II 117th CONGRESS 1st Session S. 537 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. Short title This Act may be cited as the Healthy Workplaces Act . 2. Healthy workplace payroll tax credit (a) In general In the case of an employer, there shall be allowed as a credit against applicable employment taxes for each calendar quarter an amount equal to 50 percent of the sum of— (1) the qualified employee protection expenses paid or incurred by the employer during such calendar quarter, (2) the qualified workplace reconfiguration expenses paid or incurred by the employer during such calendar quarter, and (3) the qualified education and training expenses paid or incurred by the employer during such calendar quarter. (b) Limitations and refundability (1) Overall dollar limitation on credit (A) In general The amount of the credit allowed under subsection (a) with respect to any employer for any calendar quarter shall not exceed the excess (if any) of— (i) the applicable dollar limit with respect to such employer for such calendar quarter, over (ii) the aggregate credits allowed under subsection (a) with respect to such employer for all preceding calendar quarters. (B) Applicable dollar limit (i) In general The term applicable dollar limit means, with respect to any employer for any calendar quarter, the sum of— (I) $1,000, multiplied by so much of the average number of full-time employees employed by such employer during such calendar quarter as does not exceed 500, plus (II) $750, multiplied by so much of such average number of full-time employees as exceeds 500 but does not exceed 1,000, plus (III) $500, multiplied by so much of such average number of full-time employees as exceeds 1,000 but does note exceed 2,500, plus (IV) $250, multiplied by so much of such average number of full-time employees as exceeds 2,500 but does not exceed 5,000, plus (V) $50, multiplied by so much of such average number of full-time employees as exceeds 5,000. (ii) Average number of full-time employees For purposes of this subsection, the average number of full time employees shall be determined in the same manner as such number is determined for purposes of determining whether an employer is an applicable large employer for purposes of section 4980H(c)(2) of the Internal Revenue Code of 1986, except that— (I) an individual shall not be taken into account as an employee for any period during which substantially all of the services provided by such individual as an employee are provided outside the United States, and (II) under regulations provided by the Secretary, an individual who performs services as an independent contractor shall be treated as an employee of the employer if no credit under this section is allowed to any other employer with respect to such individual. (2) Credit limited to employment taxes The credit allowed by subsection (a) with respect to any calendar quarter shall not exceed the applicable employment taxes (reduced by any credits allowed under subsections (e) and (f) of section 3111 of the Internal Revenue Code of 1986, sections 7001 and 7003 of the Families First Coronavirus Response Act, and section 2301 of the CARES Act) on the wages paid with respect to the employment of all the employees of the employer for such calendar quarter. (3) Refundability of excess credit (A) In general If the amount of the credit under subsection (a) exceeds the limitation of paragraph (2) for any calendar quarter, such excess shall be treated as an overpayment that shall be refunded under sections 6402(a) and 6413(b) of the Internal Revenue Code of 1986. (B) Treatment of payments For purposes of section 1324 of title 31, United States Code, any amounts due to the employer under this paragraph shall be treated in the same manner as a refund due from a credit provision referred to in subsection (b)(2) of such section. (c) Qualified employee protection expenses For purposes of this section, the term qualified employee protection expenses means amounts (other than any qualified workplace reconfiguration expense) paid or incurred by the employer for— (1) testing employees of the employer for COVID–19 (including on a periodic basis), (2) equipment (including masks, gloves, and disinfectants) and technology systems used— (A) to protect customers or employees of the employer from contracting COVID–19, or (B) to enhance social distancing and contact tracing. (3) cleaning products or services (whether provided by an employee of the taxpayer or a cleaning service provider) related to preventing the spread of COVID–19, and (4) such other equipment or technology which— (A) is recommended as part of the Federal government's recommendations for safe workplaces, and (B) the Secretary, in consultation with the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention, determines is necessary and appropriate for preventing COVID–19. (d) Qualified workplace reconfiguration expenses For purposes of this section— (1) In general The term qualified workplace reconfiguration expenses means amounts paid or incurred by the employer to evaluate, design, and reconfigure