Fed. Circ. Ruling Could Create Path To COVID Hazard Pay

An upcoming Federal Circuit ruling in a case brought by federal correctional employees seeking hazard pay for working during the COVID-19 pandemic could resolve diverging lower court decisions and affect the outcome of at least 20 other cases involving thousands of workers, attorneys say.

Correctional workers are at particular risk of COVID-19 due to the nature of the prisons, lawsuits say. (AP Photo/David Zalubowsk)

Employees of the U.S. Department of Justice's Federal Bureau of Prisons and FBI, the U.S. Department of Homeland Security's Transportation Security Administration, the U.S. Postal Service and other agencies have sued, claiming the government owes hazardous duty pay and environmental differential pay due to COVID-19.

Most of these cases also allege that the government violated the Fair Labor Standards Act by not including that extra pay in overtime calculations.

Now those cases are on hold pending the Federal Circuit decision in Adams v. U.S., in which an oral argument happened Wednesday. Counsel in the other cases, which are all in the U.S. Court of Federal Claims, are eager for guidance from the appeals court and generally didn't fight the government's requests for stays.

"That decision is hopefully going to resolve the dispute as to whether working during a pandemic qualifies as a condition where federal employees should be entitled to hazard pay," said Don J. Foty of Hodges & Foty LLP, which is representing postal workers in one of the cases.

As a potential decision approaches in Adams, Law360 explores the landscape of federal employee COVID hazard pay cases.

Correctional Employees Particularly at Risk

All but a few of the pending cases involve Federal Bureau of Prisons employees. These suits all make claims for hazardous duty pay, environmental differential pay and unpaid overtime.

Under hazardous duty pay, federal employees performing certain duties, including working "with or in close proximity to" "virulent biologicals," can qualify for 25% extra pay, the suits allege.

Employees can also qualify for environmental differential pay, a 4% to 8% bump, when they are working in certain categories of duty, including "with or in close proximity to" "micro-organisms" when safety precautions "have not practically eliminated the potential for personal injury," the suits claim.

Correctional workers are at particular risk of COVID-19 due to the nature of the facilities, they argue. As Molly Elkin of McGillivary Steele Elkin LLP, which represents the workers, put it to the Federal Circuit panel on Wednesday, "It's not like these correctional officers can open up the windows, open up the doors, and get some fresh air in there. All the bad guys leave."

Elkin's firm is behind all but one of the correctional worker suits, and the firm brought them as individual actions organized around specific facilities. These suits cover 15 or so facilities in eight states and name around 2,600 workers as plaintiffs.

In Adams, the Court of Federal Claims in February dismissed the claims of around 180 workers at Federal Correctional Institution Danbury in Danbury, Connecticut. The lower court said the workers hadn't stated a claim because the hazardous duty and environmental differential pay didn't apply to COVID-19.

The lower court agreed with the government's argument, based on Adair v. United States , in which the Federal Circuit in 2007 held that correctional officers didn't qualify for environmental differential pay for working around secondhand cigarette smoke.

Elkin argued Wednesday that COVID-19 was different from secondhand cigarette smoke.

"When is the last time this country, the world, was shut down because of secondhand smoke?" Elkin said.

But the government disagreed on Wednesday. Eric Laufgraben of the U.S. Department of Justice told the panel a worker might qualify for the extra pay "if somebody were performing some sort of experimentation where they had to harvest virulent tissue cultures from animals [and] it was outside of the scope of their normal job description."

The only other significant ruling in any of the 21 cases came in another correctional worker case. In the similarly named Adams et al. v. USA, a judge in December refused to toss the suit by 115 federal correctional employees at Federal Medical Center Lexington in Lexington, Kentucky.

The judge in that case pushed back on the government's argument that the employees would have to work directly with COVID-19, such as by handling containers of the coronavirus, to claim hazard pay.

"Such a narrow reading would produce absurd results," the judge said.

FBI Employees Track Spies, Face COVID

Another case on hold pending Adams involves FBI investigative specialists. Unlike nearly all the prison worker suits, these employees in Plaintiff No. 1 v. USA in the Court of Federal Claims are bringing their claims as a proposed class and collective action, with an estimated 1,000 workers.

The investigative specialists are responsible for conducting surveillance, a job they can't do remotely, according to their lawyers Kevin J. Cole of KJC Law Group APC and Michael S. Morrison of Alexander Morrison & Fehr LLP.

