restored after “any lapse in appropriations that begins on or after December 22, 2018.” Until the law’s passage, Congress had to OK back pay for furloughed workers after each lapse. 

“All excepted employees are entitled to receive payment for their performance of excepted work during the period of the appropriations lapse when appropriations for such payments are enacted,” stated the document, which was updated Sept. 30 before this year's shutdown began. “The Government Employee Fair Treatment Act of 2019 (Public Law 116-1) provides that upon enactment of appropriations to end a lapse, both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”

But the latest version of the document omits the latter sentence and references to OPM guidance on the topic. That removal is the only change between the two document versions, aside from the date.

OPM’s shutdown guidance, last updated Sept. 28, still says that furloughed workers will receive back pay after the shutdown.

“After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods,” OPM wrote. “Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”

After Government Executive asked the White House about the change on Monday evening, Axios on Tuesday reported that senior administration officials were developing guidance that furloughed federal workers are not entitled to back pay. The White House officials said it would take a novel interpretation of the back pay law and argue it applied only to the 2019 shutdown.  

More than 620,000 employees are currently furloughed, a number that will continue to climb as the shutdown drags on.  

Sen. Chris Van Hollen, D-Md., who helped write the 2019 back pay measure and shepherd it into law with then-Sen. Ben Cardin, D-Md., said the language of the statute left no room for interpretation. 

“The law is the law," Van Hollen said. "After the uncertainty federal employees faced in the 2019 Trump Shameful Shutdown, Sen. Cardin and I worked to ensure federal employees would receive guaranteed back pay for any future shutdowns. That legislation was signed into law—and there is nothing this administration can do to change that.”

Sen. Tim Kaine, D-Va., threatened legal action if the Trump administration follows through on its newly minted legal interpretation.

"I was proud to work across the aisle in 2019 to pass legislation that President Trump himself signed to guarantee backpay to federal workers in the event of a shutdown," Kaine said. "If OMB chooses thuggish intimidation tactics over following the law, it better prepare to face the American people in court." 

Matt Biggs, national president of the International Federation of Professional and Technical Engineers, described OMB’s decision to remove reference to the law “highly suspicious.”

“The Federal Employee Fair Treatment Act is bipartisan law that has been in effect since 2019, and one that passed the House overwhelmingly with only seven no votes, passed the Senate on a voice vote without a single senator raising a concern, and was signed by President Trump,” he said. “Despite the OMB director’s clear disdain for our federal workforce, he can’t unilaterally ignore a law that overwhelmingly passed both chambers of Congress and was signed by President Trump himself. The OMB needs to stop playing games with the livelihoods of federal workers and their families.”