retail space, work areas, break areas, or other areas that employees or customers regularly use in the ordinary course of the employer’s trade or business if such evaluation, design, and reconfiguration— (A) has a primary purpose of preventing the spread of COVID–19, (B) is with respect to an area that is located in the United States and that is leased or owned by the employer, (C) is consistent with the ordinary use of the property immediately before the reconfiguration, (D) is commensurate with the risks faced by the employees or customers or is consistent with recommendations made by the Centers for Disease Control and Prevention or the Occupational Safety and Health Administration, (E) is completed pursuant to a reconfiguration plan and no comparable reconfiguration plan was in place before March 13, 2020, and (F) is completed before January 1, 2022. (2) Regulations The Secretary shall prescribe such regulations and other guidance as may be necessary or appropriate to carry out the purposes of this subsection, including guidance defining primary purpose and reconfiguration plan. (e) Qualified education and training expenses For purposes of this section— (1) In general The term qualified education and training expenses means amount paid or incurred to a qualified entity for the training employees on new business procedures related to preventing COVID–19 transmission. (2) Qualified entity The term qualified entity means any entity certified by the Secretary as an accredited training institution, an industry-recognized trade association, or a nonprofit entity qualified to provide training described in paragraph (1). (f) Other definitions For purposes of this section— (1) Applicable employment taxes The term applicable employment taxes means the following: (A) The taxes imposed under section 3111(a) of the Internal Revenue Code of 1986. (B) So much of the taxes imposed under section 3221(a) of such Code as are attributable to the rate in effect under section 3111(a) of such Code. (2) COVID– 19 Except where the context clearly indicates otherwise, any reference in this section to COVID–19 shall be treated as including a reference to the virus which causes COVID–19. (3) Secretary The term Secretary means the Secretary of the Treasury or the Secretary’s delegate. (4) Other terms Any term used in this section (other than subsection (b)(1)(B)) which is also used in chapter 21 or 22 of the Internal Revenue Code of 1986 shall have the same meaning as when used in such chapter. (g) Certain governmental employers This section shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing. (h) Special rules (1) Aggregation rule All persons treated as a single employer under subsection (a) or (b) of section 52 of the Internal Revenue Code of 1986, or subsection (m) or (o) of section 414 of such Code, shall be treated as one employer for purposes of this section. (2) Denial of double benefit Rules similar to the rules of section 280C(a) of the Internal Revenue Code of 1986 shall apply for purposes of this section. (3) Third-party payors Any credit allowed under this section shall be treated as a credit described in section 3511(d)(2) of such Code. (4) Election not to have section apply This section shall not apply with respect to any employer for any calendar quarter if such employer elects (at such time and in such manner as the Secretary may prescribe) not to have this section apply. (5) Coordination with paycheck protection program and other government grants (A) Paycheck protection program (i) In general No credit shall be allowed under section with respect to any amounts taken into account in connection with a covered loan under section 7(a)(37) or 7A of the Small Business Act. (ii) Application where loans not forgiven The Secretary, in consultation with the Administrator of the Small Business Administration, shall issue guidance providing that amounts taken into account during the covered period shall not fail to be treated as qualified wages under this section by reason of subparagraph (A) to the extent that— (I) a covered loan of the taxpayer under section 7(a)(37) of the Small Business Act is not forgiven by reason of a decision under section 7(a)(37)(J) of such Act, or (II) a covered loan of the taxpayer under section 7A of the Small Business Act is not forgiven by reason of a decision under section 7A(g) of such Act. (B) Government grants No credit shall be allowed under this section with respect to any amount paid or incurred for property or services if such property or services are financed with funding provided under a Federal, State, or local program a principal purpose of which is to provide subsidized financing for such property or services. (6) Expenses must be for property or services within the United States An amount paid or incurred by the employer shall not be taken into account as a qualified employee protection expense, a qualified workplace reconfiguration expense, or a qualified education and training expense if such amount is paid or incurred for— (A) equipment which is not for use in the United States, or (B) services