II 

117TH CONGRESS 

1ST SESSION S. 537 

To provide a tax credit for certain expenses associated with protecting 

employees from COVID–19. 

IN THE SENATE OF THE UNITED STATES 

MARCH 2 (legislative day, MARCH 1), 2021 

Mr. PORTMAN (for himself and Ms. SINEMA) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

A BILL 

To provide a tax credit for certain expenses associated with 

protecting employees from COVID–19. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Healthy Workplaces 

5 Act’’. 

6 SEC. 2. HEALTHY WORKPLACE PAYROLL TAX CREDIT. 

7 (a) IN GENERAL.—In the case of an employer, there 

8 shall be allowed as a credit against applicable employment 

9 taxes for each calendar quarter an amount equal to 50 

10 percent of the sum of— 


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1 (1) the qualified employee protection expenses 

2 paid or incurred by the employer during such cal3 endar quarter, 

4 (2) the qualified workplace reconfiguration ex5 penses paid or incurred by the employer during such 

6 calendar quarter, and 

7 (3) the qualified education and training ex8 penses paid or incurred by the employer during such 

9 calendar quarter. 

10 (b) LIMITATIONS AND REFUNDABILITY.— 

11 (1) OVERALL DOLLAR LIMITATION ON CRED12 IT.— 

13 (A) IN GENERAL.—The amount of the 

14 credit allowed under subsection (a) with respect 

15 to any employer for any calendar quarter shall 

16 not exceed the excess (if any) of— 

17 (i) the applicable dollar limit with re18 spect to such employer for such calendar 

19 quarter, over 

20 (ii) the aggregate credits allowed 

21 under subsection (a) with respect to such 

22 employer for all preceding calendar quar23 ters. 

24 (B) APPLICABLE DOLLAR LIMIT.— 


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1 (i) IN GENERAL.—The term ‘‘applica2 ble dollar limit’’ means, with respect to any 

3 employer for any calendar quarter, the 

4 sum of— 

5 (I) $1,000, multiplied by so much 

6 of the average number of full-time 

7 employees employed by such employer 

8 during such calendar quarter as does 

9 not exceed 500, plus 

10 (II) $750, multiplied by so much 

11 of such average number of full-time 

12 employees as exceeds 500 but does 

13 not exceed 1,000, plus 

14 (III) $500, multiplied by so much 

15 of such average number of full-time 

16 employees as exceeds 1,000 but does 

17 note exceed 2,500, plus 

18 (IV) $250, multiplied by so much 

19 of such average number of full-time 

20 employees as exceeds 2,500 but does 

21 not exceed 5,000, plus 

22 (V) $50, multiplied by so much 

23 of such average number of full-time 

24 employees as exceeds 5,000. 


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1 (ii) AVERAGE NUMBER OF FULL-TIME

2 EMPLOYEES.—For purposes of this sub3 section, the average number of full time 

4 employees shall be determined in the same 

5 manner as such number is determined for 

6 purposes of determining whether an em7 ployer is an applicable large employer for 

8 purposes of section 4980H(c)(2) of the In9 ternal Revenue Code of 1986, except 

10 that— 

11 (I) an individual shall not be 

12 taken into account as an employee for 

13 any period during which substantially 

14 all of the services provided by such in15 dividual as an employee are provided 

16 outside the United States, and 

17 (II) under regulations provided 

18 by the Secretary, an individual who 

19 performs services as an independent 

20 contractor shall be treated as an em21 ployee of the employer if no credit 

22 under this section is allowed to any 

23 other employer with respect to such 

24 individual. 


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1 (2) CREDIT LIMITED TO EMPLOYMENT

2 TAXES.—The credit allowed by subsection (a) with 

3 respect to any calendar quarter shall not exceed the 

4 applicable employment taxes (reduced by any credits 

5 allowed under subsections (e) and (f) of section 

6 3111 of the Internal Revenue Code of 1986, sections 

7 7001 and 7003 of the Families First Coronavirus 

8 Response Act, and section 2301 of the CARES Act) 

9 on the wages paid with respect to the employment 

10 of all the employees of the employer for such cal11 endar quarter. 

