Fed. Claims Lawsuit Says TSA Workers Owed Hazard, Environmental Discharge Pay Over ‘Very Real’ Pandemic Risks

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Federal Transportation Security Administration (TSA) employees are entitled to hazard and environmental discharge pay in light of the severe health risks they face by coming into close contact with airport travelers amid the coronavirus pandemic, a proposed class and collective action says. 

The 19-page suit, filed November 30 in the U.S. Court of Federal Claims, says TSA personnel, who the plaintiff stresses are “forced to work every day without appropriate protective equipment” and other COVID-19 safeguards, are owed hazard and environmental discharge wages pursuant to federal pay regulations for exposure to virulent biologicals in the course of duty. 

“As evident from the number of deaths so far, the risk is not hypothetical,” the complaint reads, citing a November 17 USA Today report that said nine out of 2,885 TSA employees who have tested positive for coronavirus thus far have died. “It is very real.” 

The plaintiff, a TSA security officer who works at Los Angeles International Airport (LAX), looks to represent all individuals who worked as behavior detection officers, transportation security officers, lead transportation security officers or any other similarly situated position for the United States of America and whose primary function was to screen/physically handle passengers and/or their belongings without sufficient precautionary measures and in close proximity to objects, surfaces and/or individuals infected with COVID-19 at any time since January 2020. 

According to the lawsuit, it is the role of the U.S. Office of Personnel Management (OPM) to establish a schedule of pay differentials for duty that involves “unusual physical hardship or hazard.” The lawsuit says the schedule of hazardous duty pay differentials provides that agencies shall pay a 25-percent hazard pay differential when employees perform work with or in close proximity to virulent biologicals, or “materials or 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.” 

Further, the OPM’s schedule of environmental differentials, the lawsuit says, provides that agencies shall pay an eight-percent differential when employees perform work with or in close proximity to “micro-organisms which involves potential personal injury such as death, or temporary, partial, or complete loss of faculties or ability to work due to acute, prolonged, or chronic disease,” and for which “the use of safety devices and equipment, medical prophylactic procedures such as vaccines and antiserums and other safety measures do not exist or have been developed but have not practically eliminated the potential for such personal injury.” Proposed class members are also entitled to a four-percent environmental differential when they work with or in close proximity to “micro-organisms in situations for which the nature of the work does not require the individual to be in direct contact with primary containers of organisms pathogenic for man” and where “the use of safety devices and equipment and other safety measures have not practically eliminated the potential for personal injury,” per the complaint. 

The plaintiff argues that even if the TSA had provided sufficient precautions to ensure complete protection from COVID-19, no such measures exist that would result in reducing exposure to a “less than significant level of risk.” 

“COVID-19 spreads easily from person to person and can even last on surfaces like countertops and doorknobs anywhere from several hours to days,” the case reads. “Because there is currently no vaccine for COVID-19, Plaintiffs have been, and are, exposed to COVID-19 every time their job forces them into the community.”

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