Bureau of Prisons employees had been pressing for hazardous duty pay because of known and ever-present dangers of on-the-job exposure to COVID.

Bureau of Prisons employees had been pressing for hazardous duty pay because of known and ever-present dangers of on-the-job exposure to COVID. Jantanee Rungpranomkorn/Getty Images

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

“On its face, in this case, it looks like one of those situations where hazard pay is denied for narrow, technical reasons,” says one labor historian.

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.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.