The US Court of Appeals for the Federal Circuit Tuesday issued a 10-2 opinion affirming a lower court’s decision to dismiss claims for federal hazard pay based on exposure to COVID-19 made by a group of federal correctional officers from Connecticut. The court considered “whether [the employees’] theory of recovery satisfies one of [Office of Personnel Management’s] specifically delineated categories for hazardous duty or environmental differential pay” and ruled that it did not.
The correctional officers theory of recovery contended that, due to the impossibility of remote work for their positions, working in close proximity to COVID-19 was a requirement to continue their employment. The officers argue that this required proximity to people infected with COVID-19 falls under the Office of Personnel Management’s (OPM) definition of work “with or in close proximity to” hazardous conditions. In oral arguments, counsel for the correctional officers stated, “it is the circumstances and surroundings that make the duties hazardous, not necessarily the duty itself.” Citing the text of the relevant OPM regulations as well as prior opinions decided before the court, the court disagreed.
The court countered the main thrust of the correctional officers’ argument, declaring that to qualify as “working with or in close proximity to” a disease such as COVID-19, the actual duties of the job must involve direct or indirect contact with the disease. Incidental exposure is not enough. Therefore, federal employees who work in scientific labs and come into contact with COVID-19 through their job duties may qualify for hazard pay, but correctional officers incidentally exposed to the disease do not.
The court stated that the issue presented is not within its power to resolve. It explained:
Federal employees who do not fit into one of the HDP or EDP Schedules’ categories, but whose duties nonetheless expose them to particularly heightened risk associated with an infectious disease circulating within the general population, such as COVID-19, might understandably believe that they should receive additional compensation for such work during a pandemic. But that is a matter for Congress or OPM to address.