Below are the head notes for the FAB decisions and orders relating to the topic heading, Covered Employment. The head notes are grouped under the following subheadings: Atomic weapons employers, Beryllium vendors, Contractors of other agencies, Federal employees, Federal Prisoners, In general, Non-occupational exposure, Shared employee doctrine, U.S. military, and Verification of. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

Atomic weapons employers

  • Where an employee worked at an AWE facility after the period during which weapons-related production occurred, but during a period when NIOSH found that there was potential for significant residual contamination outside the period of weapons-related production, the employee did not meet the definition of an atomic weapons employee because he was not employed by either the AWE or a subsequent owner or operator of the AWE facility. EEOICPA Fin. Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008).
  • Employee did not meet the definition of an atomic weapons employee because his employment at the facility occurred subsequent to the covered period during which weapons-related production occurred, and NIOSH’s report on residual contamination at AWE facilities did not support a covered period during which there was potential for significant residual contamination at the facility. EEOICPA Fin. Dec. No. 4898-2004 (Dep’t of Labor, March 8, 2005).
  • Any work performed by a subsidiary of a DOE-designated AWE for that AWE is viewed as work performed by a contractor of the AWE; contractor employees of an AWE are not covered under EEOICPA. EEOICPA Fin. Dec. No. 4898-2004 (Dep’t of Labor, March 8, 2005).
  • Due to the separate and distinct nature of a wholly-owned subsidiary and the regulatory and statutory definition of an AWE facility, a wholly-owned subsidiary of a DOE-designated AWE that is not itself designated as an AWE by the DOE cannot be considered an AWE. EEOICPA Fin. Dec. No. 4898-2004 (Dep’t of Labor, March 8, 2005).
  • Employment at the Bethlehem Steel facility after the period it processed or produced material that emitted radiation and was used in the production of an atomic weapon from 1949 through 1952 does not qualify as covered employment since NIOSH has determined in its reports on residual radioactive contamination at AWE facilities that there is no potential for significant residual radioactive contamination at the Bethlehem Steel facility after 1952. Despite the submission of evidence suggesting that there might be residual radiation contamination at the facility, FAB concluded that there could be no covered employment at this facility after 1952, as determined by NIOSH. EEOICPA Fin. Dec. No. 114870-2011 (Dep’t of Labor, July 1, 2011).
  • To be eligible under Part E of EEOICPA, the employee must be a DOE contractor employee, which is not the same as an AWE employee. Here, the Part E claim was denied because employment at a DOE facility was not verified. EEOICPA Fin. Dec. No. 10033981-2006 (Dep’t of Labor, November 27, 2006).
  • Atomic weapons employee who filed a Part B claim for CBD was not eligible for benefits as a “covered beryllium employee,” as that term refers only to employees who worked at either DOE facilities or beryllium vendor facilities and not at an AWE facility. Employees at AWE facilities may only qualify for Part B benefits pursuant to claims for cancer caused by exposure to radiation. EEOICPA Order No. 20120912-81095-1 (Dep’t of Labor, May 30, 2013).
  • Atomic weapons employee who filed a Part E claim failed to meet his burden of proof to establish that he was a DOE contractor employee who worked at a DOE facility. While evidence submitted established that “operations” on behalf of DOE’s predecessor agencies took place at Allied Chemical Corporation’s Metropolis Plant, an AWE facility, there was no evidence either that DOE or its predecessor agencies had a proprietary interest in the worksite, or that they entered into one of the specific types of contracts listed in § 7384l(12)(B)(ii) with an entity at the worksite, so as to meet the statutory definition of “DOE facility.” EEOICPA Fin. Dec. No. 20121127-84623-1 (Dep’t of Labor, April 30, 2013).
  • Atomic weapons employee who filed a Part B claim argued that the Metropolis worksite met the statutory definition of a DOE facility because “operations” on behalf of DOE and its predecessor agencies took place there. Although that argument was irrelevant to his Part B claim, FAB determined that even if it were relevant, DEEOIC does not dispute that “operations” took place at that worksite, but that fact alone was insufficient to establish that the Metropolis plant is a DOE facility. Neither DOE nor any of its predecessor agencies had a “proprietary interest” in the Metropolis worksite, so the requirement of § 7384l(12)(B)(i) was not met. Also, neither DOE nor any of its predecessor agencies entered into one of the specific types of contracts that are listed in § 7384l(12)(B)(ii) with any entity at the worksite, so that alternate requirement was also not met. EEOICPA Fin. Dec. No. 20140710-84623-2 (Dep’t of Labor, March 19, 2015).

