Should federal employees get hazard pay during the pandemic?

For more on what hazardous pay is all about and a little history, Federal Drive with Tom Temin turned to Federal Practice Group partner Ricardo J. A. Pitts-Wi...

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Now that the largest federal employee union has sued the government for hazardous duty pay, the question arises: How many employees, outside those named in the suit, might be eligible governmentwide? For more on what hazardous pay is all about and a little history, Federal Drive with Tom Temin turned to Federal Practice Group partner Ricardo J. A. Pitts-Wiley.

Interview transcript:

Tom Temin: Mr. Wiley, good to have you on.

Ricardo J.A. Pitts-Wiley: Good morning Tom.

Tom Temin: Tell us about hazardous duty pay. This is something that didn’t just arise because of coronavirus. This is a longstanding principle. Tell us more about it.

Ricardo J.A. Pitts-Wiley: Well, hazardous duty pay, or environmental differential pay, is pay that is additional for performance of hazardous duties or duties involving physical hardship. And the types of employees that would typically receive this type of pay would be general schedule employees as well as prevailing rate or wage grade employees who do not already have hazardous conditions considered in their job classification.

Tom Temin: And hazardous … hazards – what are the hazards? I mean, would it be, for example, Border Patrol agents? People like that, also?

Ricardo J.A. Pitts-Wiley: Well law enforcement officers tend to have hazardous conditions included in their job classifications and so law enforcement officers, by and large are not typically entitled to hazardous duty pay. They have other types of differential or premium pay to account for the nature of their position. But really, what we’re talking about in terms of hazardous conditions we’re talking about, you know, really rough weather, rough travel conditions, exposure to hazardous agents, whether they be man-made or naturally occurring. It can also include things like physiological hazards, like working at extremely high or low altitude, doing research underwater or out in space engaging and flight simulation – those types of hazards.

Tom Temin: So is hazardous duty pay a permanent condition, or something that is only in place while the hazard is in place? For example, if you’re doing underwater research and it lasts three days and the rest of the time you’re sitting in an office, would you just get hazardous duty pay for those three days?

Ricardo J.A. Pitts-Wiley: You would just get a hazardous duty pay for those three days. That’s correct. Something to keep in mind is if an employee is working eight hours in a day and only one hour of that day is dedicated to hazardous duty, that employee will nonetheless be eligible or should be eligible for a hazardous duty differential or environmental differential for the entire eight hours that they worked. So at any portion of the day that they have engaged in hazardous duties,then they get the differential associated with that for the entire workday.

Tom Temin: And is there standard percentage of differential pay for those periods under hazardous duty?

Ricardo J.A. Pitts-Wiley: Well the Office of Personnel Management has developed a schedule for both General Schedule employees as well as wage grade or prevailing rate employees, which specifically identifies certain types of duties that are eligible for hazardous duty pay. And there are percentages that are attached to particular types of duties. So this is something that’s laid out in regulation, and the agencies – individual agencies have the responsibility of determining which of their employees are entitled to hazardous duty pay.

Tom Temin: We’re speaking with Ricardo Pitts-Wiley. He’s a partner at the Federal Practice Group. So is it incumbent upon management then to designate that this person is receiving this pay and take care of it with HR, or is it incumbent upon the employees to say, “Hey, wait, this is hazardous. You gotta give me more pay here”?

Ricardo J.A. Pitts-Wiley: Well, I would I would say that it’s It’s actually both. So as an employee I would encourage an employee if they believe that they are engaging in hazardous duties, to request hazardous duty pay. It is incumbent then upon a manager to consult with human resources and to determine whether or not that employee is actually entitled to hazardous duty pay. The determination about hazardous duty pay rests with the agency and not with any other entity.

Tom Temin: Got it. So that would mitigate, then, in favor of really super clear guidelines, so there’s no mistake about it, because you mentioned travel, for example. Travel to London might be different from travel to Kazakhstan or something, it could get pretty fine grained as to what is hazardous duty and what it’s just normal travel.

Ricardo J.A. Pitts-Wiley: And that’s, that’s actually the thinking behind, you know, entrusting the agencies to make these determinations. It’s believed that the agency has the best idea and understanding off what they’re asking their employees to do and what their employee has actually been exposed to. Now there are times where the agency doesn’t get it right, and then the employees would need to take some course of action to address that matter.

Tom Temin: And what might those course of actions be?

Ricardo J.A. Pitts-Wiley: You know, one of those courses of actions may be actually filing a lawsuit. And there’s actually a lawsuit out right now that’s been filed in conjunction with the union AFGE. But it is filed a class action. So I believe that there’s going to be many more employees who add on as plaintiffs for this particular matter.

Tom Temin: Have you seen this kind of thing in the past? I mean, this, is the coronavirus, in your view, and, you know – having a pretty large practice dealing with federal employees – are these types of requests or determinations on the rise right now? Even with everyone going home and teleworking?

Ricardo J.A. Pitts-Wiley: Well, I think there’s still going to be – well, let’s provide just a little bit of historical context. So hazardous duty pay, as well as environmental differential pay, you know, they’ve been around since at least the late 1960s. And they did include such things as biological or microorganisms, as being a hazard in the workplace. And, you know, these hazardous duty pay authorities have been used for other types of, other types of hazards, you know, like avian bird flu, anthrax, Ebola. So this is, you know this is not a new application. What I think is going to be different about what’s going on now is that COVID-19 is expected to have such a significant impact that even though a large portion of the federal workforce may be teleworking, there’s still going to be such a high rate of exposure to COVID-19 that those employees who are required to go into the workplace, I think it’s going to increase their hazardous conditions and thus there’s going to be much more of an outcry for people to receive this differential pay.

Tom Temin: And this could have a long tail. Suppose the major part of the pandemic is over in a couple of months or three months or whenever, and the public goes back to more or less normal, and they will then be exposed in the same manner as if they had been exposed during the height of it. But yet you really can’t tell whether it’s completely gone or not, so it would be difficult maybe to determine whether it is now hazardous at that point in the future.

Ricardo J.A. Pitts-Wiley: Well, I think we can consider COVID-19 to always be hazardous until there’s a vaccine for it. However, federal government agencies can take steps to essentially obviate the need for hazardous duty pay. And they can do that by providing safety precautions that reduced the hazard to a significantly low level of risk. In other words, if employees are equipped properly, if they have the correct and adequate protective gear and devices, then there is no longer a need for hazardous duty pay because the risk of exposure, the risk of infection, has been greatly reduced. So I’m hoping that the federal government agencies will properly equip all of their essential employees to minimize the risk of exposure to an infection from COVID-19.

Tom Temin: Ricardo Pitts-Wiley is a partner at the Federal Practice Group. Thanks so much for joining me.

Ricardo J.A. Pitts-Wiley: It’s been my pleasure, Tom. Thank you very much.

Tom Temin: We’ll post this interview at Hear the Federal Drive on demand. Subscribe at Apple Podcasts or Podcastone.

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