While we hope that you are able to stay healthy and safe during this time, we would also like to keep you informed about certain pay you may be entitled to receive due to the COVID-19 Pandemic. Specifically, Federal Executive Agency employees should be aware of two types of pay for which they currently may be eligible: evacuation pay and hazardous duty pay. If you have any questions or concerns about this issue, please do not hesitate to contact us. Learn more about these kinds of pay by continuing to read below.
1. Evacuation Pay
In short, evacuation payments during a pandemic health crisis are another way of saying that the Government is required to continue paying employees based on their regularly scheduled hours and pay, regardless of whether an employee is able to work. As explained below, this means federal employees are entitled to continue to receive their pay for their regularly scheduled hours..
Because we are in the midst of a pandemic health crisis, the federal government is authorized to require employees to work from their home, or another mutually agreeable alternative location, regardless of whether those employees are subject to a telework agreement. See 5 C.F.R. § 550.409(a). Further, “[a]n evacuated employee at a safe haven may be assigned to perform any work considered necessary or required to be performed during the period of evacuation without regard to his or her grade, level, or title. The employee must have the necessary knowledge and skills to perform the assigned work. Failure or refusal to perform assigned work may be a basis for terminating evacuation payments, as well as disciplinary action.” Id.
During a pandemic health crisis, the federal government can “designate the employee’s home (or an alternative location mutually agreeable to the agency and the employee) as a safe haven and provide evacuation payments to the employee.” 5 C.F.R. § 550.409(a) (emphasis supplied). See also 5 U.S.C. § 5523. Evacuation payments during a pandemic health crisis require the government to continue paying employees based on their regularly scheduled hours and pay, regardless of whether an employee is able to work. See, e.g., Office of Personnel Management, “Fact Sheet: Evacuation Payments During a Pandemic Health Crisis” (last accessed Mar. 16, 2020), available at https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/evacuation-payments-during-a-pandemic-health-crisis/.Thus, ensures that employees continue to be compensated at their regular rate of pay for all regularly scheduled hours even if they are unable to report to their regular duty station or are unable to work.
Specifically, the regulations provide that “[e]vacuation payments shall cover the period of time during which the order to evacuate remains in effect, unless terminated earlier, but shall not exceed 180 days. When feasible, evacuation payments shall be paid on the employee’s regular pay days.” 5 C.F.R. § 550.404(b)(2). An “order to evacuate” is defined as an oral or written order to evacuate an employee from an assigned area and includes an order for an employee to evacuate from a work site and perform work from their home during a pandemic health crisis. 5 C.F.R. §§ 550.402, 550.409(a). As set forth in the regulations:
Payments shall be based on the rate of pay (including allowances, differentials, or other authorized payments) to which the employee was entitled immediately before the issuance of the order of evacuation. All deductions authorized by law, such as retirement or social security deductions, authorized allotments, Federal withholding taxes, and others, when applicable, shall be made before advance payments or evacuation payments are made.
5 C.F.R. § 550.404(a). For full-time and part-time employees, “the amount of . . . or an evacuation payment shall be computed on the basis of the number of regularly scheduled workdays for the time period covered.” 5 C.F.R. § 550.404(d)(1).
In addition, Agency heads “may grant special allowance payments, based upon a case-by-case analysis, to offset the direct added expenses incidental to performing work from home (or an alternative location mutually agreeable to the agency and employee) during a pandemic health crisis.” 5 C.F.R. § 550.409(b). OPM has suggested that the following special allowance payments are the types that may be authorized by an Agency head on a case-by-case basis during a pandemic health crisis: increased costs for a computer, printer, fax machine, scanner, and telecommunications equipment and long-distance calls, supplies, or delivery services, if such expenditures primarily benefit the federal government. See Office of Personnel Management, “Fact Sheet: Evacuation Payments During a Pandemic Health Crisis.” OPM has not yet provided guidance on to whom requests for special allowance payments should be made.
2. Hazardous Duty Pay
Federal employees may also be eligible for hazardous duty pay for exposure to “virulent biologics.” See 5 U.S.C. § 5545(d); 5 C.F.R. Part 550, Subpart I. Specifically, hazardous duty pay differentials are authorized for exposure to “materials of micro-organic nature which when introduced into the body are likely to cause serious disease or fatality and for which protective devices do not afford complete protection.” 5 C.F.R. Appx. A to Subpart I of Part 550. An employee who “work[s] with or in close proximity to” such “virulent biologicals” is eligible for a hazardous duty differential provided that exposure to virulent biologicals was not taken into account in the classification of the employee’s position. Id.
In general, hazardous duty pay is required when: “(1) the actual circumstances of the specific hazard or physical hardship have changed from that taken into account and described in the position description (i.e., exposure to the hazard was not taken into the classification of the position). 5 C.F.R. § 550.904(b). When exposure to a hazard is taken into account in the classification of a position the classifier will assign points either to the fact of exposure or the employee’s ability to mitigate the harm of exposure as a result of the employee’s training and skills. For example, a helicopter pilot will not receive hazard pay for being exposed to helicopter flights. Further, hazardous duty pay is not authorized where “[p]rotective or mechanical devices have adequately alleviated physical discomfort or stress.” 5 C.F.R. § 550.906(c).
Employees who (1) do not telework, (2 are not required to be exposed to medical hazards or infectious diseases as part of their job such that it is mentioned in their position description as part of their job, and (3) have not been provided with adequate protective devices or equipment so as to eliminate the risk will likely be eligible for a 25% hazardous duty differential as a result of COVID-19 for each day that they are exposed to COVID-19 during the performance of their regular job duties.
If you have any questions or concerns about the issues discussed in this memo, or any labor and employment law issue related to the ongoing pandemic, please do not hesitate to contact us.