Hazard Pay in California – What is it and is it required?

Updated October 9, 2020

Hazard pay refers to extra pay that an employer pays to an employee because he/she works under hazardous conditions or performs work duties involving physical hardship. Hazard pay is often referred to as “hazardous duty pay” in the United States.

While no federal or state law makes an employer offer this type of payment, a company can decide to provide it. If an employer does provide hazard pay, then it determines the specific amount of the payment and the conditions under which it is given.

The pay is then given in addition to the employee’s

• salary,
• hourly wage, or
• regular rate of pay.

Note that there is no one universal definition for a “hazardous duty” or a duty that involves a “physical hardship.” Most employers, though, agree that:

• a hazardous duty is one that could result in serious injury or death, and
• a physical hardship an extreme physical discomfort that cannot be easily relieved or cured.

Note too that some employers have chosen to provide “essential workers” with hazard pay during the COVID-19 outbreak. Some of these workers have included:

• health care providers working on the frontlines of the virus, and
• employees of some grocery stores.

Since the Fair Labor Standards Act (FLSA) does not mandate hazard pay, employees cannot assert a FLSA violation if an employer does not provide this type of compensation.

As with federal law, the State of California does not have a law that obligates employers to pay hazardous duty pay. Employers, however, may decide on their own to compensate employees with hazard pay.

In this article, our California labor and employment law attorneys will answer the following 6 questions:

• 1. What is hazard pay?
• 2. How is the employee compensated?
• 3. What is a hazardous duty?
• 4. What is a physical hardship?
• 5. Are essential workers entitled to hazard pay during the COVID-19 pandemic?
• 6. What is the law regarding hazard pay in California?

1. What is hazard pay?

Hazard pay is additional pay that an employer pays to its employees. The payment is given because the worker either:

• labors under hazardous conditions, or
• performs work tasks that involve physical hardships or works in extreme physical discomfort.¹

There is no state or federal law that requires an employer to pay this type of compensation. Workers typically receive it if they belong to a union and the union negotiates for it through collective bargaining.

However, some employers may provide the pay to non-union employees as well.

The individual employer that provides hazard pay determines:

1. the specific amount of hazard pay that it gives, and
2. the conditions under which the pay is given.

Sometimes workers have a right to receive overtime pay. If so, and the worker also receives hazard pay, then according to the U.S. Department of Labor the OT must be calculated using his/her:

• regular earnings, and
• any amount of hazard pay.²

Employees, both private employees and federal employees, should consult with their employee handbooks or contracts to learn if they are entitled to hazard pay. Instructions about this compensation may also be found on an employer’s FAQ section of its website.

2. How is the employee compensated?

Hazard pay represents a type of premium pay, or additional pay (or pay increase) given because of the conditions under which an employee works.

The pay is given in addition to an employee’s:

• regular salary,
• normal hourly pay, or
• regular rate of pay.

The amount of hazardous duty pay that an employee is given is often provided as:

• a flat rate (e.g., an additional $250 per week), or
• an extra percentage of an employee’s hourly pay.

A worker typically only receives hazard pay for the hours worked either:

• under hazardous conditions, or
• under a physical hardship.

Example: A medical staffing company pays nurses by an hourly rate and also provides health care benefits.

The company decides to pay its nurses hazard pay for time working on the frontlines of the COVID-19 outbreak.

Lisa is a nurse that works for the company. She splits her time by working in a center that provides cancer care and as a high-risk frontline worker at a hospital that treats patients with the coronavirus.

Here, Lisa would only be entitled to receive hazard pay for the time she spent treating patients affected by the coronavirus pandemic. She would not receive extra pay for working at the non-hazardous cancer clinic.

If the company does not pay Lisa wages for hazardous duties, then she may be entitled to file a wage and hour lawsuit.

3. What is a hazardous duty?

There is not one universal definition that describes a “hazardous duty.” The employer that provides this pay often has its own description for the term.

The federal government, though, provides some instruction. According to the U.S. Department of Commerce, a “hazardous duty” is any work duty that can result in:

• serious injury, or
• death.³

An example is a construction worker that performs duties atop a high structure and experiences such adverse conditions as:

• high wind,
• darkness,
• steady rain, and
• lightning.⁴

4. What is a physical hardship?

As with “hazardous duty,” there is no one universal definition of “physical hardship.” Employers that pay hazard pay will have their own definition of the term.

Again, though, the Department of Commerce provides some guidance. The agency says that a duty involving a “physical hardship” is one that:

• causes extreme physical discomfort, and
• cannot be eased by protective measures.⁵

Examples include a work duty that requires:

• exposure to high temperatures,
• arduous physical exertion, and
• exposure to fumes, dust, or loud noise.⁶

5. Are essential workers entitled to hazard pay during the COVID-19 pandemic?

Some employers have provided “essential workers” with hazard pay during the COVID-19 outbreak. Some of these workers have included:

• health care providers working on the frontlines of the virus,
• first responders, and
• employees of some grocery stores.

Note, though, that there is no law requiring this act. The decision to pay essential workers with extra compensation is entirely up to the employer. Some companies that have provided hazard pay to essential workers include:

• Amazon, and
• Kroger.⁷

Note that the House of Representatives did pass the HEROES Act in the spring of 2020. The “Heroes Fund” would:

• provide hazard pay for certain employees of the federal government, and
• strengthen protections for telework and sick leave.⁸

It is unlikely, though, that the Senate will approve the bill since its supporters include mostly democrats.

6. What is the law regarding hazard pay in California?

California does not have a law that requires employers to provide hazardous duty pay.

However, some employers do provide this type of compensation to their employees. If so, the above rules and definitions typically apply.

Note that California employers might offer hazard pay to employees that work in:

• certain healthcare facilities,
• mines,
• construction sites,
• war zones,
• hostile locations, and
• settings with extreme or dangerous weather.

For additional help…

For additional guidance or to discuss your case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We provide a free consultation and trusted legal advice you can rely on.

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