I 116th CONGRESS 2d Session H. R. 8349 IN THE HOUSE OF REPRESENTATIVES September 22, 2020 Mr. Van Drew introduced the following bill; which was referred to the Committee on Education and Labor , and in addition to the Committees on Ways and Means , Energy and Commerce , Veterans' Affairs , Oversight and Reform , and House Administration , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To provide hazard pay to frontline essential workers employed during the COVID–19 pandemic.

1. Short title; table of contents (a) Short title This Act may be cited as the Hazard Pay for Essential Workers Act of 2020 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Title I—Hazard Pay for Essential Workers Sec. 101. Definitions. Sec. 102. Pandemic premium pay for essential workers. Sec. 103. COVID–19 Hazard Fund. Sec. 104. COVID–19 Hazard Fund grants. Sec. 105. Enforcement and outreach. Sec. 106. Funding for the Department of the Treasury Office of Inspector General. Sec. 107. Authorization and appropriations. I Hazard Pay for Essential Workers 101. Definitions In this title: (1) COVID–19 public health emergency The term COVID–19 Public Health Emergency means the public health emergency first declared on January 31, 2020, by the Secretary of Health and Human Services under section 319 of the Public Health Service Act ( 42 U.S.C. 247d ) with respect to COVID–19. (2) Employee Except as provided in paragraph (3)(C)(iii), the term employee means an individual (not employed by an entity excluded from the definition of the term employer for purposes of this title under paragraph (3)(B)) who is— (A) an employee, as defined in section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ), except that a reference in such section 3(e) to an employer shall be considered to be a reference to an employer described in clauses (i)(I) and (ii) of paragraph (3)(A); (B) a State employee described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a)); or (C) an employee of a Tribal employer. (3) Employer (A) In general The term employer means, except as provided in subparagraph (B), a person who is— (i) (I) a covered employer, as defined in subparagraph (C); (II) an entity employing a State employee described in section 304(a) of the Government Employee Rights Act of 1991; or (III) a Tribal employer; and (ii) engaged in commerce (including government), or an industry or activity affecting commerce (including government). (B) Exclusion of executive, legislative, and judicial entities (i) In general The term employer does not include— (I) each agency, office, or other establishment in the executive, legislative, or judicial branch of the Federal Government including those listed in clause (ii), except, only as provided in section 102(g)(2), the VA Office of Geriatrics & Extended Care of the Veterans Health Administration; (II) the United States Postal Service or the Postal Regulatory Commission; or (III) a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces. (ii) Inclusions The agencies, offices, are other establishments listed in this clause include— (I) each agency, office, or other establishment in the executive, legislative, or judicial branch of the Federal Government, including— (aa) an Executive agency, as that term is defined in section 105 of title 5, United States Code; (bb) a military department, as that term is defined in section 102 of title 5, United States Code; (cc) the Federal Aviation Administration; (dd) the Transportation Security Administration; (ee) the Department of Veterans Affairs; and (ff) the Government Accountability Office; (II) the District of Columbia courts and the District of Columbia Public Defender Service; and (III) (aa) an Indian tribe or tribal organization carrying out a contract or compact under the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5301 et seq.); (bb) an Indian tribe or tribal organization that receives a grant under the Tribally Controlled Schools Act of 1988 ( 25 U.S.C. 2501 et seq.); and (cc) an urban Indian organization that receives a grant or carries out a contract under title V of the Indian Health Care Improvement Act ( 25 U.S.C. 1651 et seq.). (C) Covered employer (i) In general In subparagraph (A)(i)(I), the term covered employer — (I) means any person engaged in commerce (including government), or in any industry or activity affecting commerce (including government), who employs 1 or more employees; (II) includes— (aa) any person who acts directly or indirectly in the interest of (within the meaning of section 3(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) )) an employer in relation to any of the employees of such employer; and (bb) any successor in interest of an employer; (III) except as provided in subparagraph (B), includes any public agency, as defined in section 3(x) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(x) ); (IV) includes any person described in subclause (I) who conducts business as a not-for-profit organization; (V) includes— (aa) an entity or person that contracts directly with a State, locality, Tribal government, or the Federal Government, to provide care (which may include items and services) through employees of such entity or person to individuals under the Medicare program under title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq.), under a State Medicaid plan under title XIX of such Act ( 42 U.S.C. 1396 et seq.) or under a waiver of such plan, or under any other program established or administered by a State, locality, Tribal government, or the Federal Government; (bb) a subcontractor of an entity or person described in item (aa); (cc) an individual client (or a representative on behalf of an individual client), an entity, or a person, that employs an individual to provide care (which may include items and services) to the individual client under a self-directed service delivery model through a program established or administered by a State, locality, Tribal government, or the Federal Government; or (dd) an