Hazard Pay Update

RE: Grievance and Litigation Seeking Hazard Pay for COVID Exposure SUMMARY: While NTEU’s grievance seeking hazard pay for COVID exposure is pending, employees may also opt into litigation seeking hazard pay.

Federal employees may opt into a lawsuit seeking hazard pay for COVID exposure while on the job at https://www.hazardpaylawsuit.com/. As the website explains, employees may opt in if (1) they were exposed to COVID-19 during the performance of their official duties; (2) their position is eligible for hazardous duty and/or environmental differential pay; (3) their position description does not take into account exposure to infectious diseases like COVID-19; and (4) they have not already been paid hazardous duty and/or environmental differential pay for their working time in which they were exposed to COVID-19. If you meet these qualifications, we encourage you to opt in promptly. There is no cost to opt in. Only employees who opt in will recover in this lawsuit if the plaintiffs eventually prevail. As background, several law firms filed suit seeking hazard pay for COVID exposure in the U.S. Court of Federal Claims in the spring of 2020. One of those lawsuits has been dismissed and has been appealed to a federal appellate court. Proceedings in all the Court of Federal Claims lawsuits are stayed (except for the opt-in process) while we wait for the appellate court to rule. The appellate court ruling will determine whether this lawsuit can proceed. While not entirely clear, if the lawsuit succeeds, the court might only allow hazard pay for overtime worked for the two years prior to the date of the opt in. Employees who meet the qualifications to join the lawsuit, therefore, are encouraged to do so promptly to maximize their recovery period.

As you know, NTEU has also filed a grievance seeking hazard pay for CBP Officers’ and specialists’ exposure to COVID during the performance of their duties. (See National Issues Update, Dec. 23, 2021.) The hearing was held on that grievance in September 2021, and we are awaiting the arbitrator’s decision.

If both the grievance and litigation succeed, employees will not be allowed to recover twice, but it would be prudent to opt into the lawsuit while we await the outcome of the grievance. We will keep you apprised of the progress of this case and the related case in the appellate court.

Anthony M. Reardon National President