THE NEXT STEPS FOR COVID-TRIGGERED EDP/HDP
We have no idea what is going on in the conference rooms of the lawyers who just lost the case that denies most feds the right to extra compensation based on prolonged exposure to COVID pathogens. They are probably wondering if there is any chance to get the Supreme Court to reconsider and overturn the recent Federal Circuit decision. Generally, when 10 judges out of 12 vote against you and no other circuit court disagrees with that decision there is little to no chance the Supremes will take the case. However, no matter how small the chances of overturning this adverse decision, there still is a chance by going somewhere other than the Federal Circuit Court. For example, …
…why does not some union submit a bargaining proposal that carefully threads its way in, through, and around the government-wide regulations on the issue and which has the effect of requiring extra compensation when a limited number of feds are exposed to a potentially lethal hazard. The agency would likely declare it non-negotiable based on the Federal Circuit decision and that would open the opportunity to file a negotiability appeal with FLRA and thereafter a circuit court other than the Federal Circuit. That would get the unions another review of the law by a different set of judges based on a finely designed bargaining proposal rather than a broad general claim as the Federal Circuit examined.
Although some might think that COVID is over and hence there is no need to fixate on this any longer, they would be wrong. It is beyond doubt that other potentially deadly pathogens are coming our way in the future. While the government has shown a willingness to suspend for its workforce most face-to-face interactions and to let most employees work from home to minimize transmission, what about those forced to continue to interact with the public? I am thinking here about Border Patrol Agents, Corrections Officers, Customs and Border Protection Officers, Food Safety Inspectors, etc. Giving them a few extra dollars an hour for the duration of the exposure crisis is hardly a protection against deadly exposure, but it does demonstrate the public’s appreciation for the risks they are being forced to take. Or to put it more bluntly, do we really want to do nothing for these feds who are required to expose themselves (and in turn their families) potentially to death at a time when the government recognizes that the risk is so high that all other face-to-face government operations should cease?
Coincidentally these are the same feds who are forced to continue to work during government shutdowns without any extra compensation than their fellow feds ultimately get sitting home not working during the shutdown. Marburg virus, Ebola, Hantavirus or some future COVID mutation could arrive on our shores tomorrow creating an environmental hazard far more dangerous than the Federal Circuit’s focus on something in a non-human container. It is time OPM took its head out of the sand and fixed this insult to the so-called “essential” federal employees forced to work no matter what the exposure. Another more sculpted run at the circuit courts is justified.