individual client (or a representative on behalf of an individual client) that, on their own accord, employs an individual to provide care (which may include items and services) to the individual client using the individual client's own finances; (VI) includes the United States Postal Service; (VII) includes a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces; and (VIII) includes, only with respect to section 102(g)(2), the VA Office of Geriatrics & Extended Care of the Veterans Health Administration. (ii) Public agency For purposes of this title, a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce. (iii) Definition of employee For purposes of clause (i), the term employee has the meaning given such term in section 3(e), except such term does not include any individual employed by entity excluded from the definition of the term employer for purposes of this title under subparagraph (B). (D) Predecessors Any reference in this paragraph to an employer shall include a reference to any predecessor of such employer. (E) Definition of commerce For purposes of this paragraph, the terms commerce and industry or activity affecting commerce — (i) mean any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce; (ii) include commerce and any industry affecting commerce, as such terms are defined in paragraphs (1) and (3) of section 501 of the Labor Management Relations Act, 1947 ( 29 U.S.C. 142(1) and (3)); and (iii) include commerce, as defined in section 3(b) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(b) ) and as described in section 2(a) of such Act ( 29 U.S.C. 202(a) ). (4) Employer payroll taxes The term employer payroll taxes means— (A) taxes imposed under sections 3111(b), 3221(a) (but only to the extent attributable to the portion of such tax attributable to the tax imposed by section 3111(b)), 3221(b), and 3301 of the Internal Revenue Code of 1986; and (B) taxes imposed by a State or local government on an employer with respect to amounts paid by such employer for work by employees. (5) Essential work The term essential work means any work that— (A) is performed during the period that begins on January 27, 2020, and ends 60 days after the last day of the COVID–19 Public Health Emergency; (B) is not performed while teleworking from a residence; (C) involves— (i) regular in-person interactions with— (I) patients; (II) the public; or (III) coworkers of the individual performing the work; or (ii) regular physical handling of items that were handled by, or are to be handled by— (I) patients; (II) the public; or (III) coworkers of the individual performing the work; and (D) is in any of the following areas: (i) First responder work, in the public sector or private sector, including services in response to emergencies that have the potential to cause death or serious bodily injury, such as police, fire, emergency medical, protective, child maltreatment, domestic violence, and correctional services (including activities carried out by employees in fire protection activities, as defined in section 3(y) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(y) ) and activities of law enforcement officers, as defined in section 1204(6) of the Omnibus Crime Control and Safe Streets Act of 1968 ( 34 U.S.C. 10284(6) ). (ii) Health care work physically provided in inpatient settings (including hospitals and other inpatient post-acute care settings such as nursing homes, inpatient rehabilitation facilities, and other related settings) and other work physically performed in such inpatient settings that supports or is in furtherance of such health care work physically provided in inpatient settings. (iii) Health care work physically provided in outpatient settings (including at physician offices, community health centers, rural health clinics and other clinics, hospital outpatient departments, freestanding emergency departments, ambulatory surgical centers, and other related settings), and other work physically performed in such inpatient settings that supports or is in furtherance of such health care work physically provided in outpatient settings. (iv) Pharmacy work, physically performed in pharmacies, drug stores, or other retail facilities specializing in medical goods and supplies. (v) Any work physically performed in a facility that performs medical testing and diagnostic services, including laboratory processing, medical testing services, or related activities. (vi) Home and community-based work, including home health care, residential care, assistance with activities of daily living, and any services provided by direct care workers (as defined in section 799B of the Public Health Service Act ( 42 U.S.C. 295p )), personal care aides, job coaches, or supported employment providers, and any other provision of care to individuals in their homes by direct service providers, personal care attendants, and home health aides. (vii) Biomedical research regarding SARS–CoV–2 and COVID–19 that involves the handling of hazardous materials such as COVID–19 samples. (viii) Behavioral health work requiring physical interaction with individuals, including mental health services and substance use disorder prevention, treatment, and recovery services. (ix) Nursing care and residential care work physically provided in a facility. (x) Family care, including child care services, in-home child care services such as nanny services, and care services provided by family members to other family members. (xi) Social services work, including social work, case management, social and human services, child welfare, family services, shelter and services for people who have experienced intimate partner violence or sexual assault, services for individuals who are homeless, child services, community food and housing services, and other emergency social services. (xii) Public health work conducted at State, local, territorial, and Tribal government public health agencies, including epidemiological activities, surveillance, contact