12 (3) REFUNDABILITY OF EXCESS CREDIT.— 

13 (A) IN GENERAL.—If the amount of the 

14 credit under subsection (a) exceeds the limita15 tion of paragraph (2) for any calendar quarter, 

16 such excess shall be treated as an overpayment 

17 that shall be refunded under sections 6402(a) 

18 and 6413(b) of the Internal Revenue Code of 

19 1986. 

20 (B) TREATMENT OF PAYMENTS.—For pur21 poses of section 1324 of title 31, United States 

22 Code, any amounts due to the employer under 

23 this paragraph shall be treated in the same 

24 manner as a refund due from a credit provision 

25 referred to in subsection (b)(2) of such section. 


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1 (c) QUALIFIED EMPLOYEE PROTECTION EX2 PENSES.—For purposes of this section, the term ‘‘quali3 fied employee protection expenses’’ means amounts (other 

4 than any qualified workplace reconfiguration expense) 

5 paid or incurred by the employer for— 

6 (1) testing employees of the employer for 

7 COVID–19 (including on a periodic basis), 

8 (2) equipment (including masks, gloves, and 

9 disinfectants) and technology systems used— 

10 (A) to protect customers or employees of 

11 the employer from contracting COVID–19, or 

12 (B) to enhance social distancing and con13 tact tracing. 

14 (3) cleaning products or services (whether pro15 vided by an employee of the taxpayer or a cleaning 

16 service provider) related to preventing the spread of 

17 COVID–19, and 

18 (4) such other equipment or technology which— 

19 (A) is recommended as part of the Federal 

20 government’s recommendations for safe work21 places, and 

22 (B) the Secretary, in consultation with the 

23 Secretary of Health and Human Services and 

24 the Director of the Centers for Disease Control 


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1 and Prevention, determines is necessary and ap2 propriate for preventing COVID–19. 

3 (d) QUALIFIED WORKPLACE RECONFIGURATION EX4 PENSES.—For purposes of this section— 

5 (1) IN GENERAL.—The term ‘‘qualified work6 place reconfiguration expenses’’ means amounts paid 

7 or incurred by the employer to evaluate, design, and 

8 reconfigure retail space, work areas, break areas, or 

9 other areas that employees or customers regularly 

10 use in the ordinary course of the employer’s trade or 

11 business if such evaluation, design, and reconfigura12 tion— 

13 (A) has a primary purpose of preventing 

14 the spread of COVID–19, 

15 (B) is with respect to an area that is lo16 cated in the United States and that is leased or 

17 owned by the employer, 

18 (C) is consistent with the ordinary use of 

19 the property immediately before the reconfig20 uration, 

21 (D) is commensurate with the risks faced 

22 by the employees or customers or is consistent 

23 with recommendations made by the Centers for 

24 Disease Control and Prevention or the Occupa25 tional Safety and Health Administration, 


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1 (E) is completed pursuant to a reconfig2 uration plan and no comparable reconfiguration 

3 plan was in place before March 13, 2020, and 

4 (F) is completed before January 1, 2022. 

5 (2) REGULATIONS.—The Secretary shall pre6 scribe such regulations and other guidance as may 

7 be necessary or appropriate to carry out the pur8 poses of this subsection, including guidance defining 

9 primary purpose and reconfiguration plan. 

10 (e) QUALIFIED EDUCATION AND TRAINING EX11 PENSES.—For purposes of this section— 

12 (1) IN GENERAL.—The term ‘‘qualified edu13 cation and training expenses’’ means amount paid or 

14 incurred to a qualified entity for the training em15 ployees on new business procedures related to pre16 venting COVID–19 transmission. 

17 (2) QUALIFIED ENTITY.—The term ‘‘qualified 

18 entity’’ means any entity certified by the Secretary 

19 as an accredited training institution, an industry20 recognized trade association, or a nonprofit entity 

21 qualified to provide training described in paragraph 

22 (1). 

