The IRS has recalled more than half of its total workforce to work without pay and to help issue tax refunds during the partial government shutdown, but some financially hard-pressed employees remain at home, due to a clause in their union’s contract with the agency.

Under the National Treasury Employees Union’s agreement with the IRS, excepted agency employees facing financial difficulty during the lapse in appropriations can opt to remain furloughed if they face significant financial challenges reporting to work.

According to the contract, the agency “will consider an employee’s request not to work due to a hardship.” If the IRS honors the employee’s request to stay furloughed, another agency employee will be assigned the excepted position.

In a Jan. 18 memo clarifying how excepted employees can take leave during the shutdown, the Office of Personnel Management added that if an excepted employee is unable to work based on a “legitimate impediment,” agencies and supervisors retain the right to put them on furlough.

In Ogden, Utah, a major IRS hub with more than 5,000 and its own standalone campus, Jenny Brown, president of NTEU Chapter 67, said roughly 25 percent of employees have requested hardship leave.

“They don’t have the money to put gas in their car,” Brown said in an interview Thursday, referring to employees who face a 30-to-45-minute commute to work each way.

Another employee told Brown she couldn’t continue to pay for her child’s daycare expenses, which run about $350 every two weeks. As a result, the IRS worker has chosen to stay at home to care for her daughter.

“When they call her back, she can’t go back to work and then have to pay $350 [every other] week for somebody to watch her child,” Brown said.

Horatio Fenton, president of NTEU chapter 22, which represents 463 employees in the greater Philadelphia area, said he’s heard from “quite a few” members who have requested hardship leave. In some cases, they’ve struggled to come up with the money for bus fare.

“These are the employees who have the least amount of resources to get into work. a lot of those employees have already turned to food banks, because there is just no money,” Fenton said Friday.

The Philadelphia-area employees called back to the office include those who answer the agency’s tax-help hotlines and process income tax returns. However, Fenton said agency staff that handle audits and collections, or offer assistance at walk-in Taxpayer Assistance Centers, remain on furlough.

As nearly 800,000 federal employees missed their second payment Friday under the shutdown, NTEU national president Tony Reardon said IRS employees face “real hardship” trying to balance with work with no pay, while managing daily expenses.

Bob Tobias, a former NTEU national president, now a professor teaching public sector leadership for American University’s Key Executive Leadership programs, said the language in the union’s contract leaves the definition of hardship up to employees.

“If I’m a GS-5 or a GS-7 and I just suffered a huge medical cost or crashed my car, a hardship to me is different from you, who’s got $20,000 in the bank because you’ve been saving it and your husband is also working,” Tobias said. “I don’t believe that there can be a universal definition of hardship.”

Based on what she’s heard from her members, Brown said local agency managers have raised no issue with employees filing for hardship leave.

“From what I’ve seen, my opinion is that they’ve been understanding of the situation these employees are in,” she said. “From employees that have called in, they’ve said their managers have understood [and] haven’t given them a hard time.”

Reardon added that IRS management “understands the stress that employees are under” and have accommodated employees who have experienced hardship. However, he emphasized agency employees can only take hardship leave if they have a demonstrated inability to come into work.

“NTEU does not support employees using it as a form of protest but we do support people using it for true financial hardship,” Reardon said. “I want to reiterate that even as IRS employees continue to struggle with a lack of pay, they are dedicated to their jobs and returning to work, as directed, if at all possible.”

Brown said her coworkers take pride in their work, and wouldn’t take hardship leave unless necessary.

“We love our jobs. We serve the taxpayers, we help them get their refunds back. We help them file their tax returns timely and correctly. We want everybody to get their refund on time, we want to be able to be there at work. Everybody that can go in, is going in. I don’t know of a single person that’s taking advantage of the hardship request.”

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