Soon Feds Will Be Able to Sign Up Online to Join a COVID Hazard Pay Lawsuit

The union behind a class action lawsuit aimed at granting hazard pay to federal workers who risk exposure to COVID-19 through their jobs will launch a website next week for frontline workers to sign up as plaintiffs.

The American Federation of Government Employees and five employees from the U.S. Bureau of Prisons, the Agriculture Department and the Veterans Affairs Department filed the suit in the U.S. Court of Federal Claims in March 2020, arguing that by not providing hazard pay to employees who interact with people and materials that could carry the virus, the government is violating both federal law and Office of Personnel Management regulations.

Since it was filed nearly two years ago, movement on the case has been slow. Attorneys for the federal government asked a judge to dismiss the case in December 2020, and attorneys for the plaintiffs responded to that request a year ago. But since then, a separate case seeking hazard pay for frontline workers was dismissed by a different judge and is currently under appeal. As a result, a stay has delayed further proceedings in the case.

The lawsuit seeks 25% hazard pay for federal workers who have been exposed to COVID-19 in the course of their work, with the exception of feds whose position descriptions include exposure to infectious diseases as a condition of employment. That hazard pay would also apply in instances where employees worked overtime over the past two years.

AFGE is setting up a website for feds to sign up now because, unlike most class action lawsuits, where anyone who meets the definition of the “class” of plaintiffs is automatically eligible for awards if they win the case, plaintiffs must sign up ahead of time, due to the fact that the case is in the U.S. Court of Federal Claims and involves alleged violations of the Fair Labor Standards Act.

And although the judge in the case has not set a deadline for people to join the lawsuit, the allegations pertaining to overtime have a much shorter statute of limitations of two years—or three if the judge finds a “willful violation” by the government—than the six year statute of limitations for regular duty hazard pay. That means feds who were exposed to COVID-19 and worked overtime in March 2020 could potentially begin to lose out on some of the money to which they would otherwise be entitled if they don’t opt into the suit within the next month.

“Hypothetically speaking, if someone signs up in December 2022, their claim would go back six years for the hazard pay, and that covers the entire pandemic,” said Heidi Burakiewicz, an attorney representing the plaintiffs. “But it would only go back to December 2020 for the Fair Labor Standards Act overtime portion of the claim, unless the court extends the statute of limitations from two to three years because it’s a willful violation.”

The overtime portion could be critical for frontline workers who work at chronically understaffed agencies like the U.S. Bureau of Prisons, Burakiewicz said.

“People have been working so much overtime . . . it reminds me of a group of people who came and sat down with me yesterday,” she said. “One of the union officials was on a ventilator for weeks with a 15% chance of survival, and thankfully they survived, but now their lungs are like those of a 90-year-old. They were already understaffed to begin with, and on top of that the staff themselves were getting sick and not able to come to work. Plus, every inmate who has to go to the hospital needs a correctional officer to be there with them, so the people who were healthy just worked so much overtime.”