Federal workers not entitled to COVID hazard pay -U.S. appeals court

[February 15, 2023]  By Jonathan Stempel

(Reuters) - A divided U.S. appeals court on Tuesday said federal workers are generally not entitled to extra pay for being exposed to COVID-19 through their jobs.

In a 10-2 decision with potentially "far-reaching" ramifications, the U.S. Federal Circuit Court of Appeals ruled against 188 current and former correctional employees at a federal prison in Danbury, Connecticut.

The employees said they deserved hazardous duty and environmental differential pay because they worked with or in close proximity to people, objects and surfaces infected with COVID-19, and were not wearing sufficient protective gear.

But the appeals court said the government's Office of Personnel Management, the human resources agency for more than 2.1 million federal workers, had no regulations affording extra pay for exposure in most settings to contagious diseases.

It said exceptions covered some laboratories and tropical jungles, and that it was up to Congress or the agency to add categories.

"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," Circuit Judge Raymond Chen wrote.

"We conclude that OPM simply has not addressed contagious-disease transmission (e.g., human-to-human, or through human-contaminated intermediary objects or surfaces)" in most settings, he added. "That is not to say that such differential pay may not be warranted."

Emergency room doctor Jim Keany treats patient a in the Emergency room at Providence Mission Hospital in Mission Viejo, California, U.S., January 27, 2022. REUTERS/Shannon Stapleton

Circuit Judge Jimmie Reyna dissented, saying the prison employees plausibly alleged they deserved extra pay for exposure to "unusually" hazardous conditions.

"The COVID-19 pandemic adversely affected our workplaces, schools, airlines, hotels, meat-packing houses, and hospitals," Reyna wrote. "Even courthouses were momentarily shuttered on the premise that COVID-19 was in the streets roaring like a lion. We cannot shake off those experiences like dust from a rug."

Molly Elkin, a lawyer for the plaintiffs, said in an email: "Sadly, the majority was motivated by fear of the floodgates.... We are exploring all options available to get our brave correctional officers the hazard pay they deserve for working in a crowded prison - a Petri dish for COVID-19."

OPM did not immediately respond to requests for comment.

Tuesday's decision upheld a February 2021 ruling by a federal Court of Claims judge.

The decision is Adams et al v U.S., U.S. Federal Circuit Court of Appeals, No. 2021-1662.

(Reporting by Jonathan Stempel in New York; Editing by Marguerita Choy)

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