NOTICE TO MEMBERS

The hazardous duty pay case on behalf of border patrol agents, Abad v. U.S., has been stayed pending the outcome of a case in the U.S. Court of Appeals for the Federal Circuit, Adams v. U.S. The Adams case is on behalf of correctional officers and was heard before the full court of all twelve appellate judges.

Unfortunately, the court held in Adams that OPM’s hazardous duty pay regulations do not cover exposure to infectious disease, regardless of whether the infectious disease is life-threatening such as COVID-19. The Court suggested in its decision that the employees go to OPM to see if OPM will amend their regulations to cover diseases and to define what degree of exposure would qualify for hazardous duty pay.

At the outset of the opinion in Adams, the court voiced its concern about the multiplicity of lawsuits involving employees with only tangential exposure to COVID. It was concerned that a favorable decision might open the floodgates of federal employees seeking compensation under the hazardous duty statute. This “results oriented” concern is one reason that the court’s reasoning in the opinion is so weak.

In ruling against the correctional officers, the Court adopted a “scientists’ rule” in which the only employees who would be eligible under OPM’s hazardous duty pay regulations for exposure to virulent biologicals are scientists and lab technicians who handle virulent biologicals in test tubes. Interestingly, the Government itself had abandoned this test in the Court of Appeals. It abandoned this test because it is illogical. It is a defense to hazardous duty pay if exposure to the hazard is taken into account in the classification of the position. Obviously, a scientist who handles virulent biologicals as part of their job would have exposure to virulent biologicals taken into account in the classification of their position. This is why the Government abandoned this argument. It is nonsensical. Indeed, in abandoning this argument, the Government itself acknowledged in its briefs and at oral argument that the hazardous duty pay regulations apply to infectious diseases and, further, that humans can be containers of “virulent biologicals” when infected with a deadly disease and the human is contagious.

Two judges dissented from the opinion. In the dissent, the judges explained that the employees at issue in the Adams case were precisely the type of employees for whom the hazardous duty pay statute was meant to address. Correctional officers who worked with inmates infected with COVID were working in unusual circumstances that were especially hazardous, as part of their job. Moreover, the correctional officers had the ability, unlike most federal employees, to prove exposure to specific individuals infected by COVID. The dissenting judges argued that such employees should receive hazardous duty pay under the statute, regardless of what the regulations said.

The Adams decision is being appealed to the United States Supreme Court. The Abad case will be stayed during the pendency of the appeal. In addition, efforts are being made to have OPM follow the court’s suggestion and issue a regulation, to be retroactively applied, that encompasses exposure to COVID.

Apparently, some people out in the grapevine have questioned the decision to pursue these statutory claims in court and suggested that they should have been pursued in grievances instead. This was impractical for several reasons. First, at the time that the COVID hazardous duty pay lawsuits were filed, the only place to which arbitration decisions can be appealed – the Federal Labor Relations Authority – was notoriously anti-worker/anti-union and it had routinely reversed arbitration decisions involving pay awards in favor of employees. Second, immediately after COVID began infecting Americans across the nation, the AFGE national office filed a case in the Court of Federal Claims on behalf of tens of thousands of federal employees, regardless of their job duties. Indeed, the court in Adams cited this case as an example of the broad-based claims being filed. Further, some grievances were filed and they were stayed pending the outcome of the cases in the Court of Federal Claims. Thus, regardless of whether one filed an arbitration, a win at arbitration could be taken away by the FLRA, and a case would have been pending in the Court of Federal Claims in any event.

Please contact the law firm of McGillivary Steele Elkin LLP if you are a plaintiff in Abad and you have any questions.