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Posted March 2022
Information for our members on Hazardous duty pay statutes:
While many employees at the VA are covered by the hazardous duty and environmental differential pay statutes, there are unfortunately several categories of VA employees who may not be covered by existing laws. If OPM has already taken into consideration that an employee will be exposed to virulent biologicals (or infectious diseases) when classifying a position description, then the employee is not entitled to hazard pay. Moreover, all Title 38 employees are excluded from Chapter 51 of Title 5.
We believe that hybrid employees who are not excluded from Chapter 51 through 5 U.S.C. § 5102(c)(3) may be covered by existing law and our case unless the hazard is taken into account in their position descriptions.
The statute and regulations that provide a 25% hazard pay differential for work performed with or in close proximity to “virulent biologicals” applies to federal employees who are covered by Chapter 51 and subchapter III of Chapter 53 of Title 5. This is specified in 5 U.S.C. § 5545(d). Unfortunately, many federal employees are excluded from Chapter 51 of Title 5 and thus are not covered by the hazard pay statute. 5 U.S.C. § 5102(c) provides a list of employees who are not covered by Chapter 51 of Title 5. This list includes physicians, dentists, nurses, and other employees in the Veterans Health Administration of the Department of Veterans Affairs whose pay is fixed under Chapter 73 of Title 38. See 5 U.S.C. § 5102(c)(3).
The statute that provides a 4 or 8% environmental differential for work performed with or in close proximity to hazardous micro-organisms applies to prevailing rate employees who are covered by 5 U.S.C. § 5343(c)(4). The employees covered by this statute are listed in 5 U.S.C. § 5342(a)(2). Unfortunately, this statute also does not appear to apply to Title 38 VA employees.