tracing, data analysis, statistical research, health education, and other disease detection, prevention, and response methods. (xiii) Tribal vital services, as defined by the Commissioner of the Administration for Native Americans in consultation with Tribal governments and after conferring with urban Indian organizations. (xiv) Grocery work physically performed at grocery stores, supermarkets, convenience stores, corner stores, drug stores, retail facilities specializing in medical goods and supplies, bodegas, and other locations where individuals purchase non-prepared food items. (xv) Restaurant work, including carry-out, drive-thru, or food delivery work, requiring physical interaction with individuals or food products. (xvi) Food production work involving the physical interaction with food products, including all agricultural work, farming, fishing, forestry, ranching, processing, canning, slaughtering, packaging, baking, butchering, and other food production work, such as any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(f) ), or section 3121(g) of the Internal Revenue Code of 1986, and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state. (xvii) Transportation work, including— (I) any services in public transportation, as defined in section 5302(14) of title 49, United States Code; (II) any private transportation of people, such as transportation provided by air, rail, bus, taxicab, personal car or truck, non-motorized vehicle, or otherwise, including all services performed by individuals working in or on such vehicles, vehicle depots, or transit facilities; (III) any private transportation of goods in bulk, including transportation via heavy or light truck, rail, air, or otherwise; (IV) any public or private transportation of mail or packages; (V) any private transportation of food or other goods to individuals, including in a personal car or truck, non-motorized vehicle, or otherwise; (VI) any services in passenger rail transportation, including commuter rail, intercity passenger rail, or Amtrak, including services performed by employees of contractors of such entities; (VII) any services in the transportation of persons, property, or mail by an aircraft of an air carrier conducting operations under part 121 of title 14, Code of Federal Regulations (or successor regulations), or a foreign air carrier within, to, or from the United States, either on board an aircraft or on the ground at an airport, including services performed by employees of contractors of air carriers, or foreign air carriers, as described in section 4111(3) of the CARES Act ( Public Law 116–136 ); (VIII) any services as an aircraft mechanic or technician who performs maintenance, repair, or overhaul work on an aircraft of an air carrier conducting operations under such part 121 or foreign air carrier within the United States; (IX) services as maritime workers who qualify as seamen under section 10101(3) of title 46, United States Code, and other maritime employees including— (aa) longshoremen, harbor workers, and shipbuilders covered under section 2(3) of the Longshore and Harbor Workers' Compensation Act ( 33 U.S.C. 902(3) ) involved in the transportation of merchandise or passengers by water; and (bb) shipbuilders and ship repairers who are working for an employer performing shipbuilding or ship repair work under contract or subcontract to the Departments of Defense, Energy, or Homeland Security for military or other national security purposes; and (X) services as maritime transportation workers supporting or enabling transportation functions, including such services as— (aa) barge workers, tug operators, and port and facility security personnel; (bb) marine dispatchers; and (cc) workers who repair and maintain marine vessels (including the equipment and infrastructure that enables operations that encompass movement of cargo and passengers). (xviii) Work physically performed in a warehouse or other facility in warehousing (including all services performed by individuals picking, sorting, packing, and shipping in warehouses), storage, distribution, or call center support facilities, and other essential operational support functions that are necessary to accept, store, and process goods, and that facilitate the goods' transportation and delivery. (xix) Cleaning work and building maintenance work physically performed on the grounds of a facility, including all custodial or janitorial services, security services, and repair and maintenance services. (xx) Work in the collection, removal, transport, storage, or disposal of residential, industrial, or commercial solid waste and recycling, including services provided by individuals who drive waste or recycling trucks, who pick up waste or recycling from residential or commercial locations, or who work at waste or recycling centers or landfills. (xxi) Work in the gathering, processing, disseminating, and delivery of news and information that serves the public interest to the public through mass media, including television, radio, and newspapers. (xxii) Any work performed by an employee of a State, locality, or Tribal government, that is determined to be essential work by the highest authority of such State, locality, or Tribal government. (xxiii) Educational work, school nutrition work, and other work required to operate a school facility, including early childhood programs, preschool programs, elementary and secondary education, and higher education. (xxiv) Laundry work, including work in laundromats, laundry service companies, and dry cleaners. (xxv) Elections work physically performed at polling places or otherwise amongst the public, including public-sector elections personnel and private-sector elections personnel. (xxvi) Hazardous materials management, response, and cleanup work associated with any other essential work covered under this paragraph, including health care waste (including medical, pharmaceuticals, and medical material production), and