Not sure why the union chose to take this case to the generally anti-employee Federal Circuit Court rather than to arbitration. Afterall, arbitrators have ordered EDP and the FLRA has upheld those orders. But the Federal Circuit just slammed, nailed, and super glued the door shut on hopes of tens of thousands of feds who had to face inordinate exposure to COVID during its pre-vax days.

You can find the complete decision here. But here is a quick overview of why 10 of the 12 judges on the court did this.

  1. The Court did not believe that the COVID pathogens qualified as a “virulent biologicals” or “micro-organisms” which an exposure must involve under the regulations allowing EDP.
  2. Even if they did, the court held the COVID virus had to be in containers such as flasks, culture test tubes, hypodermic syringes and similar instruments, and biopsy and autopsy material to qualify for EDP. Because prisoners, airport travelers, and walk-in claimants are not containers, no EDP or its wage grade counterpart Hazardous Duty Pay.
  3. Exposure to germs carried by prisoners, airport travelers, and claimants was not an unusual thing for those feds so exposed.

Two judges wrote a well-reasoned dissent.  Nonetheless, it appears that hopes for retroactive EDP by those feds who were not allowed to work from home to avoid the threat of a COVID death have been thoroughly dashed.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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