23 (f) OTHER DEFINITIONS.—For purposes of this sec24 tion— 


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1 (1) APPLICABLE EMPLOYMENT TAXES.—The 

2 term ‘‘applicable employment taxes’’ means the fol3 lowing: 

4 (A) The taxes imposed under section 

5 3111(a) of the Internal Revenue Code of 1986. 

6 (B) So much of the taxes imposed under 

7 section 3221(a) of such Code as are attrib8 utable to the rate in effect under section 

9 3111(a) of such Code. 

10 (2) COVID–19.—Except where the context 

11 clearly indicates otherwise, any reference in this sec12 tion to COVID–19 shall be treated as including a 

13 reference to the virus which causes COVID–19. 

14 (3) SECRETARY.—The term ‘‘Secretary’’ means 

15 the Secretary of the Treasury or the Secretary’s del16 egate. 

17 (4) OTHER TERMS.—Any term used in this sec18 tion (other than subsection (b)(1)(B)) which is also 

19 used in chapter 21 or 22 of the Internal Revenue 

20 Code of 1986 shall have the same meaning as when 

21 used in such chapter. 

22 (g) CERTAIN GOVERNMENTAL EMPLOYERS.—This 

23 section shall not apply to the Government of the United 

24 States, the government of any State or political subdiviVerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537

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1 sion thereof, or any agency or instrumentality of any of 

2 the foregoing. 

3 (h) SPECIAL RULES.— 

4 (1) AGGREGATION RULE.—All persons treated 

5 as a single employer under subsection (a) or (b) of 

6 section 52 of the Internal Revenue Code of 1986, or 

7 subsection (m) or (o) of section 414 of such Code, 

8 shall be treated as one employer for purposes of this 

9 section. 

10 (2) DENIAL OF DOUBLE BENEFIT.—Rules simi11 lar to the rules of section 280C(a) of the Internal 

12 Revenue Code of 1986 shall apply for purposes of 

13 this section. 

14 (3) THIRD-PARTY PAYORS.—Any credit allowed 

15 under this section shall be treated as a credit de16 scribed in section 3511(d)(2) of such Code. 

17 (4) ELECTION NOT TO HAVE SECTION APPLY.— 

18 This section shall not apply with respect to any em19 ployer for any calendar quarter if such employer 

20 elects (at such time and in such manner as the Sec21 retary may prescribe) not to have this section apply. 

22 (5) COORDINATION WITH PAYCHECK PROTEC23 TION PROGRAM AND OTHER GOVERNMENT

24 GRANTS.— 

25 (A) PAYCHECK PROTECTION PROGRAM.— 


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1 (i) IN GENERAL.—No credit shall be 

2 allowed under section with respect to any 

3 amounts taken into account in connection 

4 with a covered loan under section 7(a)(37) 

5 or 7A of the Small Business Act. 

6 (ii) APPLICATION WHERE LOANS NOT

7 FORGIVEN.—The Secretary, in consultation 

8 with the Administrator of the Small Busi9 ness Administration, shall issue guidance 

10 providing that amounts taken into account 

11 during the covered period shall not fail to 

12 be treated as qualified wages under this 

13 section by reason of subparagraph (A) to 

14 the extent that— 

15 (I) a covered loan of the taxpayer 

16 under section 7(a)(37) of the Small 

17 Business Act is not forgiven by reason 

18 of a decision under section 

19 7(a)(37)(J) of such Act, or 

20 (II) a covered loan of the tax21 payer under section 7A of the Small 

22 Business Act is not forgiven by reason 

23 of a decision under section 7A(g) of 

24 such Act. 


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1 (B) GOVERNMENT GRANTS.—No credit 

2 shall be allowed under this section with respect 

3 to any amount paid or incurred for property or 

4 services if such property or services are fi5 nanced with funding provided under a Federal, 

6 State, or local program a principal purpose of 

7 which is to provide subsidized financing for 

8 such property or services. 