testing operations (including laboratories processing test kits). (xxvii) Disinfection work for all facilities and modes of transportation involved in other essential work covered under this paragraph. (xxviii) Work in critical clinical research, development, and testing necessary for COVID–19 response that involves physical interaction with hazardous materials, such as samples of COVID–19. (xxix) Work in mortuary, funeral, cremation, burial, cemetery, and related services. (xxx) Work requiring physical interactions with patients in physical therapy, occupational therapy, speech-language pathology, and respiratory therapy and other therapy services. (xxxi) Dental care work requiring physical interaction with patients. (xxxii) Work performed by employees of the U.S. Postal Service. (xxxiii) Work at hotel and commercial lodging facilities that are used for COVID–19 mitigation and containment measures. (xxxiv) Work installing or repairing a telecommunications line or equipment. (6) Essential worker The term essential worker means an individual, whose work and duties include essential work, and who is— (A) an employee of an employer; or (B) an individual performing any services or labor for remuneration for an employer, regardless of whether the individual is classified as an independent contractor by the employer. (7) Essential work employer The term essential work employer means an employer who employs, or provides remuneration for services or labor to, an essential worker. (8) FLSA terms The terms employ , person , regular rate , and State have the meanings given the terms in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). (9) Highly-compensated essential worker The term highly-compensated essential worker means an essential worker who is paid the equivalent of $200,000 or more per year by an essential work employer. (10) Large essential work employer The term large essential work employer means an essential work employer who has more than 500 individuals who are employed by the employer or are otherwise providing services or labor for remuneration for the employer. (11) Self-directed care worker The term self-directed care worker means an individual employed to provide care (which may include items and services) to an individual client— (A) under a self-directed service delivery model through a program established or administered by a State, locality, Tribal government, or the Federal Government; or (B) on the individual client's own accord and using the individual client's own finances. (12) Tribal employer The term Tribal employer means— (A) any Tribal government, a subdivision of a Tribal government (determined in accordance with section 7871(d) of the Internal Revenue Code), or an agency or instrumentality of a Tribal government or subdivision thereof; (B) any Tribal organization (as the term tribal organization is defined in section 4(l) of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304(l) )); (C) any corporation if more than 50 percent (determined by vote and value) of the outstanding stock of such corporation is owned, directly or indirectly, by any entity described in subparagraph (A) or (B); or (D) any partnership if more than 50 percent of the value of the capital and profits interests of such partnership is owned, directly or indirectly, by any entity described in subparagraph (A) or (B). (13) Tribal government The term Tribal government means the recognized governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, community, component band, or component reservation individually identified (including parenthetically) in the list published most recently as of the date of enactment of this Act pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 ( 25 U.S.C. 5131 ). (14) Work The term work means employment by, or engagement in providing labor or services for, an employer. 102. Pandemic premium pay for essential workers (a) In general Beginning 3 days after an essential work employer receives a grant under section 104 from the Secretary of the Treasury, the essential work employer shall— (1) be required to comply with subsections (b) through (h); and (2) be subject to the enforcement requirements of section 105. (b) Pandemic premium pay (1) In general An essential work employer receiving a grant under section 104 shall, in accordance with this subsection, provide each essential worker of the essential work employer with premium pay at a rate equal to $13 for each hour of work performed by the essential worker for the employer from January 27, 2020, until the date that is 60 days after the last day of the COVID–19 Public Health Emergency. (2) Maximum amounts The total amount of all premium pay under this subsection that an essential work employer is required to provide to an essential worker, including through any retroactive payment under paragraph (3), shall not exceed— (A) for an essential worker who is not a highly-compensated essential worker, $10,000 reduced by employer payroll taxes with respect to such premium pay; or (B) for a highly-compensated essential worker, $5,000 reduced by employer payroll taxes with respect to such premium pay. (3) Retroactive payment For all work performed by an essential worker during the period from January 27, 2020, through the date on which the essential work employer of the worker receives a grant under this title, the essential work employer shall use a portion of the amount of such grant to provide such worker with premium pay under this subsection for such work at the rate provided under paragraph (1). Such amount shall be provided to the essential worker as a lump sum in the next paycheck (or other payment form) that immediately follows the receipt of the grant by the essential work employer. In any case where it is impossible for the employer to arrange for payment of the amount due in such paycheck (or other payment form), such amounts shall be paid as soon as practicable, but in no event later than the second paycheck (or other