On its way out the door, the Trump administration filed a motion to dismiss AFGE’s lawsuit seeking hazard pay for federal workers who have been required to risk their health and safety by working in hazardous conditions in order to continue to perform the essential functions of the government during the COVID-19 pandemic.
Our union earlier this month opposed that motion, urging the court to deny the government’s request to dismiss the case.
“The coronavirus pandemic made thousands of jobs more dangerous than they normally would be. Recognizing that federal employees are at times exposed to dangerous conditions their jobs do not normally entail, Congress provided for hazardous duty pay and/or environmental differential pay,” AFGE argued in opposition to the motion to dismiss. “As a result of these hazardous conditions and the Government’s failure to account for these conditions in Plaintiffs’ position classifications, Plaintiffs are entitled to hazardous duty pay, environmental differential pay, and additional overtime wages to compensate for their repeated and ongoing exposure to COVID-19.”
AFGE and Kalijarvi, Chuzi, Newman & Fitch (KCNF DC) filed our lawsuit last March against the federal government on behalf of AFGE members and federal employees who were exposed to the coronavirus while performing their official duties.
Our lawsuit seeks a 25% hazard pay differential for General Schedule employees, who are entitled to the additional pay under Title 5 because they were exposed to hazardous working conditions through the performance of their assigned duties and the hazardous duty had not been taken into account in the classification of their positions. We allege that a “virulent biological” like the coronavirus would clearly qualify as a hazard under Title 5.
Similarly, Wage Grade (WG) plaintiffs are entitled to an 8% environmental pay increase for exposure to micro-organisms. The difference between GS and WG pay differentials in our lawsuit is due to the different entitlements these employees have under the law.
In the opposition to the motion to dismiss, we argued that the government based its argument on the now-defunct federal personnel manual which provided that hazard pay is only available to employees who handle virulent biologicals. The government also admitted that the examples in the manuals are not exhaustive. As such, the government’s argument that employees must allege that they touched containers containing COVID-19 in order to get hazard pay is misguided.
Since the complaint was filed, hundreds of federal employees have died and tens of thousands more have been sickened by COVID-19. Many more are suffering because they are being forced to work in unsafe environments. It is our hope that the government pays these employees the hazardous duty pay they’ve earned.
“We continue to believe that the government owes the federal employees covered by the statutes hazardous duty and environmental differential pay for continuing to go to work despite their exposure to COVID-19,” said Heidi Burakiewicz, partner at KCNF DC. “These employees are risking their health and their families’ health each day they go into work under these circumstances. Without these employees, the rest of the country couldn’t function, and we are committing to fighting to get this well-deserved compensation for them.”