FMCS Contingency Plan for Lapse of Appropriations, January 2026

FEDERAL MEDIATION AND CONCILIATION SERVICE

OFFICE OF THE DIRECTOR MEMORANDUM TO: Office of Management and Budget FROM: Anna Davis, General Counsel Performing the Duties of the Director DATE: January 14, 2026 RE: Lapse Plan for Agency Operations in the Absence of Appropriations This memorandum establishes a contingency plan that will become operational in the event of a lapse in appropriations to fund current activities of the Federal Mediation and Conciliation Service (FMCS). The plan provides for an orderly suspension of most agency operations and continuation of limited essential functions. Summary of Agency Functions FMCS is an independent executive branch agency whose primary mission is to assist parties in labor disputes in industries affecting commerce, to settle such disputes through conciliation and mediation, and thus to avoid or minimize the disruptive effects of strikes and/or lockouts. FMCS also establishes collaborative labor-management programs. FMCS provides its services variously to the private and public sectors, including federal agencies and state and local governments. The agency also maintains and provides aggrieved parties with rosters of arbitrators. FMCS conducts its core program operations at its Washington, DC, headquarters. Except as described in this plan, all agency offices will close, and core operations will cease upon a lapse in appropriations. The following offices support FMCS's core program areas and services: Office of the Director • Headquarters • Field Operations •

Estimated time (to nearest half day) required to complete shutdown activities: 0.5 Total number employees expected to be on board before implementation of the plan: 90

Total number of employees to be retained under the plan for each of the following categories:

Compensation is financed by a resource other than annual appropriations: 0 Necessary to perform activities expressly authorized by law: 8 Necessary to the discharge of the President's constitutional duties and powers: 1 Necessary to protect life and property: 0

Brief summary of significant agency activities that will continue during a lapse:

only if all three of the following conditions are met: 1) the parties are in certain critical industries, including most particularly the defense, health care, and critical infrastructure industries;

1. the Agency Head determines that FMCS services are necessary to protect life or property; and
2. such threat to life or property is imminent and an immediate response is necessary to avoid or minimize the disruptive effects of a work stoppage, strike, lockout, or similar event. The Agency Head will determine the need for its services on a case-by-case basis, pursuant to

Brief summary of significant agency activities that will cease during a lapse:

activities of supporting internal offices, with the exception noted above. Brief summary of significant agency activities that will continue during a lapse: FMCS will continue to provide its services--most commonly collective bargaining mediations--only if all three of the following conditions are met: 1) the parties are in certain critical industries, including most particularly the defense, health care, and power generation industries; 2) the Agency Head determines that FMCS services are necessary to protect life or property; and 3) such threat to life or property is imminent and an immediate response is necessary to avoid or minimize the disruptive effects of a work stoppage, strike, lockout, or similar event. The Agency Head will determine the need for its services on a case- by-case basis, pursuant to applicable legal standards and this plan, from among a limited number of cases. Brief summary of significant agency activities that will cease during a lapse: Upon a lapse in appropriations FMCS will suspend all core operations and services and all activities of supporting internal offices, with the exception noted above. Legal Standards Applicable to Determinations Under the Contingency Plan FMCS will continue to provide its services-most commonly collective bargaining mediations- The United States Constitution provides, "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law[.]" U.S. Const. art 1, § 9, cl. 7. The Antideficiency Act (the

Upon a lapse in appropriations FMCS will suspend all core operations and services and all

Lapse Plan Summary Overview Page 2 Lapse Plan for Agency Operations in the Absence of Appropriations applicable legal standards and this plan, from among a limited number of cases.

