Healthcare workers and first responders are forced to report to work, day after day, to battle the life-threatening virus that has taken tens of thousands of lives and turned life as we know it upside down. These employees are in the thick of it, coming in contact with infected people on a daily basis, and putting their family’s health and their own health at risk. Sadly, there is no legal requirement that their employers provide them with hazard pay, despite the grave dangers they continue to face.

What is Hazard Pay?

Hazard pay is defined as "additional pay for performing hazardous duty or work involving physical hardship," according to the U.S. Department of Labor, and is intended to compensate an employee for work that could result in serious injury or death. Hazard pay is usually a payment on top of regular hourly wages or salary and is often applied as a premium. The amount of hazard pay, and the conditions for which hazard pay is provided, is solely determined by employers. For example, an employer could decide to compensate employees by calculating the hazard pay as a premium by paying 15% of an employee’s hourly rate or base salary in addition to their typical rate of pay when they work under hazardous conditions; alternatively, the employer could issue the hazard pay at a flat rate of $500 per month, for example, in which case the hazard pay would be more like a bonus. Some types of conditions that may be considered hazardous include: active war zones, working with dangerous chemicals or pathogens, mining, construction, and working in dangerous or extreme weather. However, hazard pay is not typically payable when safety precautions have reduced the element of hazard to a less than significant level of risk.

Will COVID-19 Create Working Conditions that Make Employees Eligible for Hazard Pay?

COVID-19 could clearly result in serious injury or death. After all, the CDC announced that the overall cumulative hospitalization rate for the virus is 4.6 per 100,000 people, and the number of COVID-19 related deaths in the United States had reached 20,000, as of April 17, 2020. Essential employees forced to report to work during this pandemic are concerned for their health, and rightly so. This has led to employee requests for hazard pay. Some companies recognize the danger their employees are subject to and have started offering some sort of hazard pay, though they are not exactly calling it “hazard pay.” Such companies include: Amazon, Albertsons, Kroger, Safeway and Whole Foods, which all announced $2 per hour pay raises for eligible employees. Unfortunately, there are no signs of healthcare employers doing the same, notwithstanding the fact that those working in the healthcare field are by far the most exposed and likely to contract COVID-19.

While many healthcare employees are wearing some sort of protective gear to attempt to decrease their likelihood of contracting the virus, PPEs are running low and being reused against manufacturer guidelines. There is a shortage of N95 respirators and surgical face masks which has led to the CDC recommending that healthcare providers use masks that are past their expiration date, even though they “might not perform to the requirements for which they were certified.” Some hospital personnel have had to resort to wearing homemade masks that do not filter out airborne particles of COVID-19 and even walk past COVID-19 patients holding their breath. Previously, hospital staff might go through a dozen disposable masks in a shift, but now in some facilities staff are limited to one per week.

Since the use of effective PPEs is becoming a luxury and no longer the standard, it is difficult to argue that the safety precautions employed by healthcare workers have reduced the element of hazard to a less than significant level of risk. If they are required to be on the front-lines of the pandemic, we should at least compensate them for the risk they take on, not only for themselves, but for the loved ones they may bring the virus home to.

Legislative Action is required to Ensure that Healthcare Workers Receive Hazard Pay

There is currently no state or federal law that requires employers to pay employees hazard pay. The Fair Labor Standards Act (FLSA) addresses hazard pay, but only to require that it be included as part of a federal employee's regular rate of pay in computing the employee's overtime pay.

On March 30, 2020, President Trump said that his administration was looking at providing healthcare workers with hazard pay by way of a future relief package. Treasury Secretary Steven Mnuchin later said that it is something that will definitely be included in the next bill, and some members of Congress have even spoken out in support of the sentiment. Still, action has yet to be taken.

In order to remedy the oversight in the law, Congress could simply amend the FLSA to mandate that employers provide hazard pay to healthcare workers and first responders. However, to prevent employers from attempting to game the system, Congress should be careful to set a floor for what these employees must be paid. If no floor is set, some employers may pay employees a minuscule amount that would not truly compensate them for the risks they are taking. On the other hand, if Congress set hazard pay for healthcare workers and first responders at time and a half, employers could choose to pay more than that, but would be prohibited from paying any less.

Our firm has been working to urge Congress to take action. Attorney Josh Van Kampen did an interview with WSOC TV advocating for Congressional action, and we also created a Change.org petition to expand worker protections for those affected by the COVID-19 pandemic. We encourage everyone to stand up for employee rights during this time, and that includes demanding hazard pay for those battling this pandemic.

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