Beryllium vendors

  • An employee of a beryllium vendor that previously processed or produced beryllium for sale to, or use by, DOE was only employed after such processing or production had ceased. Nonetheless, he was a “covered beryllium employee” because he was employed during a period when the management of the vendor took conscious action to remediate more than a de minimus amount of residual beryllium contamination related to such processing or production, as established by NIOSH’s report on residual contamination at beryllium vendor facilities. This “conscious action” by the management of the beryllium vendor was an activity “related to” the production or processing of beryllium. EEOICPA Fin. Dec. No. 23005-2002 (Dep’t of Labor, July 31, 2007).
  • An employee of a beryllium vendor who was never employed at a DOE facility is not eligible for compensation under Part E, even if that employee had an illness that might otherwise be covered under Part E. EEOICPA Fin. Dec. No. 10015106-2006 (Dep’t of Labor, July 25, 2006).

Contractors of other agencies

Federal employees

  • FAB concluded that a Department of the Army civilian employee who worked at IAAP for at least 250 work days on Line 1 during the period March 1949 through 1974, and was diagnosed with a specified cancer, was not eligible for benefits under EEOICPA because there was insufficient evidence to support that the AEC contracted with the Army to provide services to the AEC that the Army was not otherwise statutorily obligated to perform. EEOICPA Fin. Dec. No. 87969-2008 (Dep’t of Labor, November 19, 2008).
  • Federal employee who was directly employed by the AEC at Rocky Flats is not covered under Part E of EEOICPA because the Act only extends coverage under Part E to DOE contractor employees or RECA section 5 uranium workers who have been determined by OWCP to have contracted a covered illness through exposure at a DOE facility or a RECA section 5 facility, as appropriate. EEOICPA Fin. Dec. No. 10024820-2006 (Dep’t of Labor, April 17, 2006).
  • Employee was found to have been an employee of the AEC. Erroneous finding by a Physicians Panel under Part D that the employee was employed by a DOE contractor is not binding on OWCP. An employee of the federal government cannot be considered an employee of a government contractor or subcontractor, unless the government agency by which they are employed has a contract with DOE to provide services that meet the criteria established in EEOICPA Bulletin No. 03-26 (issued June 3, 2003). EEOICPA Fin. Dec. No. 10028664-2006 (Dep’t of Labor, August 24, 2006).
  • A GSA employee who performed maintenance work on utilities located on the grounds of the Kansas City Plant was unable to meet his burden of proof to establish that he was a “DOE contractor employee,” because he did not submit evidence of a contract between GSA and DOE, or a subcontract between GSA and DOE’s contractor, that obligated GSA to perform work it was not statutorily obligated to perform at this DOE facility in exchange for compensation. EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013).

Federal prisoners

In general

  • Record of an employee’s employment at a facility prior to that facility’s covered time period does not demonstrate covered employment. EEOICPA Fin. Dec. No. 51813-2004 (Dep’t of Labor, December 27, 2004).
  • FAB concluded that the employee’s aggregate period of covered employment at DOE’s X-10, K-25 and Y-12 Plants in Oak Ridge, Tennessee was appropriately calculated as 27 months where contemporaneous employment cards provided by DOE clearly listed the dates the employee was hired along with the corresponding termination dates for each intermittent period of employment. FAB was not persuaded by the argument that the Oak Ridge Institute for Science and Education database demonstrated a longer period of employment for him because that database is a secondary source consisting of worker data that have been transcribed from primary personnel documents. Furthermore, the specific hire and termination dates listed in that database did not conform to the hire and termination dates on the employee’s employment cards provided by DOE. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).