payment form) following the receipt of the grant by the essential work employer. (4) No employer discretion An essential work employer receiving a grant under section 104 shall not have any discretion to determine which portions of work performed by an essential worker qualify for premium pay under this subsection, but shall pay such premium pay for any increment of time worked by the essential worker for the essential work employer up to the maximum amount applicable to the essential worker under paragraph (2). (c) Prohibition on reducing compensation and displacement (1) In general Any payments made to an essential worker as premium pay under subsection (b) shall be in addition to all other compensation, including all wages, remuneration, or other pay and benefits, that the essential worker otherwise receives from the essential work employer. (2) Reduction of compensation An essential work employer receiving a grant under section 104 shall not, during the period beginning on the date of enactment of this Act and ending on the date that is 60 days after the last day of the COVID–19 Public Health Emergency, reduce or in any other way diminish, any other compensation, including the wages, remuneration, or other pay or benefits, that the essential work employer provided to the essential worker on the day before the date of enactment of this Act. (3) Displacement An essential work employer shall not take any action to displace an essential worker (including partial displacement such as a reduction in hours, wages, or employment benefits) for purposes of hiring an individual for an equivalent position at a rate of compensation that is less than is required to be provided to an essential worker under paragraph (2). (d) Demarcation from other compensation The amount of any premium pay paid under subsection (b) shall be clearly demarcated as a separate line item in each paystub or other document provided to an essential worker that details the remuneration the essential worker received from the essential work employer for a particular period of time. If any essential worker does not otherwise regularly receive any such paystub or other document from the employer, the essential work employer shall provide such paystub or other document to the essential worker for the duration of the period in which the essential work employer provides premium pay under subsection (b). (e) Exclusion from wage-Based calculations Any premium pay under subsection (b) paid to an essential worker under this section by an essential work employer receiving a grant under section 104 shall be excluded from the amount of remuneration for work paid to the essential worker for purposes of— (1) calculating the essential worker's eligibility for any wage-based benefits offered by the essential work employer; (2) computing the regular rate at which such essential worker is employed under section 7 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207 ); and (3) determining whether such essential worker is exempt from application of such section 7 under section 13(a)(1) of such Act ( 29 U.S.C. 213(a)(1) ). (f) Essential worker death (1) In general In any case in which an essential worker of an essential work employer receiving a grant under section 104 exhibits symptoms of COVID–19 and dies, the essential work employer shall pay as a lump sum to the next of kin of the essential worker for premium pay under subsection (b)— (A) for an essential worker who is not a highly-compensated essential worker, the amount determined under subsection (b)(2)(A) minus the total amount of any premium pay the worker received under subsection (b) prior to the death; or (B) for a highly-compensated essential worker, the amount determined under subsection (b)(2)(B) minus the amount of any premium pay the worker received under subsection (b) prior to the death. (2) Treatment of lump sum payments (A) Treatment as premium pay For purposes of this title, any payment made under this subsection shall be treated as a premium pay under subsection (b). (B) Treatment for purposes of Internal Revenue Code of 1986 For purposes of the Internal Revenue Code of 1986, any payment made under this subsection shall be treated as a payment for work performed by the essential worker. (g) Application to self-Directed care workers funded through Medicaid or the Veteran-Directed Care Program (1) Medicaid In the case of an essential work employer receiving a grant under section 104 that is a covered employer described in section 101(3)(C)(i)(V) who, under a State Medicaid plan under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq.) or under a waiver of such plan, has opted to receive items or services using a self-directed service delivery model, the preceding requirements of this section, including the requirements to provide premium pay under subsection (b) (including a lump sum payment in the event of an essential worker death under subsection (f)) and the requirements of sections 104 and 105, shall apply to the State Medicaid agency responsible for the administration of such plan or waiver with respect to self-directed care workers employed by that employer. In administering payments made under this title to such self-directed care workers on behalf of such employers, a State Medicaid agency shall— (A) exclude and disregard any payments made under this title to such self-directed workers from the individualized budget that applies to the items or services furnished to the individual client employer under the State Medicaid plan or waiver; (B) to the extent practicable, administer and provide payments under this title directly to such self-directed workers through arrangements with entities that provide financial management services in connection with the self-directed service delivery models used under the State Medicaid plan or waiver; and (C) ensure that individual client employers of such self-directed workers are provided notice of, and comply with, the prohibition