Act) prohibits officers and employees of the Federal government from incurring obligations in advance of appropriations except where such obligations are authorized by law. 31 U.S.C. § 1341 (a)(1)(B). The Act further prohibits officers and employees of the Federal government from employing personal services exceeding those authorized by law except for emergencies involving the safety of human life or the protection of property. Such emergencies do not include ongoing regular functions of government, the suspension of which would not imminently threaten the safety of human life or the protection of property. 31 U.S.C. § 1342. The Attorney General has determined that the exception for emergencies under the Antideficiency Act is narrow and must be applied only where there is: 1) a reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property; and 2) some reasonable likelihood that the safety of human life or the protection of property would be compromised in some significant degree by delay in the performance of the function in question. Accordingly, "the emergencies exception applies only to cases of threat to human life or property where the threat can be reasonably said to the [sic] near at hand and demanding of immediate response." Memorandum for Alice Rivlin, Director, Office of Management and Budget, August 16, 1995. The Attorney General has also opined that agencies are by necessary implication authorized to incur those minimal obligations necessary for the orderly termination of functions that may not continue during a period of lapsed appropriations. See "Applicability of the Antideficiency Act Upon a Lapse in an Agency's Appropriations," 4A Op. O.L.C. 16 (1980); "Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations," 5 Op. (1981). The Attorney General has further noted that, with respect to any short lapse in appropriations, it is appropriate for an agency to assume in its analysis of emergencies that the private economy will continue operating during the lapse. Memorandum for Alice Rivlin, ibid. Agency Functions that Will Continue During a Lapse in Funding as Excepted Activities FMCS will continue to provide its services--most commonly collective bargaining mediations--if all three of the following conditions are met: 1) the parties are in certain critical industries, including most particularly the defense, health care, and power generation industries; 2) the Agency Head determines that FMCS services are necessary to protect life or property; and 3) such threat to life or property is imminent and an immediate response is necessary to avoid or minimize the disruptive effects of a work stoppage, strike, lockout, or similar event. The Agency Head will determine the need for its services on a case- by-case basis, pursuant to applicable legal standards and this plan, from among a limited number of cases. The number of cases the Agency Head will consider is presently limited to percent of cases that, absent a lapse in funding, are otherwise eligible for mediation. From among these cases, the Agency Head will provide mediation services only where it is determined that failure to offer mediation services poses an imminent threat to life or property. The Agency Head estimates that, to provide these excepted services, the agency will need to retain employees in the job categories and full-time equivalents as follows as determined by a specific requirement (aside from the Agency Head, who will continue working): up to two (2) employees in the Office of the Director; up to one (1) Associate Deputy Director; up to five (5) headquarters personnel; and up to eight (8) Mediators. Orderly Shutdown Activities In the event of a funding hiatus, the agency will proceed with the orderly shutdown of non-excepted activities beginning on the first day of the hiatus. The Agency Head will authorize only actions that will

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contribute to an orderly shutdown, with primary consideration given to protecting life and safeguarding government property and records. The Agency Head estimates that the orderly shutdown of non-excepted operations will require not more than one-half workday. The Agency Head's intention is to accomplish shutdown in a way that will facilitate prompt reactivation when funds are made available: 1. The Agency Head will notify the Office of Management and Budget (OMB) immediately when shutdown activities are being initiated, by notice to the OMB Labor Branch Chief. 2. The Agency Head will limit obligations incurred to those needed to maintain the minimum level of essential activities necessary to protect life and property; to process necessary personnel actions; and to process the personnel payroll for all periods prior to fund interruption. 3. The Agency Head will notify agency senior managers (including the Chief Operations Officer, General Counsel, headquarters managers, Associate Deputy Director, and Field Operations Managers) of the hiatus and will direct them to begin shutdown activities. 4. The Agency Head will determine what specific services and personnel are essential and therefore excepted from suspension and, where applicable, the duration of each exception. The Agency Head will notify affected senior managers of the final determination. 5. The Agency Head will instruct the Director of Human Resources to take necessary personnel actions to notify employees of the suspension of agency operations and to release employees in accordance with law and OPM regulations, including the preparation of notices of furlough and processing of personnel and pay records in connection with furlough. 6. The Director of Human Resources will notify all employees that they should report for work as scheduled on the first workday of the hiatus. Managers or supervisors will inform employees of the status of funding and instruct them to limit their work activities to those functions necessary for the orderly cessation of operations. The Director of Human Resources will notify all employees that no work can be performed on a voluntary basis. The Director of Human Resources will also provide employees with electronic links to OPM guidance. 7. The Director of Human Resources will notify all employees of the impact of the furlough on all employee benefits, including unemployment compensation, health insurance, leave accrual, retirement, and life insurance, and will advise all employees to follow public news broadcasts and the OPM and/or OMB websites for notice of the end of the hiatus. 8. The manager of each office or division will notify absent employees of the furlough as soon as possible. Managers should contact employees in travel status, and advise them to return to their duty station immediately. Termination of Hiatus in Funding OMB will notify the FMCS Agency Head when the hiatus of appropriations has ended, and when the Agency Head in turn can advise all senior managers. Each manager will contact employees that they supervise by phone or e-mail to inform them that the hiatus has ended and to advise them that employees are required to return to work on their next regular duty day.

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