"They're tracking spies and terrorists, and now they're being asked to do it despite the risk of COVID, despite there not being a vaccine available at the time," said Cole.

The hazardous duty and environmental differential pay "have a slightly different language but seem to have the same purpose," said Morrison. "That is, if your job is going to regularly or possibly expose you to these toxins, then you're entitled to a pay bump, unless your job is a job that has already in the pay grade itself accounted for this."

Given that COVID-19 was a new disease, "the idea that these positions took that into account is just not correct," Morrison added.

In a motion to dismiss, the government argued that the lead plaintiff is a general schedule employee — the main pay scale for federal employees — and therefore can't state a claim for environmental differential pay, because it is available only to employees under a different pay scale.

The lead plaintiff doesn't qualify for hazard duty pay either, because working around objects, surfaces or individuals infected with COVID-19 does not count as working "with or in close proximity" to "virulent biologicals," the government also argued, citing Adair.

More Than Packages for Postal Employees

Like the FBI employees, postal workers are bringing a suit as a proposed class and collective action claiming hazardous duty and environmental duty pay. They are also claiming unpaid overtime, which rises and falls with the other claims, said Foty of Hodges & Foty, which represents the workers in Roddy et al. v. USA in the Court of Federal Claims.

"If you're forcing workers to work in a setting where they are exposed to a virus, that puts them at risk for contracting a virus, then they should be entitled to additional hazard pay," Foty said. "Postal workers were not given the option to work remotely."

The unpaid overtime element is important and rises and falls with the other claims, Foty said.

"The law is pretty clear that if a payment like a nondiscretionary bonus is given to a worker who is otherwise paid hourly, then you have to factor in that bonus payment into the regular rate of pay," Foty said.

It made sense to bring the suit as a proposed class action because postal workers everywhere faced the same issue, according to Foty.

"There's no reason why one postal worker in Texas would get hazard pay but a postal worker working during the pandemic in Florida would not," Foty said.

The government has not filed a response or motion to dismiss yet.

TSA Employees in Contact With "Thousands"

In another proposed class action, Higgins v. United States in the Court of Federal Claims, TSA employees make claims similar to the correctional workers and FBI investigative specialists.

"It's really easy to see how someone standing in an airport for eight hours a day, coming into contact with thousands of people, is going to be exposed to COVID," said Cole, who also represents those workers.

The FBI and TSA suits so far haven't alleged unpaid overtime, but Cole said they might add the allegation when the stays lift.

The government argued in a motion to dismiss that the TSA worker behind the suit doesn't qualify for hazardous duty or environmental differential pay because such workers are governed by the Aviation and Transportation Security Act of 2001, which gives the TSA authority over employment policies and thus displaces the two pay statutes.

And coming into contact with COVID-infected individuals doesn't qualify as "work with or in close proximity to" "virulent biologicals" or "micro-organisms," the government argued.

All Federal Employees Could Be Eligible

In what was likely the first of these cases to be filed, just days into the pandemic, workers from the Bureau of Prisons, the U.S. Department of Agriculture and the U.S. Department of Veterans Affairs made the pay claims in a March 2020 proposed class action.

In Braswell v. United States, the workers are seeking to represent all federal employees who worked "with or in close proximity to objects, surfaces, and/or individuals infected with the novel coronavirus … without sufficient protective devices" and weren't given the extra pay.

Heidi R. Burakiewicz of Kalijarvi Chuzi Newman & Fitch PC, which represents the workers, estimated that the class could consist of tens of thousands of employees.

"My goal was to seek compensation for everybody who deserved hazard pay," Burakiewicz said. "We didn't want to leave anyone out."

The large potential class size shouldn't be a problem for them, Burakiewicz said.

"There's a common harm that all of the workers have," she said. "It was just as virulent to employees at one agency as it was to another agency."

A spokesperson for the American Federation of Government Employees, which helped bring the suit, said in a statement Thursday, "It remains AFGE's view that the statute is clear in providing hazard pay to federal employees who are exposed to COVID-19 in the course of their work."

A spokesperson for the Justice Department, which is representing the government in all the cases, did not respond to an interview request.

--Additional reporting by Kevin Stawicki and Craig Clough. Editing by Leah Bennett.