The short answer is no. The Fair Labor Standards Act (FLSA) does not address the subject of “hazard pay” for private employers.1 The once rarely used labor term that has been bandied about in recent weeks is defined as “additional pay for performing hazardous duty or work involving physical hardship,” according to the U.S. Department of Labor. Historically, there are a few professions where “hazard pay” is more common – military, medical, mining, and construction, for example.
While there is no legal requirement or tradition for “hazard pay” in most industries, amidst the COVID-19 pandemic, some employers are deciding to offer additional pay to workers that may be in harms way. A handful of companies have recently announced pay increases for its front-line workers as COVID-19 spreads throughout the U.S. — including Amazon, Albertsons, Kroger, Safeway and Whole Foods, which all announced $2 per hour pay raises for eligible employees. The City of Atlanta has also joined this group by providing the city’s public safety, sanitation and other workers $500 a month in hazard pay. Employees will also receive compensatory days.
President Trump has mentioned the idea of a possible “bonus pay” for those who have jobs that put them in additional risk. This could include in a “phase 4” relief package, if there is a phase four. Some Democrats in Congress have been much more specific proposing: up to a $25,000 pay increase for essential workers, and a one-time $15,000 incentive to help recruit new health care workers during the pandemic. The pay increase would equal a $13 per hour pay raise, that would be retroactive to the start of the crisis and authorized through Dec. 31, 2020. It would apply to workers earning less than $200,000 annually, but workers who make more than that would still be entitled to up to $5,000 in hazard pay. No Republicans have gone on record supporting such a sweeping pay increase.
Regardless of the government’s final decision on authorizing hazard pay increases, we are likely to see litigation around this issue increase. In a proposed class action filed Friday, March 27, 2020, Braswell v. The United States of America, 20-cv-359, in the U.S. Court of Federal Claims, the American Federation of Government Employees asked for a 25% hazardous-duty pay differential for each day federal workers are required to work near infected objects or people “without protective devices that afford complete protection.”
The five government workers at the forefront of the lawsuit say that they are employees of the federal government who have been working in close proximity to people or objects infected by COVID-19 since Jan. 27, 2020. The workers are employed in a range of government capacities but have all reportedly come into contact with COVID-19. Based on these risks, the government workers argue that they should be given hazard pay. These workers seek to represent not only themselves, but a Class of thousands of federal workers who face similar exposure.
Employers need to be prepared, there are solicitations such as this popping up everywhere.–“Join a Free Coronavirus Class Action Lawsuit Investigation. If you believe your rights were violated in a way that is directly related to the coronavirus pandemic, you may qualify to join this coronavirus class action lawsuit investigation.”
Contact ELS for information on our COVID-19 Compliance advice and counsel.
Resources:
https://www.law360.com/articles/1258327/fed-workers-union-demands-hazard-pay-for-virus-exposure
https://www.law360.com/articles/1258367/amazon-instacart-workers-strike-over-covid-19-conditions
Brenda Braswell, et al. v. The United States of America, Case No. 1:20-cv-00359-VJW, in the U.S. Court of Federal Claims