Non-occupational exposure

Shared employee doctrine

  • Claimant argued that her father’s trip to Amchitka Island to inspect equipment that might have been used at the Blair Lake project benefited not only the Department of Defense but also DOE. Claimant further argued that in common law this is known as the “shared employee” doctrine, which can subject both employers to liability for various employment issues. However, no provision in the Act adopts or refers to the “shared employee” doctrine. EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003).
  • Evidence of record did not establish that individual who allegedly worked for Fercleve Corporation at the Oak Ridge Gaseous Diffusion Plant while “on loan” from the U.S. Army had covered employment. EEOICPA Fin. Dec. No. 13183-2003 (Dep’t of Labor, October 15, 2003).

U.S. military

  • Individual in the U.S. Navy on active military duty is not a covered employee under EEOICPA, which was established to compensate civilian men and women who provided services uniquely related to nuclear weapons production and testing. Members of the military suffering from injuries resulting from government service are covered under a separate program for veterans. EEOICPA Fin. Dec. No. 57276-2004 (Dep’t of Labor, October 26, 2004).
  • Claimant’s spouse, who viewed an atom bomb blast while on active duty with the U.S. Army, was not a covered employee because military service in the U.S. Army is not covered employment under EEOICPA. Congress did not include military personnel as covered employees under the Act. EEOICPA Fin. Dec. No. 59598-2004 (Dep’t of Labor, November 10, 2004).

Verification of

  • Written affidavit by general counsel of labor union confirming claimant’s statement that employee worked for specific employer on Amchitka Island during specific time period was found to be acceptable evidence to verify period of covered employment. EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002).
  • OWCP utilizes contractors such as the Center to Protect Workers’ Rights (CPWR) to assist in obtaining records pertinent to construction and building trade employees who worked at DOE facilities, AWE facilities or beryllium vendor facilities. The CPWR is a research, development and training arm of the Building and Construction Trades Department of the AFL-CIO. EEOICPA Fin. Dec. No. 41341-2005 (Dep’t of Labor, May 11, 2005).
  • General Steel Industries (also known as the Old Betatron Building, General Steel Castings, Granite City Steel, and National Steel Company) is an AWE facility that is covered for production from 1953 to 1966. It is also covered as an AWE facility for residual radiation from 1967 to 1992, and as a DOE facility for remediation activities in 1993. Social Security Administration (SSA) records showing wages paid by General Steel Castings Corporation or by National Roll prior to 1994 are considered sufficient proof of employment at General Steel Industries, absent evidence to the contrary, since SSA changed the Employer Identification Number associated with General Steel Castings Corporation to the number associated with National Roll in 1994. EEOICPA Order No. 62728-2008 (Dep’t of Labor, July 1, 2009).
  • A co-worker’s affidavit stating that the deceased employee worked with him at Area IV of the Santa Susana Field Laboratory was used to establish covered employment, even though DOE’s contractor was only able to confirm that the employee worked in a non-covered area at that location. However, when the co-worker retracted the statements in his affidavit, and there was no other evidence showing that the employee worked at Area IV, the claimants did not meet their burden of proof. EEOICPA Fin. Dec. No. 20121219-81137-1 (Dep’t of Labor, March 13, 2013).
  • Only employees who worked at the Bethlehem Steel facility from 1949 through 1952 meet the definition of atomic weapons employees. Social Security Administration records, information submitted by the Pension Benefit Guaranty Corporation, employment records and medical certification cards indicated that the employee did not begin working at the Bethlehem Steel facility until September 1953. FAB weighed the probative value of that evidence against the probative value of other documentation that the claimants submitted at a hearing to substantiate their allegation that their father began working at that facility in 1951, and determined that the claimants’ submission was of insufficient weight to prove the alleged fact. EEOICPA Fin. Dec. No. 20150209-20000973-2 (Dep’t of Labor, September 23, 2015).