1. “How should the term ‘unusual[]’ be understood in the context of establishing ‘pay differentials’ and ‘proper differentials’ under 5 U.S.C. §§ 5343(c)(4), 5545(d)?”
2. “In view of Adair v. United States, 497 F.3d 1244 (Fed. Cir. 2007), 5 C.F.R. § 550.902 (HDP Regulation), and Appendix A of 5 C.F.R. Pt. 550, Subpt. I (HDP Schedule), what is the meaning of ‘accident?’ What distinction, if any, is there between accidental exposure and incidental exposure?”
3. “If we hold that the HDP Schedule and 5 C.F.R. Pt. 532, Subpt. E, Appx. A (EDP Schedule) are not limited to laboratory-specific duties, what limits, if any, are there to the ‘work[] with or in close proximity to’ language in the HDP and EDP Schedules?”
4. “Are infected persons and surfaces ‘primary containers’ of organisms pathogenic for man,’ as recited in the EDP Schedule for distinguishing between high- and low-degree hazards? See EDP Schedule, at Microorganisms (emphasis added).”
5. “If we conclude that the Court of Federal Claims properly granted dismissal, to what extent could the underlying complaint be amended to establish a plausible claim for relief that satisfies the ‘short and plain statement’ standard of RCFC 8?”
“We conclude that OPM simply has not addressed contagious-disease trans-mission (e.g., human-to-human, or through human-contaminated intermediary objects or surfaces) outside two settings not present here—e.g., certain situations within laboratories and a jungle-work situation. Although OPM might well be able to provide for differential pay based on COVID-19 in various workplace settings, it has not to date adopted regulations that do so.”
