Workers File Class Action Lawsuit for COVID-19 Hazard Pay
In a complaint filed in the United States Court of Federal Claims, five federal employees, on behalf of themselves and all others similarly situated, alleged that they performed work “with or in close proximity to objects, surfaces, and/or individuals infected with the novel coronavirus (“COVID-19”).” On March 27, 2020, in their complaint, the employees alleged they were entitled to, but did not receive, hazardous duty pay differential for exposure to virulent biologicals set forth in federal regulations.
The individuals are employed at a variety of federal agencies. One plaintiff is a Consumer Safety Inspector at FSIS. Three plaintiffs are from the Bureau of Prisons, employed as a maintenance worker foreman, a food service foreman, and a Senior Officer Specialist. The final plaintiff is a Diagnostic Radiology Technologist at the VA.
Citing government data and information regarding the spread and seriousness of the novel coronavirus, the complaint detailed ways in which each plaintiff performed work that exposed them to people or objects that were or could be contaminated with COVID-19. The VA Diagnostic Radiology Technologist alleged that he even performed a procedure on a patient infected with the coronavirus.
The complaint alleged that exposure to this disease was not taken into account when classifying the employees’ positions, and that the exposure entitles them to hazardous pay differentials set forth in Appendix A to subpart I of Part 550 of Title 5, Code of Federal Regulations. The regulations, at 5 C.F.R. § Pt. 550, Subpt. I, App. A provide hazard pay when employees perform work with or in close proximity to “virulent biologicals,” defined as “materials of micro-organic nature which when introduced into the body are likely to cause serious disease or fatality and for which protective devices do not afford complete production.”
The complaint argues that the hazard pay salary differential for working with or in close proximity to COVID-19 should be 25%, the top such differential and a reflection of the novel coronavirus’ serious nature.
The class action was brought on behalf of a class described as follows: “All federal employees who from January 27, 2020, through the present and continuing and ongoing performed work with or in close proximity to objects, surfaces, and/or individuals infected with the novel coronavirus (“COVID-19”) without sufficient protective devices and were not paid the hazardous duty pay differential for exposure to virulent biologicals set forth in Appendix A to subpart I of Part 550 of Title 5, Code of Federal Regulations, or the environmental differential for exposure to hazardous micro-organisms set forth in Appendix A to subpart E of Part 532 of Title 5, Code of Federal Regulations.”
According to the complaint, class certification is appropriate because the government “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
Read the full complaint: Braswell v. United States.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.