9 (6) EXPENSES MUST BE FOR PROPERTY OR

10 SERVICES WITHIN THE UNITED STATES.—An 

11 amount paid or incurred by the employer shall not 

12 be taken into account as a qualified employee protec13 tion expense, a qualified workplace reconfiguration 

14 expense, or a qualified education and training ex15 pense if such amount is paid or incurred for— 

16 (A) equipment which is not for use in the 

17 United States, or 

18 (B) services which are not conducted in the 

19 United States. 

20 (i) TRANSFERS TO CERTAIN TRUST FUNDS.—There 

21 are hereby appropriated to the Federal Old-Age and Sur22 vivors Insurance Trust Fund and the Federal Disability 

23 Insurance Trust Fund established under section 201 of 

24 the Social Security Act (42 U.S.C. 401) and the Social 

25 Security Equivalent Benefit Account established under 


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1 section 15A(a) of the Railroad Retirement Act of 1974 

2 (45 U.S.C. 231n–1(a)) amounts equal to the reduction in 

3 revenues to the Treasury by reason of this section (without 

4 regard to this subsection). Amounts appropriated by the 

5 preceding sentence shall be transferred from the general 

6 fund at such times and in such manner as to replicate 

7 to the extent possible the transfers which would have oc8 curred to such Trust Fund or Account had this section 

9 not been enacted. 

10 (j) TREATMENT OF DEPOSITS.—The Secretary shall 

11 waive any penalty under section 6656 of the Internal Rev12 enue Code of 1986 for any failure to make a deposit of 

13 any applicable employment taxes if the Secretary deter14 mines that such failure was due to the reasonable anticipa15 tion of the credit allowed under this section. 

16 (k) REGULATIONS AND GUIDANCE.—The Secretary 

17 shall prescribe such regulations and other guidance as 

18 may be necessary or appropriate to carry out the purposes 

19 of this section, including— 

20 (1) with respect to the application of the credit 

21 under subsection (a) to third-party payors (including 

22 professional employer organizations, certified profes23 sional employer organizations, or agents under sec24 tion 3504 of the Internal Revenue Code of 1986), 

25 regulations or other guidance allowing such payors 


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1 to submit documentation necessary to substantiate 

2 the amount of the credit allowed under subsection 

3 (a), 

4 (2) regulations or other guidance with respect 

5 to amounts paid or incurred by an employer on be6 half of the owner or lessee, or paid or incurred by 

7 such owner or lessee, of a property that is the sub8 ject of a management agreement or other similar 

9 legal arrangement, and 

10 (3) regulations or other guidance to prevent 

11 abusive transactions. 

12 (l) APPLICATION.—This section shall only apply to 

13 amounts paid or incurred after December 31, 2020, and 

14 before January 1, 2022. 

15 SEC. 3. INCOME TAX CREDIT FOR 2020 QUALIFIED WORK16 PLACE RECONFIGURATION EXPENSES. 

17 (a) IN GENERAL.—For purposes of section 38 of the 

18 Internal Revenue Code of 1986, in the case of an em19 ployer, the 2020 qualified workplace reconfiguration credit 

20 shall be treated as a credit listed at the end of subsection 

21 (b) of such section. For purposes of this subsection, the 

22 2020 qualified workplace reconfiguration credit for any 

23 taxable year is an amount equal to 50 percent of the quali24 fied workplace reconfiguration expenses paid or incurred 

25 by the employer during such taxable year. 


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1 (b) LIMITATION.— 

2 (1) IN GENERAL.—The amount of the credit al3 lowed under subsection (a) with respect to any em4 ployer for any taxable year shall not exceed— 

5 (A) $3,000, multiplied by so much of the 

6 average number of full-time employees em7 ployed by such employer during such taxable 

8 year as does not exceed 500, plus 

9 (B) $0, multiplied by so much of such av10 erage number of full-time employees as exceeds 

11 500. 

