The court cited a decision where federal prison employees were denied hazard pay in connection with working amid second hand smoke.

The court cited a decision where federal prison employees were denied hazard pay in connection with working amid second hand smoke. serggn / Getty Images

Federal Prisons Employees Aren’t Entitled to COVID Hazard Pay, Appeals Judges Rule

In a 10-2 decision, the appeals court said OPM regulations around hazardous duty pay only address the handling of “virulent biologicals” in a laboratory setting, not “ambient” exposure to infected individuals.

A federal appeals court on Tuesday ruled that U.S. Bureau of Prisons employees cannot sue over the government’s denial of hazard pay benefits in connection with their work during the COVID-19 pandemic.

In a 10-2 decision by the full U.S. Court of Appeals for the Federal Circuit, the judges said that under the Office of Personnel Management’s existing regulations governing hazard pay, only federal workers enlisted to work in a laboratory setting with “virulent biologicals” are entitled to enhanced pay for dangerous work not included in their job description.

Nearly 200 employees at a federal prison in Connecticut filed the lawsuit in 2020, arguing that they were entitled to hazard pay because they worked in close proximity to people, objects and surfaces infected with COVID-19 and were not provided sufficient personal protective equipment. Their lawsuit was dismissed by both the U.S. Court of Federal Claims and a three-judge panel on the federal circuit court, but the circuit court agreed to an en banc review by all 12 jurists.

In its decision, penned by Circuit Judge Edward Chen, the court found that although the law establishing hazard pay for federal workers does not preclude offering the benefit to prison employees, regulations for the program issued by the Office of Personnel Management do not currently allow it. Chen wrote that provisions related to work with “virulent biologicals” are limited to working specifically with those materials, such as in a laboratory environment.

“The examples listed in [the environmental differential pay] schedule’s high risk micro-organisms subcategory require (1) ‘direct contact with primary containers of organisms pathogenic for man,’ (2) ‘operating or maintaining equipment in biological experimentation or production,’ or (3) ‘cultivating virulent organisms on artificial media,’” the court wrote. “These examples do not cover situations in which employees working with inmates face contagious-disease transmission via ambient exposure to COVID-19 in the workplace by way of infected humans, for there is no work ‘with’ COVID-19 in this context.”

The court cited the 2007 Adair v. U.S. decision, in which federal prison employees were denied hazard pay in connection with working amid second hand smoke, and argued the fact that other sections of OPM’s hazard pay regulations cover the risk of infection with dangerous diseases reinforce their narrow reading of the provision on toxic chemicals and micro-organisms.

“For example, the [hazardous duty pay] schedule uses clear language in the tropical jungle duty category indicating that a possibility of exposure to infectious diseases in a jungle work environment is entitled to differential pay,” the decision states. “As such, the [hazardous duty pay] schedule covers ambient exposure to infectious diseases that may be inherently present in a jungle environment. In contrast, the virulent biologicals and micro-organisms categories lack any corresponding description of ambient exposure in a workplace to those hazardous materials from outside sources; they instead are directed to working directly or indirectly with the hazardous material itself.”

But in a dissent, Judge Jimmie Reyna argued that the court’s majority ignored facts and testimony from the federal government that undercut their narrow reading of the regulations. Specifically, OPM guidance from March 2020 suggested that there may be several instances in which federal workers could qualify for hazard pay due to COVID-19 exposure outside of a laboratory setting.

“The OPM memo provides that COVID-19 exposure falls within the [hazardous duty pay] ‘virulent biologicals’ category when the employee is ‘exposed to the virus during the performance of assigned duties (e.g., as in the case of a poultry handler or health care worker)’ but not when the employee is incidentally exposed ‘to the public or other employees who are ill,’” Reyna wrote. “Poultry handlers and health care workers are obviously not laboratory employees working directly or indirectly with COVID-19. These employees’ jobs, like the poultry handlers, require them to work closely with or around other people, subjecting the employees to the hazard of COVID-19 exposure while on the job.”

Reyna also took issue with the court’s citation of Adair, which he said is different because employees could not be expected to know they would encounter highly transmissible and deadly diseases like COVID-19 when they accepted job offers to work in prisons.

“When the common understanding of the term ‘unusual’ is applied, exposure to COVID-19 is clearly distinguishable from the issue in Adair—exposure to secondhand tobacco smoke at a facility that had long allowed inmates to smoke,” he wrote. “Because smoking by both workers and prisoners was long permitted at correctional facilities, the typical working environment knowingly included exposure to secondhand smoke. Conversely, it is plausible that exposure to COVID-19 was not reasonably foreseen as a condition of appellants’ work, unlike the ‘expected condition’ of exposure to secondhand smoke in Adair.”