By Chantal N Guerriero, Esq. and Ty Hyderally, Esq.

On May 1, 2020, the “Hazardous Duty Pay for Frontline Federal Workers Act” (the “Act”) was introduced by Congressman Donald Payne Jr. of New Jersey. The Act would specifically require additional pay to certain federal workers who are or have been exposed to COVID-19 from March 15, 2020 through September 30, 2020 as a result of being on duty. Congressman Payne noted that he “introduced this [Act] because we need to reward the workers who have risked their lives for us during this global pandemic.” Congressman Payne also noted that he hoped that private companies whose workers have or may be exposed during the duration of this pandemic follow his lead in implementing a hazard pay system.

The Act seeks to amend the current federal hazardous duty pay differential law under 5 U.S. Code § 5545, as well as the current federal security and training for airport personnel under 49 U.S. Code § 44935. While the Act specifically mentions hazard pay for Transportation Security Administration (TSA) employees who screen passengers at airports, Congressman Payne also noted that hazard pay would apply to other federal employees at risk of exposure such as day care workers and veteran health care workers.

There is, however, an exception to hazard pay for those employees “in a position…which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof,” under the current federal hazard pay law, but it is unclear whether this exception would apply to the new COVID-19 amendment.

As noted, hazard pay is not currently required to be paid by federal employers, and private employers would not be required to change their practices under the proposed federal amendments. Moreover, the federal Fair Labor Standard Act (“FLSA”), only mentions that hazard pay is to be included as part of an employee’s regular rate of pay in computing the employee’s overtime pay.

But it appears that efforts, on the state level, to change the current hazard pay laws, are also underway. In the wake of hundreds of NJ Transit workers becoming infected and dying from the virus, the Amalgamated Transit Union (ATU) state council of New Jersey, a group who has previously worked with Governor Murphy on his prior executive orders concerning COVID-19, are pushing to secure hazard pay for New Jersey essential workers and to include bus drivers on the list of essential workers in New Jersey. In the coming weeks, more developments regarding both the state and federal developments for hazard pay should be expected, and, in turn, some additional relief may soon become available to essential frontline workers.

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