By Max Kutner

Law360 (December 15, 2020, 7:31 PM EST ) The U.S. government failed to escape a suit filed by 115 Kentucky federal prison employees who claimed they deserved hazard pay because of COVID-19, after the U.S. Court of Federal Claims rejected the government's bid to dismiss the case.

In a memorandum opinion and order on Monday, Judge David A. Tapp denied a motion by the government to dismiss for failure to state a claim, saying the prison employees had sufficiently alleged that the government owed them hazardous duty pay and other pay because of the unusual dangers they faced during the pandemic.

"The employees have stated a plausible claim for relief that is not so vague or ambiguous that the United States is unable to reasonably prepare a response," Judge Tapp said in the opinion and order. "Therefore, the plaintiffs' complaint clears the initial hurdle necessary for them to continue their pursuit of relief."

Correctional officers and other current and former employees at the Federal Medical Center in Lexington, Kentucky, part of the Federal Bureau of Prisons, filed the suit in July. They claimed that the government owed them hazard pay, environmental differential pay and additional overtime pay based on the two other adjustments.

The employees said in their suit that they deserved hazard pay because they "performed work with or in close proximity to objects, surfaces and/or individuals infected with the novel coronavirus." More than 280 employees and incarcerated people at their prison had contracted the disease, and at least six incarcerated people had died because of it, according to their allegations.

Certain salaried government employees can receive hazard pay "for duty involving unusual physical hardship or hazard," unless the hazard is already taken into account as part of the job, according to the statute, which the judge cited in his order. Among the reasons for hazard pay can be "exposure to hazardous agents" and working "in close proximity to ... virulent biologicals," according to the judge's ruling.

There are similar guidelines for environmental differential pay, which is available to a different classification of government workers, the judge said.

For a hazard pay claim, the employees would have to plead that they worked near COVID-19; that COVID-19 can cause disease or fatality and that equipment cannot completely protect them; and that the risk is not part of the job classification.

Judge Tapp rejected the government's argument that the employees had failed to state a claim, saying the employees had made allegations that satisfied those elements. They had also met the similar pleading threshold for their environmental differential pay claim, the judge said.

The government had claimed that the employees would have had to work directly with COVID-19, such as by handling containers of the coronavirus, to make their claim, according to the order. The judge tossed the argument, saying "that such a narrow reading would produce absurd results," since no one would ever get hazard pay if that were the case, because the only people working with viruses that way do so as part of their job.

The judge also denied the government's motion for a more definite statement based on its claim that the employees did not provide enough information, saying the employees had given enough and that the government already possessed much of it.

The judge also said the employees' Fair Labor Standards Act allegation that the government miscalculated their overtime pay because it did not include the hazard or environmental differential pay can move forward because it was contingent on the other claims.

Monday's order comes amid record-high COVID-19 levels in the U.S. and ongoing spread at federal prisons. As of Tuesday, the Bureau of Prisons said 6,023 people incarcerated at its facilities and 1,759 staff members currently had positive cases, and 26,197 incarcerated people and 2,398 staff members had recovered. There had been 163 deaths of incarcerated people and two staff member deaths due to the disease, the agency said.

The U.S. Office of Personnel Management released guidance in March saying government schedule employees can be eligible for hazard pay stemming from COVID-19 as long as exposure to the disease was not already taken into account as part of the job, according to the agency's website.

Other types of federal employees have also sued the government for hazard pay due to COVID-19. In March, the American Federation of Government Employees filed a proposed class action in the Court of Federal Claims, and in November, a Transportation Security Administration worker filed a putative class action in the same court.

David Ricksecker of McGillivary Steele Elkin LLP, who represents the prison employees, said his clients are pleased that their case can move forward against the government.

"We're really glad that the judge saw through their motion and found in favor of the plaintiffs and this case can continue and they can get some sense of justice here," Ricksecker told Law360 on Tuesday. "They are going to work in the prison, which is already dangerous, and then on top of that now they have the COVID-19 pandemic raging through there, so it's really important for them to get this additional pay ... which Congress authorized through legislation for exactly these types of circumstances."

A Bureau of Prisons spokesperson was not immediately available to comment.

The prison employees are represented by David Ricksecker of McGillivary Steele Elkin LLP.

The government is represented by Eric Evan Laufgraben of the U.S. Department of Justice.

The case is Adams et al. v. USA, case number 1:20-cv-00909, in the U.S. Court of Federal Claims.

--Additional reporting by Craig Clough and Kevin Stawicki. Editing by Leah Bennett.

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