under section 105(b)(1)(B). (2) Veteran-Directed Care Program In the case of an essential work employer that is a covered employer described in section 101(3)(C)(i)(V) who is a veteran participating in the Veteran Directed Care program administered by the VA Office of Geriatrics & Extended Care of the Veterans Health Administration, the preceding requirements of this section and sections 104 and 105, shall apply to such VA Office of Geriatrics & Extended Care with respect to self-directed care workers employed by that employer. Paragraph (1) of this subsection shall apply to the administration by the VA Office of Geriatrics & Extended Care of payments made under this title to such self-directed care workers on behalf of such employers in the same manner as such requirements apply to State Medicaid agencies. (3) Penalty enforcement The Secretary of Labor shall consult with the Secretary of Health and Human Services and the Secretary of Veterans Affairs regarding the enforcement of penalties imposed under section 105(b)(2) with respect to violations of subparagraph (A) or (B) of section 105(b)(1) that involve self-directed workers for which the requirements of this section and sections 104 and 105 are applied to a State Medicaid agency under paragraph (1) or the VA Office of Geriatrics & Extended Care under paragraph (2). (h) Interaction with Stafford Act Nothing in this section shall nullify, supersede, or otherwise change a State’s ability to seek reimbursement under section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5170b ) for the costs of premium pay based on pre-disaster labor policies for eligible employees. (i) Calculation of paid leave under FFCRA and FMLA (1) Families First Coronavirus Response Act Section 5110(5)(B) of the Families First Coronavirus Response Act ( 29 U.S.C. 2601 note) is amended by adding at the end the following: (iii) Pandemic premium pay Compensation received by an employee under section 102(b) of the Hazard Pay for Essential Workers Act of 2020 shall be included as remuneration for employment paid to the employee for purposes of computing the regular rate at which such employee is employed. . (2) Family and Medical Leave Act of 1993 Section 110(b)(2)(B) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2620(b)(2)(B) ) is amended by adding at the end the following: (iii) Pandemic premium pay Compensation received by an employee under section 102(b) of the Hazard Pay for Essential Workers Act of 2020 shall be included as remuneration for employment paid to the employee for purposes of computing the regular rate at which such employee is employed. . 103. COVID–19 Hazard Fund (a) Establishment There is established in the Treasury of the United States a fund to be known as the COVID–19 Hazard Fund (referred to in this section as the Fund ), consisting of amounts appropriated to the fund under section 107. (b) Fund administration The Fund shall be administered by the Secretary of the Treasury. (c) Use of funds Amounts in the Fund shall be available to the Secretary of the Treasury for carrying out section 104. 104. COVID–19 Hazard Fund grants (a) Grants (1) For pandemic premium pay The Secretary of the Treasury shall, subject to the availability of amounts provided in this title, award a grant to each essential work employer that applies for a grant, in accordance with this section, for the purpose of providing premium pay to essential workers under section 102(b), including amounts paid under section 102(f). (2) Eligibility (A) Eligible employers generally Any essential work employer shall be eligible for a grant under paragraph (1). (B) Self-directed care workers A self-directed care worker employed by an essential work employer other than an essential work employer described in section 102(g), shall be eligible to apply for a grant under paragraph (1) in the same manner as an essential work employer. Such a worker shall provide premium pay to himself or herself in accordance with this section, including the recordkeeping and refund requirements of this section. (b) Amount of grants (1) In general The maximum amount available for making a grant under subsection (a)(1) to an essential work employer shall be equal to the sum of— (A) the amount obtained by multiplying $10,000 by the number of essential workers the employer certifies, in the application submitted under subsection (c)(1), as employing, or providing remuneration to for services or labor, who are paid wages or remuneration by the employer at a rate that is less than the equivalent of $200,000 per year; and (B) the amount obtained by multiplying $5,000 by the number of highly-compensated essential workers the employer certifies, in the application submitted under subsection (c)(1), as employing, or providing remuneration to for services or labor, who are paid wages or remuneration by the employer at a rate that is equal to or greater than the equivalent of $200,000 per year. (2) No partial grants The Secretary of the Treasury shall not award a grant under this section in an amount less than the maximum described in paragraph (1). (c) Grant application and disbursal (1) Application Any essential work employer seeking a grant under subsection (a)(1) shall submit an application to the Secretary of the Treasury at such time, in such manner, and complete with such information as the Secretary may require. (2) Notice and certification (A) In general The Secretary of the Treasury shall, within 15 days after receiving a complete application from an essential work employer eligible for a grant under this section— (i) notify the employer of the Secretary’s findings with respect to the requirements for the grant; and (ii) (I) if the Secretary finds that the essential work employer meets the requirements under this section for a grant under subsection (a), provide a certification to the employer— (aa) that the employer has met such requirements; or (bb) of the amount of the grant payment that the Secretary has