Why Are Federal Courts Denying Hazardous Duty Pay For Feds Forced To Take Risks With COVID?

In much of our country, the coronavirus pandemic is at a low ebb—at least in the minds of much of the public, amid everyday experience and commonplace images of people flooding back into public spaces like airports, restaurants and sports arenas. 

But the fact is the virus is still around, causing illness, disability and—yes—even death, for hundreds of people each day. And even as scientific controversy exists over the exact numbers—especially as attention and data collection slackens and the federal public health emergency nears its announced end this May—between early 2020 and the present the virus has killed or disabled millions of people in the U.S. alone. 

The toll is terrible, but it could have been even worse. In the earliest days of the pandemic, the federal government arguably stumbled, but then—even in the notoriously strained relations between the White House and highest medical authorities—agencies moved in fits and starts to protect the public as well as millions of federal employees and contractors.

Now, nearly three years later, the judicial branch has just thrown a wrench in the works for those who expected federal agencies to hew to more supportive pandemic-era policies, and pay extra to those whose duties forced them to take greater risks of catching the virus. In Adams et al vs. U.S., the U.S. Court of Appeals for the Federal Circuit last week ruled against Bureau of Prisons employees who had been pressing for hazardous duty pay because of known and ever-present dangers of on-the-job exposure to COVID—posed by both infected inmates and staff as well as surfaces and other workplace exposures. The BOP workforce and its facilities have been among the hardest hit by the pandemic.

“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,” the court’s 10-2 majority decision states, stipulating to the plaintiff’s factual claim of increased danger—and noting the federal workforce-wide implications of the case. “Appellants’ asserted basis for hazardous duty and environmental differential pay might encompass many federal employees in federal workplaces where ambient exposure to COVID-19 might occur.” 

Yet, the court concluded, the outcome of the case depends also on the law, and specifically whether the Office of Personnel Management’s “existing regulations” permit agencies to render the additional pay. Unfortunately for the plaintiffs, the court determined they do not. 

The hitch? Despite the court noting OPM’s 57 Hazardous Duty Pay (HDP) and 35 Environmental Differential Pay (EDP) categories—some of which include biological hazards—the majority on the appeals court agreed with the lower court’s February 2021 determination that none of these applied, ruling against the plaintiffs. 

“The Claims Court determined that Appellants failed to state a claim for hazardous duty pay because neither 5 U.S.C. § 5545(d) nor OPM’s implementing regulations provide hazardous duty pay for workplace exposure to objects, surfaces, and/or individuals infected with COVID-19,” the appeals court’s majority wrote. 

“Federal employees who do not fit into one of the HDP or EDP schedules’ categories but whose duties nonetheless expose them to particularly heightened risk associated with an infectious disease circulating within the general population, such as COVID-19, might understandably believe that they should receive additional compensation for such work during a pandemic,” the court continued. 

One “might understandably believe” so, yes. 

Yet—contrary to that commonsensical expectation—the appeals court concluded: “But that is a matter for Congress or OPM to address.” Meaning: it is something that remains to be done. So, for the federal courts that have handled the Adams case to date, more explicit and granular new laws and new regs covering COVID’s dangers are needed before employees (at least employees in the current case) would have a sufficient legal claim to hazard pay.

It should be noted that the minority on the appeals court filed a lengthy and spirited dissent, finding the plaintiffs had more than enough heft in their case to argue for hazard pay under existing law and regulation. 

“Extra pay—for hazards and other reasons—has existed for over 100 years in certain jobs and parts of the workforce,” Nelson Lichtenstein, a labor historian at UC Santa Barbara and, with respect to the appeals court decision, a fellow dissenter—told Government Executive. “And it’s thanks largely to the union movement that there’s been, for example, extra pay for Sundays, overtime, and in many cases for work in difficult or hazardous places. Of course, hazardous duty pay was also developed in the military.” 

“As a general point, the courts in the U.S. have become, in many instances and in different ways, more anti-labor,” Lichtenstein, whose book State of the Union explores this aspect too. “On its face, in this case, it looks like one of those situations where hazard pay is denied for narrow, technical reasons.” 

“Hazard pay is a well-established technique for paying people when things are dangerous or extra difficult. And in federal government jobs, that principle is right there in law and in the rules. Here—for COVID, in these circumstances—the courts just seem to see some technical things to deny it with.” 

John P. Beck, a professor of labor relations at Michigan State University, agrees one factor at work here—and something that tends to diminish the nation’s public servants despite their heroism in a national crisis—is labor power’s long slide. 

“It is true, that our courts have trended against labor over time,” Beck told Government Executive. “But I think that there are added aspects at work here, beyond the details of that trend or the known costs of the virus. There’s also a worry: That we are not out of the COVID woods yet.” 

“I think that there’s a kind of conservatism across many courts about swinging too far toward making coronavirus a significant enough problem that it gets permanently elevated—here, to be on a par with other better known and well-categorized workplace hazards.” 

“I’m saying what’s in play is not just courts looking backward, but looking forward,” Beck continued. “Jurists like everyone else know we could be in for ongoing spikes of COVID—and there are all these unknowns about what that means. The known hazards in past cases for hazard pay were at an endemic level, rather than epidemic or pandemic level—and courts may be asking, will we be offering hazard pay for something that becomes like regular flu season? It’s a potentially far larger group in the future, and we don’t know how dangerous or not dangerous it will be. The future of COVID is amorphous—as a contagion, as a public health problem, and as a potential expense.”