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DOJ Tells Fed. Circ. No COVID Hazard Pay For Prison Workers

By Max Kutner · Jun 18, 2021, 8:17 PM EDT

Federal Bureau of Prisons employees aren't entitled to hazard pay under two programs for health risks they said they endured while working in proximity to the coronavirus that causes COVID-19, the government told the Federal Circuit, urging the court not to revive a suit by nearly 200 Connecticut prison workers.

In its response brief Thursday, the U.S. Department of Justice said the Federal Circuit should uphold a lower court ruling that dismissed the suit for failure to state a claim. It argued that the lower court properly held that the federal hazardous duty and environmental differential pay programs didn't apply to COVID-19.

"Although the COVID-19 pandemic has presented many challenges for workers, the hazardous duty and environmental differential pay regulations do not currently provide for additional compensation under these circumstances," the DOJ, of which the BOP is a part, said in the brief.

Federal employees performing at least one of 57 duties can qualify for the hazardous duty pay program, according to the government's brief. Those tasks include "work with or in close proximity to" "virulent biologicals," the brief said.

And employees are eligible for the environmental differential pay program when working in 35 categories of duty, including working "with or in close proximity to" "micro-organisms" when safety precautions "have not practically eliminated the potential for personal injury," according to the brief.

The risk to the employees from exposure to COVID-19 did not fit either of those programs, the government argued.

In dismissing the claims by more than 180 current or former employees at Federal Correctional Institution Danbury, in Danbury, Connecticut, the lower court in February correctly followed the precedent from Adair v. United States, the government argued.

In Adair, the Federal Circuit held in 2007 that correctional officers didn't qualify for environmental differential pay for working around cigarette smoke because the program applied to working around toxic chemicals, not working around people emitting toxic chemicals, according to the government's brief.

The same reasoning applies in the present case, the government argued.

"Because the regulations only apply to 'work with or in close proximity to' 'virulent biologicals' or 'micro-organisms' themselves — such as in biological experimentation and production — the trial court correctly held that plaintiffs failed to state a claim based on their alleged workplace exposure to COVID-19," the brief said.

The government added, "Mandating hazardous duty and environmental differential pay for simply reporting to the workplace during the pandemic's duration would impose extraordinary administrative and financial burdens on the United States beyond anything Congress intended under the current statutory framework."

The employees argued in their opening brief in April that the trial court had erred by following Adair because of the differences between cigarette spoke, which was the focus of the earlier case, and COVID-19.

"COVID-19 is not an omnipresent byproduct of recreational activity that has been prevalent since long before the enactment of the HDP and EDP statutes," the employees argued. "It is a new, contagious and deadly disease that has caused a devastating global pandemic, killed more than half a million people in the United States, and disrupted almost every facet of society."

The lower court instead should have followed its December 2020 holding in Charles Adams et al. v. USA, the employees said. In that ruling, the court allowed corrections officers' hazardous duty and environmental differential pay claims to proceed.

The dispute stems from the lawsuit that the corrections officers and other employees filed in June 2020 seeking pay bumps due to COVID-19. They also alleged overtime violations of the Fair Labor Standards Act.

In February, the Court of Federal Claims granted the government's motion to dismiss. The overtime claim depended on the hazardous duty and environmental differential pay claims, the judge said, so it did not survive either.

The case is part of a flood of lawsuits by federal employees seeking extra pay due to COVID-19. Thursday's brief said there are currently 21 such suits, involving more than 2,900 employees and 17 federal agencies.

Counsel for the prison employees did not immediately respond to a request for comment.

Spokespeople for the Bureau of Prisons and the Justice Department also did not immediately respond.

The prison employees are represented by Molly A. Elkin, Reid Coploff and Gregory K. McGillivary of McGillivary Steele Elkin LLP.

The government is represented by Eric Laufgraben, Adam Garret Eisenstein, Douglas Seth Goldring, Catharine Parnell and Liridona Sinani of the U.S. Department of Justice.

The case is Adams v. U.S., case number 21-1662, in the U.S. Court of Appeals for the Federal Circuit.

--Editing by Abbie Sarfo.

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