determined the employer shall receive based on the requirements under this section; or (II) if the Secretary finds that the essential work employer does not meet the requirements under this section for a grant under subsection (a), provide a notice of denial stating the reasons for the denial and provide an opportunity for administrative review by not later than 10 days after the denial. (B) Transfer Not later than 7 days after making a certification under subparagraph (A)(ii) with respect to an essential work employer, the Secretary of the Treasury shall make the appropriate transfer to the employer of the amount of the grant. (d) Use of funds (1) In general An essential work employer receiving a grant under this section shall use the amount of the grant solely for the following purposes: (A) Providing premium pay under section 102(b) to essential workers in accordance with the requirements for such payments under such section, including providing payments described in section 102(f) to the next of kin of essential workers in accordance with the requirements for such payments under such section. (B) Paying employer payroll taxes with respect to premium pay amounts described in subparagraph (A), including such payments described in section 102(f). Each dollar of a grant received by an essential work employer under this title shall be used as provided in subparagraph (A) or (B) or returned to the Secretary of the Treasury. (2) No other uses authorized An essential work employer who uses any amount of a grant for a purpose not required under paragraph (1) shall be— (A) considered to have misused funds in violation of section 102; and (B) subject to the enforcement and remedies provided under section 105. (3) Refund (A) In general If an essential work employer receives a grant under this section and, for any reason, does not provide every dollar of such grant to essential workers in accordance with the requirements of this title, then the employer shall refund any such dollars to the Secretary of the Treasury not later than June 30, 2021. Any amounts returned to the Secretary shall be deposited into the Fund and be available for any additional grants under this section. (B) Requirement for not reducing compensation An essential work employer who is required to refund any amount under this paragraph shall not reduce or otherwise diminish an eligible worker’s compensation or benefits in response to or otherwise due to such refund. (e) Recordkeeping An essential work employer that receives a grant under this section shall— (1) maintain records, including payroll records, demonstrating how each dollar of funds received through the grant were provided to essential workers; and (2) provide such records to the Secretary of the Treasury or the Secretary of Labor upon the request of either such Secretary. (f) Recoupment In addition to all other enforcement and remedies available under this title or any other law, the Secretary of the Treasury shall establish a process under which the Secretary shall recoup the amount of any grant awarded under subsection (a)(1) if the Secretary determines that the essential work employer receiving the grant— (1) did not provide all of the dollars of such grant to the essential workers of the employer; (2) did not, in fact, have the number of essential workers certified by the employer in accordance with subparagraphs (A) and (B) of subsection (b)(1); (3) did not pay the essential workers for the number of hours the employer claimed to have paid; or (4) otherwise misused funds or violated this title. (g) Special rule for certain employees of Tribal employers Essential workers of Tribal employers who receive funds under title II shall not be eligible to receive funds from grants under this section. (h) Tax treatment (1) Exclusion from income For purposes of the Internal Revenue Code of 1986, any grant received by an essential work employer under this section shall not be included in the gross income of such essential work employer. (2) Denial of double benefit (A) In general In the case of an essential work employer that receives a grant under this section— (i) amounts paid under subsection (b) or (f) of section 102 shall not be taken into account as wages for purposes of sections 41, 45A, 51, or 1396 of the Internal Revenue Code of 1986 or section 2301 of the CARES Act ( Public Law 116–136 ); and (ii) any deduction otherwise allowable under such Code for applicable payments during any taxable year shall be reduced (but not below zero) by the excess (if any) of— (I) the aggregate amounts of grants received under this section; over (II) the sum of any amount refunded under subsection (d) plus the aggregate amount of applicable payments made for all preceding taxable years. (B) Applicable payments For purposes of this paragraph, the term applicable payments means amounts paid as premium pay under subsection (b) or (f) of section 102 and amounts paid for employer payroll taxes with respect to such amounts. (C) Aggregation rule Rules similar to the rules of subsections (a) and (b) of section 52 of the Internal Revenue Code of 1986 shall apply for purposes of this section. (3) Information reporting The Secretary of the Treasury shall submit to the Commissioner of Internal Revenue statements containing— (A) the name and tax identification number of each essential work employer receiving a grant under this section; (B) the amount of such grant; and (C) any amounts refunded under section (d)(3). (i) Reports (1) In general Not later than 30 days after obligating the last dollar of the funds appropriated under this title, the Secretary of the Treasury shall submit a report, to the Committees of Congress described in paragraph (2), that— (A) certifies that all funds appropriated under this title have been obligated; and (B) indicates the number of pending applications for grants under this section that will be rejected due to the lack of funds. (2) Committees of Congress The Committees of Congress described in this paragraph are— (A) the Committee on Ways and Means of the House of Representatives; (B) the Committee on Education and Labor of the House of Representatives; (C) the Committee on Finance of the Senate; and (D) the Committee on Health, Education, Labor, and Pensions of the Senate. 