Appeals Court Rules Federal Workers Not Entitled to COVID Hazard Pay

In a 10-2 decision with potentially “far-reaching” consequences for the public sector workforce, an appeals court has ruled that federal workers are generally not entitled to extra pay for being exposed to COVID-19 as part of their jobs.

As Reuters has reported, the U.S. Federal Circuit Court of Appeals ruled against 188 current and former correctional employees at a federal prison in Danbury, Conn., where these workers said they worked with or in close proximity to people, objects and surfaces infected with COVID-19, and were not provided with sufficient protective gear to perform their duties. As such, the plaintiffs claimed they were entitled to hazardous duty and environmental differential pay.

As the suit noted, the Office of Personnel Management (OPM) defines hazardous duty as “duty performed under circumstances in which an accident could result in serious injury or death, such as duty performed on a high structure where protective facilities are not used or on an open structure where adverse conditions such as darkness, lightning, steady rain or high wind velocity exist. In other words, an employee performs a hazardous duty where there is a recognized danger that the employee would suffer a serious injury or death if an accident were to occur.”

Upholding a 2021 ruling by a federal Court of Claims judge, the appeals court found that the OPM—which serves as the human resources agency for more than 2 million federal employees—has no regulations that afford workers with extra pay for exposure to contagious diseases in in most settings.

The court also noted that exceptions covered some laboratories and tropical jungles, “and that it was up to Congress or the agency to add categories,” Reuters’ Jonathan Stempel wrote.

‘Exploring All Options’

“COVID-19 has undoubtedly presented a significant health risk to both appellants and the general population. And we recognize that pandemics are historically rare,” the appeals court judges wrote.

“But the current Virulent Biologicals and Micro-organisms categories of OPM’s HDP [hazardous duty pay] and EDP [environmental differential pay] schedules do not cover ambient exposure to serious, communicable diseases transmitted by infected humans. That is, the HDP and EDP schedules do not provide payment in situations where an employee is exposed to another employee or individual carrying an infectious disease.”

COVID-19 is “a serious national and international health concern, and the potential ramifications of this case are far-reaching and cut across the entire federal workforce,” Circuit Judge Raymond Chen wrote in the ruling.

“We conclude that OPM simply has not addressed contagious-disease transmission (e.g., human-to-human, or through human-contaminated intermediary objects or surfaces) in most settings,” Chen added. “That is not to say that such differential pay may not be warranted.”

In his dissent, Circuit Judge Jimmy Reyna opined that the prison employees plausibly alleged that they deserved extra pay for exposure to unusually hazardous conditions, adding that the coronavirus pandemic adversely affected workplaces, schools, airlines, hotels, meat-packing houses and hospitals, for example.

“Even courthouses were momentarily shuttered on the premise that COVID-19 was in the streets roaring like a lion,” Reyna wrote. “We cannot shake off those experiences like dust from a rug.”

OPM did not immediately respond to requests for comment from Reuters. But, one of the plaintiffs’ attorneys provided an email statement to the London-based news agency, noting that the plaintiffs’ legal team is pursuing other means to secure hazardous duty pay for their clients.

“Sadly, the majority was motivated by fear of the floodgates,” Molly Elkin, a partner at Washington, D.C.-based McGillivary Steele Elkin, told Reuters. “We are exploring all options available to get our brave correctional officers the hazard pay they deserve for working in a crowded prison—a Petri dish for COVID-19.”