Labor & Employment Law Daily AFGE sues federal government for COVID-19 hazard pay
Thursday, April 2, 2020

AFGE sues federal government for COVID-19 hazard pay

By Wayne D. Garris Jr., J.D.

The public sector union teamed with a Washington, D.C., law firm to bring the class lawsuit on behalf of all federal employees who may have been exposed to COVID-19.

On March 30, the American Federation of Government Employees and the law firm Kalijarvi, Chuzi, Newman & Fitch announced a lawsuit against the federal government on behalf AFGE members and federal employees who were exposed to the coronavirus while performing their official duties. The union and the law firm filed a complaint in the Court of Federal Claims seeking 25 percent hazard pay and an 8 percent environmental differential.

Named plaintiffs. The named plaintiffs are employees of the Bureau of Prisons, Department of Agriculture, and Department of Veterans Affairs. Each of the named plaintiffs has alleged that since January 27, 2020, they have been in close proximity with an individual who is infected with COVID-19 or later tested positive for COVID-19. None of the named plaintiffs’ respective agencies provided personal protective equipment to protect the named plaintiffs from exposure.

Hazard pay. According to the plaintiffs, federal law entitles government employees to hazard pay when they perform work with or in close proximity to “virulent biologicals,” which are “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 protection.” The complaint asserts that COVID-19 is a “virulent biological” and that federal employees have had to work in in close proximity to surfaces, people, and objects infected with COVID-19 without receiving COVID-19 hazard pay as required by 5 U.S.C. Section 5545.

Environmental differential pay. The plaintiffs also claim that they are entitled to an 8 percent differential, pursuant to federal regulations, when employees perform work with or in close proximity to “micro-organisms which involves potential personal injury such as death, or temporary, partial, or complete loss of faculties, or ability to work due to acute, prolonged, or chronic disease” where “the use of safety devices and equipment, medical prophylactic procedures such as vaccines and antiserims and other safety measures do not exist or have been developed but have not practically eliminated the potential for such personal injury.”

Employees remain at risk. According to an AFGE press release, the federal prison where one of the named plaintiffs is employed had 9 inmates and 7 employees test positive for COVID-19. “Each day front-line federal employees willingly risk their health and their families’ health to provide critical services to the American people,” AFGE National President Everett Kelley said in a statement.”It is our hope that the government does right by these employees and pays them the hazardous duty pay they’ve earned.”

The lawsuit, Braswell v. The United States, No. 20-359C, was filed March 27, 2020, in the Court of Federal Claims.

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