105. Enforcement and outreach (a) Duties of Secretary of Labor The Secretary of Labor shall— (1) have authority to enforce the requirements of section 102, in accordance with subsections (b) through (e); (2) conduct outreach as described in subsection (f); and (3) coordinate with the Secretary of the Treasury as needed to carry out the Secretary of Labor's responsibilities under this section. (b) Prohibited acts, penalties, and enforcement (1) Prohibited acts It shall be unlawful for a person to— (A) violate any provision of section 102 applicable to such person; or (B) discharge or in any other manner discriminate against any essential worker because such essential worker has filed any complaint or instituted or caused to be instituted any proceeding under or related to this title, or has testified or is about to testify in any such proceeding. (2) Enforcement and penalties (A) Premium pay violations A violation described in paragraph (1)(A) shall be deemed a violation of section 7 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207 ) and unpaid amounts required under this section shall be treated as unpaid overtime compensation under such section 7 for the purposes of sections 15 and 16 of such Act ( 29 U.S.C. 215 and 216). (B) Discharge or discrimination A violation of paragraph (1)(B) shall be deemed a violation of section 15(a)(3) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a)(3) ). (c) Investigation (1) In general To ensure compliance with the provisions of section 102, including any regulation or order issued under that section, the Secretary of Labor shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(a) ). For the purposes of any investigation provided for in this subsection, the Secretary of Labor shall have the subpoena authority provided for under section 9 of such Act ( 29 U.S.C. 209 ). (2) State agencies The Secretary of Labor may, for the purpose of carrying out the functions and duties under this section, utilize the services of State and local agencies in accordance with section 11(b) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(b) ). (d) Essential worker enforcement (1) Right of action An action alleging a violation of paragraph (1) or (2) of subsection (b) may be maintained against an essential work employer receiving a grant under section 104 in any Federal or State court of competent jurisdiction by one or more essential workers or their representative for and on behalf of the essential workers, or the essential workers and others similarly situated, in the same manner, and subject to the same remedies (including attorney's fees and costs of the action), as an action brought by an employee alleging a violation of section 7 or 15(a)(3), respectively, of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207 , 215(a)(3)). (2) No waiver In an action alleging a violation of paragraph (1) or (2) of subsection (b) brought by one or more essential workers or their representative for and on behalf of the persons as described in paragraph (1), to enforce the rights in section 102, no court of competent jurisdiction may grant the motion of an essential work employer receiving a grant under section 104 to compel arbitration, under chapter 1 of title 9, United States Code, or any analogous State arbitration statute, of the claims involved. An essential worker’s right to bring an action described in paragraph (1) or subsection (b)(2)(A) on behalf of similarly situated essential workers to enforce such rights may not be subject to any private agreement that purports to require the essential workers to pursue claims on an individual basis. (e) Recordkeeping An essential work employer receiving a grant under section 104 shall make, keep, and preserve records pertaining to compliance with section 102 in accordance with section 11(c) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(c) ) and in accordance with regulations prescribed by the Secretary of Labor. (f) Outreach and education Out of amounts appropriated to the Secretary of the Treasury under section 107 for a fiscal year, the Secretary of the Treasury shall transfer to the Secretary of Labor, $3,000,000, of which the Secretary of Labor shall use— (1) $2,500,000 for outreach to essential work employers and essential workers regarding the premium pay under section 102; and (2) $500,000 to implement an advertising campaign encouraging large essential work employers to provide the same premium pay provided for by section 102 using the large essential work employers’ own funds and without utilizing grants under this title. (g) Clarification of enforcing official Nothing in the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16a et seq.) or section 3(e)(2)(C) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e)(2)(C) ) shall be construed to prevent the Secretary of Labor from carrying out the authority of the Secretary under this section in the case of State employees described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a)). 106. Funding for the Department of the Treasury Office of Inspector General There is appropriated, out of money in the Treasury not otherwise appropriated, to the Office of the Inspector General of the Department of the Treasury, $1,000,000 to carry out audits, investigations, and other oversight activities authorized under the Inspector General Act of 1978 (5 U.S.C. App.) that are related to the provisions of, and amendments made by, this title, to remain available until December 31, 2022. 107. Authorization and appropriations There is authorized to be appropriated, and there is hereby appropriated, $180,000,000,000 to carry out this title, to remain available until expended.