Federal Workers, Union Sue for Hazard Pay

A group of five federal workers and the nation’s largest federal employee union last week filed a class action lawsuit against the Trump administration, arguing that federal employees exposed to the novel coronavirus through their jobs are owed hazardous duty pay.

The American Federation of Government Employees and workers at the U.S. Bureau of Prisons, the Agriculture Department and the Veterans Affairs Department sued the federal government in the U.S. Court of Federal Claims, alleging that by not providing hazard pay to employees who interact with people and materials that could carry the virus, it is violating both federal law and Office of Personnel Management regulations.

Federal law requires agencies to provide a 25% increase in pay for duty involving “unusual physical hardship or hazard.” OPM regulations specifically list exposure to viruses as a condition that would make federal workers eligible for hazard pay.

“The schedule of hazardous duty pay differentials set forth in [OPM’s regulations] provides that agencies shall pay a 25% hazard pay differential when employees perform work with or in close proximity to ‘virulent biologicals,’ which are defined as ‘materials of micro-organic nature which when introduced into the body are likely to cause serious disease or fatality and for which protective devices do not afford complete protection,’” the lawsuit stated.

AFGE and the employees argued that according to these regulations, they are entitled to hazard pay from Jan. 27, when the first COVID-19 case was confirmed in the United States, until now. That is in part because the plaintiffs still have not been provided with adequate equipment to protect themselves from exposure to the virus.

“From January 27, 2020 through the present and continuing and ongoing, plaintiffs and others similarly situated have performed work with or in close proximity to objects, surfaces, and/or individuals infected with COVID-19 without sufficient protective devices,” they wrote. “For example, during the week of March 2, [one of the plaintiffs] performed work in close proximity to objects, surfaces, and/or individuals infected with COVID-19 when she performed work in the same facility as at least one food industry employee who was infected with COVID-19.”

Guidance from OPM earlier this month confirmed that agencies may provide hazard pay to employees, but “only when the risk of exposure is directly associated with the performance of assigned duties.”

In recent days, federal employee unions and Democratic lawmakers fought, unsuccessfully, to provide hazard pay to some federal workers as part of the $2.2 trillion stimulus package signed by President Trump last week. Advocates hope to secure funding for the benefit in the next bill responding to the coronavirus outbreak, which observers expect to be under consideration late next month.

“Each day front-line federal employees willingly risk their health and their families’ health to provide critical services to the American people. It is our hope that the government does right by these employees and pays them the hazardous duty pay they’ve earned,” said AFGE National President Everett Kelley. “I also implore Congress to pass legislation to provide hazardous duty pay to all front-line federal employees not already covered by existing laws like our nurses in federal prisons, transportation security officers at airports, and health care workers at the VA who provide direct patient care to our nation’s veterans.”