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

Hazard pay (also called “hazardous duty pay”) refers to extra pay that an employer pays to an employee because they work under hazardous conditions or perform work duties involving physical hardship. Each employer has its own hazard pay policies, if any.

Here are five key things to know:

1. Hazard pay is given in addition to an employee’s salary, hourly wage, or regular rate of pay.
2. Hazard pay is not required under state law or under the federal Fair Labor Standards Act (FLSA).
3. Employees cannot assert an FLSA violation if their employer does not give hazard pay.
4. Employers who offer hazard pay have their own rules about when it kicks in.
5. Most employers agree that “hazardous duties” involve a risk of serious injury or extreme physical discomfort.

In this article, our California labor and employment law attorneys will answer the following five 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. What is the law regarding hazard pay in California?
• Additional resources

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

Hazard pay laws

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 a collective bargaining agreement.

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.

How overtime pay factors in

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 (DOL) the OT must be calculated using their:

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

Both private employees and federal employees should consult 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 (for example, 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 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 a hazard pay retention bonus 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

Example

An example of a hazardous duty 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

Examples of physical hardship include a work duty that requires:

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

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

California does not have a law that requires employers to provide hazardous duty pay. Though some employers choose to provide hazard pay to their full-time or part-time employees. If so, the above rules and definitions typically apply.

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

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

Also note that during an emergency, employers may not take or threaten adverse action against employees for refusing to come or stay at work because they have a reasonable belief the work site is not safe.⁷

Additional resources

For more information, refer to the following:

• Economic News Release – Bureau of Labor Statistics data on fatal occupational injuries by industry.
• State and Local Hazard Pay – Article by American Action Forum.
• The COVID-19 hazard continues, but the hazard pay does not: Why America’s essential workers need a raise – Article by the Brookings Institute.
• An unexpected pitfall for some cities’ mandatory hazard pay for essential workers – Article by PBS.
• All You Need to Know About Hazard Pay Today – Article by Deskera.

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