12 (2) AVERAGE NUMBER OF FULL-TIME EMPLOY13 EES.—For purposes of this subsection, the average 

14 number of full time employees shall be determined in 

15 the same manner as such number is determined for 

16 purposes of determining whether an employer is an 

17 applicable large employer for purposes of section 

18 4980H(c)(2) of the Internal Revenue Code of 1986, 

19 except that— 

20 (A) an individual shall not be taken into 

21 account as an employee for any period during 

22 which substantially all of the services provided 

23 by such individual as an employee are provided 

24 outside the United States, and 


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1 (B) under regulations provided by the Sec2 retary, an individual who performs services as 

3 an independent contractor shall be treated as 

4 an employee of the employer if no credit under 

5 this section is allowed to any other employer 

6 with respect to such individual. 

7 (c) QUALIFIED WORKPLACE RECONFIGURATION EX8 PENSES.—For purposes of this section— 

9 (1) IN GENERAL.—The term ‘‘qualified work10 place reconfiguration expenses’’ has the meaning 

11 given such term under section 2(d). 

12 (2) EXPENSES MUST BE FOR PROPERTY OR

13 SERVICES WITHIN THE UNITED STATES.—An 

14 amount paid or incurred by the employer shall not 

15 be taken into account as a qualified workplace re16 configuration expense if such amount is paid or in17 curred for— 

18 (A) equipment which is not for use in the 

19 United States, or 

20 (B) services which are not conducted in the 

21 United States. 

22 (d) OTHER RULES.— 

23 (1) AGGREGATION RULE.—All persons treated 

24 as a single employer under subsection (a) or (b) of 

25 section 52 of the Internal Revenue Code of 1986, or 


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1 subsection (m) or (o) of section 414 of such Code, 

2 shall be treated as one employer for purposes of this 

3 section. 

4 (2) DENIAL OF DOUBLE BENEFIT.—Rules simi5 lar to the rules of section 280C(a) of the Internal 

6 Revenue Code of 1986 shall apply for purposes of 

7 this section. 

8 (3) ELECTION NOT TO HAVE SECTION APPLY.— 

9 This section shall not apply with respect to any em10 ployer for any calendar quarter if such employer 

11 elects (at such time and in such manner as the Sec12 retary may prescribe) not to have this section apply. 

13 (4) COORDINATION WITH PAYCHECK PROTEC14 TION PROGRAM AND OTHER GOVERNMENT

15 GRANTS.— 

16 (A) PAYCHECK PROTECTION PROGRAM.— 

17 (i) IN GENERAL.—No credit shall be 

18 allowed under section with respect to any 

19 amounts taken into account in connection 

20 with a covered loan under section 7(a)(37) 

21 or 7A of the Small Business Act. 

22 (ii) APPLICATION WHERE LOANS NOT

23 FORGIVEN.—The Secretary, in consultation 

24 with the Administrator of the Small Busi25 ness Administration, shall issue guidance 


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1 providing that amounts taken into account 

2 during the covered period shall not fail to 

3 be treated as qualified wages under this 

4 section by reason of subparagraph (A) to 

5 the extent that— 

6 (I) a covered loan of the taxpayer 

7 under section 7(a)(37) of the Small 

8 Business Act is not forgiven by reason 

9 of a decision under section 

10 7(a)(37)(J) of such Act, or 

11 (II) a covered loan of the tax12 payer under section 7A of the Small 

13 Business Act is not forgiven by reason 

14 of a decision under section 7A(g) of 

15 such Act. 

16 (B) GOVERNMENT GRANTS.—No credit 

17 shall be allowed under this section with respect 

18 to any amount paid or incurred for property or 

19 services if such property or services are fi20 nanced with funding provided under a Federal, 

21 State, or local program a principal purpose of 

22 which is to provide subsidized financing for 

23 such property or services. 


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1 (e) APPLICABILITY.—This section shall apply to 

2 qualified workplace reconfiguration expenses paid or in3 curred after March 12, 2020, and before January 1, 2021. 

Æ 


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