HOW HAZARDOUS DUTY PAY CASES ARE WON

FLRA issued a decision in the middle of 2021 that put a bright light on how these cases are won and lost. Given how hostile the current FLRA members—or at least two of them—are to employee rights, AFGE deserves a lot of credit for surviving the Authority’s majority predisposition to overturn every employee arbitration win.  The case involved housekeeping staff at a VA hospital who the arbitrator found were entitled to environmental-differential pay (EDP) because they worked in close proximity to high-hazard microorganisms. These were not just COVID organisms. He built his bulletproof decision on the following findings, which are going to be critical issues in any hazardous duty case:

• While the housekeepers’ position descriptions stated that that “[e]xposure to contagious disease is possible,” the arbitrator found that inconsistent with the witness testimony, i.e., that it was at least probable—and possibly higher. Therefore, this hazard was not something the employees were already being paid for.
• Although the housekeepers have sufficient training to understand their duties and to execute them safely, he concluded that “the use of safety devices and equipment such as [personal protective equipment (PPE)] and training have not practically eliminated the potential for . . . personal injury” from job hazards.  The Arbitrator found that, among other things, the effectiveness of the PPE is “nonexistent against needle sticks” and “almost nonexistent” against pathogens such as blood, wet feces, and urine.

Based on the above, the Arbitrator concluded that the Agency violated the CBA and the CFR by failing to pay the housekeepers EDP.  He granted EDP at the high exposure rate of eight percent.  AFGE won a similar case two years earlier and has taken a very active position on fighting for hazardous duty pay due to COVID hazards. We suspect the toughest issues to decide in COVID-only exposure cases will be whether the agency not only issued employees masks, but also took steps to socially distance employees from one another and the public. If it did, differentials are not likely.

Another sticky issue in these cases is how far back does a back pay order go. Should it start from the day the hazard was reasonably noticeable by the agency or no more than 15 to 30 days before the grievance was filed?

Check out the two AFGE victories at 72 FLRA 441 (2021) and 71 FLRA No. 38 (2019).