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
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 an 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 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:
- the specific amount of hazard pay that it gives, and
- the conditions under which the pay is given.
- 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 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
An example is a construction worker that performs duties atop a high structure and experiences such adverse conditions as:
- high wind,
- steady rain, and
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 workers on the frontlines of the virus,
- first responders, and
- employees of some grocery stores, drug stores, and other retail outlets.
There is no state-wide law requiring hazard pay. However, various California cities have passed hazard pay ordinances requiring grocery store and drug store workers to receive an extra $3 to $5 an hour. And some employers such as Kroger instituted hazard pay as a policy.7
The purpose of hazard pay is to promote public health by helping essential workers care for themselves, especially since they have to interact with a public that is still largely not vaccinated due to COVID-19 vaccine hesitancy.
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.
Starting in January, 2022, more than half a million caregivers in California will receive a $500 check if they worked for two months or more between March 2020 and March 2021. Caregivers can learn more at the Department of Health Care Services – American Rescue Plan Act.9 And in Santa Clara County, full-time county employees are receiving a bonus of $2,500.10
6. What is the law regarding hazard pay in California?
California does not have a law that requires employers to provide hazardous duty pay. But 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 that work in:
- certain healthcare facilities,
- construction sites,
- war zones,
- hostile locations, and
- settings with extreme or dangerous weather.
During the COVID-19 pandemic, the following localities passed hazard pay ordinances (though most/all are no longer in effect):
- Alameda (City)
- American Canyon
- Buena Park
- Costa Mesa
- Daly City
- El Monte
- Los Angeles (City)
- Los Angeles County
- Long Beach
- San Francisco
- San Jose
- San Leandro
- Santa Ana
- Santa Clara (County)
- Santa Monica
- South San Francisco
Most jurisdictions used the city of Los Angeles’s Premium Hazard Pay for On-Site Grocery and Drug Retail Workers Ordinance as a basis for their hazard pay laws. It defined “premium hazard pay” as $5 extra an hour, which is in addition to wages, bonuses, and other forms of payments. (Some other cities provided only $3 extra an hour.)
The LA ordinance also defined a “covered employer” as any retail, drug, or grocery store with more than 300 employees in the U.S. plus more than 10 employees in an LA worksite. Retail stores had to be over 85,000 square feet with at least 10% of the retail space used for groceries or drugs. And an “employee” was anyone who was entitled to minimum wage and worked at least two hours for a covered employer in the city of Los Angeles. Though in San Francisco, covered employers had to have at least 500 employees in the U.S. with at least 20 in San Francisco. Also unlike LA, San Francisco covered 3rd-party security guards and janitors that worked in covered employers.
Cities also differed regarding whether salaried managers could receive hazard pay. In San Francisco, hazard pay was available to everyone who earned less than $35 an hour – but the original wage plus the hazard pay wage could not exceed $35 an hour total. Meanwhile, Daly City’s hazard pay ordinance did not include managers or supervisors.
In addition, California’s local hazard pay ordinances prohibited employers from retaliating against employees for asserting their rights, required employers to post notices of the ordinance, gave employers credit for hazard pay given prior to the ordinance, and allowed workers to sue the employer for violations. San Francisco’s ordinance mandated that employers give up to four hours of paid leave to employees for time spent getting a vaccine.
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. We represent clients in all California cities, including Los Angeles County, Santa Monica, West Hollywood, Costa Mesa, Montebello, Santa Ana, Santa Clara, Long Beach, Oakland, San Francisco, San Jose, Irvine, Coachella, and more. Disclaimer: Results cannot be guaranteed.
- See U.S. Department of Labor website, “Hazard Pay.”
- See same, citing the Fair Labor Standards Act (FLSA).
- See U.S. Department of Commerce website, “Hazard Pay.”
- See same.
- See same.
- See same.
- See “Essential Workers Are Losing Their ‘Hazard Pay’ Even As the Pandemic Rages On.” Time website, May 14, 2020. See also AB-650 (2021).
- See “New House COVID-19 Bill Includes Hazard Pay for Feds, Strengthens Protections for Telework and Sick Leave.” Government Executive website, May 12, 2020. See also Gina Acosta, California Grocers Association Sues Over Pay Mandates, Progressive Grocer (March 14, 2021) (re. hazard pay ordinances to benefit grocery workers; grocers argue the ordinances are preempted by the National Labor Relations Act). Jeong Park, Grocery workers aren’t the only ones pushing for COVID hazard pay in California. What’s next?, Sacramento Bee (March 19, 2021) (“Long Beach [city council] was the first to pass an ordinance, giving [grocery store workers] at large grocery stores an extra $4 per hour [as a hazard pay mandate or “hero pay”] for at least 120 days…”‘Funding from the American Rescue Plan must target the communities that have been most impacted by the pandemic.'”). SF passes bill to give $5 hazard pay to grocery, retail workers, ABC 7-News (March 9, 2021) (“The ordinance was crafted with input from the labor unions United Food and Commercial Workers, Local 5 and United Food and Commercial Workers, Local 648.”).
- Jeong Park, More than 500,000 California workers will get $500 pandemic bonuses. Here are the details, Sacramento Bee (November 17, 2021).
- Kate Elizabeth Queram, One County Will Give $76 Million in ‘Hero Pay’ to Public Employees for Covid Response, Route Fifty (November 16, 2021). See also California Grocers Assoc. v. City of Long Beach (2021) Case No 2:21-cv-00524-ODW (ASX). See also Southern California Healthcare System, Inc. v. The City of Culver City, et al. (9th Cir. 2021) No. 21-55788.