The suit was brought by a group of Bureau of Prisons employees and a decision in their favor could have had wider implications for other settings. Dissenting judges said OPM left open the door to higher pay. Image: Robert V Schwemmer/Shutterstock.com
By: FEDweek StaffA federal appeals court has rejected a suit seeking awards of pay differentials for potential exposure to the Coronavirus in federal workplaces, saying that while they “might understandably believe that they should receive additional compensation for such work during a pandemic,” law and OPM rules don’t provide for it.
The Federal Circuit Court of Appeals in case No. 2021-1662 said that applies both to “hazardous duty pay” for GS employees and the counterpart “environmental differential pay” for wage grade employees. Those authorities provide pay add-ons of up to 25 percent for working amid dozens of hardships or hazards beyond an employee’s regular duties identified in OPM rules.
While the suit was brought by a group of Bureau of Prisons employees, a decision in their favor could have had wider implications for other settings with a risk of exposure. The federal claims court, though, rejected the suit on grounds that the closest possible qualifying category—work with or in close proximity to micro-organisms—did not apply.
The full appeals court, in a 12-2 decision, agreed. It said that both sides agreed that OPM rules govern eligibility and that under those rules, that category applies only to working directly or indirectly with containers of pathogenic organisms and to cultivating such organisms for research purposes.
Nor does a category for airborne hazards apply, it said, since that deals only with potential exposure to asbestos fibers.
“We conclude that OPM simply has not addressed contagious-disease transmission (e.g., human-to-human, or through human-contaminated intermediary objects or surfaces) outside two settings not present here—e.g., certain situations within laboratories and a jungle-work situation. Although OPM might well be able to provide for differential pay based on COVID-19 in various workplace settings, it has not to date adopted regulations that do so,” the decision said.
The dissenting judges, though, said that OPM had left the door open to paying the differentials in a memo it issued in early 2020 just after the virus outbreak, and that during arguments on the case, a government attorney similarly had said there could be situations where person-to-person spread of a disease could create eligibility.
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