which are not conducted in the United States. (i) Transfers to certain trust funds There are hereby appropriated to the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund established under section 201 of the Social Security Act ( 42 U.S.C. 401 ) and the Social Security Equivalent Benefit Account established under section 15A(a) of the Railroad Retirement Act of 1974 ( 45 U.S.C. 231n–1(a) ) amounts equal to the reduction in revenues to the Treasury by reason of this section (without regard to this subsection). Amounts appropriated by the preceding sentence shall be transferred from the general fund at such times and in such manner as to replicate to the extent possible the transfers which would have occurred to such Trust Fund or Account had this section not been enacted. (j) Treatment of deposits The Secretary shall waive any penalty under section 6656 of the Internal Revenue Code of 1986 for any failure to make a deposit of any applicable employment taxes if the Secretary determines that such failure was due to the reasonable anticipation of the credit allowed under this section. (k) Regulations and guidance The Secretary shall prescribe such regulations and other guidance as may be necessary or appropriate to carry out the purposes of this section, including— (1) with respect to the application of the credit under subsection (a) to third-party payors (including professional employer organizations, certified professional employer organizations, or agents under section 3504 of the Internal Revenue Code of 1986), regulations or other guidance allowing such payors to submit documentation necessary to substantiate the amount of the credit allowed under subsection (a), (2) regulations or other guidance with respect to amounts paid or incurred by an employer on behalf of the owner or lessee, or paid or incurred by such owner or lessee, of a property that is the subject of a management agreement or other similar legal arrangement, and (3) regulations or other guidance to prevent abusive transactions. (l) Application This section shall only apply to amounts paid or incurred after December 31, 2020, and before January 1, 2022. 3. Income tax credit for 2020 qualified workplace reconfiguration expenses (a) In general For purposes of section 38 of the Internal Revenue Code of 1986, in the case of an employer, the 2020 qualified workplace reconfiguration credit shall be treated as a credit listed at the end of subsection (b) of such section. For purposes of this subsection, the 2020 qualified workplace reconfiguration credit for any taxable year is an amount equal to 50 percent of the qualified workplace reconfiguration expenses paid or incurred by the employer during such taxable year. (b) Limitation (1) In general The amount of the credit allowed under subsection (a) with respect to any employer for any taxable year shall not exceed— (A) $3,000, multiplied by so much of the average number of full-time employees employed by such employer during such taxable year as does not exceed 500, plus (B) $0, multiplied by so much of such average number of full-time employees as exceeds 500. (2) Average number of full-time employees For purposes of this subsection, the average number of full time employees shall be determined in the same manner as such number is determined for purposes of determining whether an employer is an applicable large employer for purposes of section 4980H(c)(2) of the Internal Revenue Code of 1986, except that— (A) an individual shall not be taken into account as an employee for any period during which substantially all of the services provided by such individual as an employee are provided outside the United States, and (B) under regulations provided by the Secretary, an individual who performs services as an independent contractor shall be treated as an employee of the employer if no credit under this section is allowed to any other employer with respect to such individual. (c) Qualified workplace reconfiguration expenses For purposes of this section— (1) In general The term qualified workplace reconfiguration expenses has the meaning given such term under section 2(d). (2) Expenses must be for property or services within the United States An amount paid or incurred by the employer shall not be taken into account as a qualified workplace reconfiguration expense if such amount is paid or incurred for— (A) equipment which is not for use in the United States, or (B) services which are not conducted in the United States. (d) Other rules (1) Aggregation rule All persons treated as a single employer under subsection (a) or (b) of section 52 of the Internal Revenue Code of 1986, or subsection (m) or (o) of section 414 of such Code, shall be treated as one employer for purposes of this section. (2) Denial of double benefit Rules similar to the rules of section 280C(a) of the Internal Revenue Code of 1986 shall apply for purposes of this section. (3) Election not to have section apply This section shall not apply with respect to any employer for any calendar quarter if such employer elects (at such time and in such manner as the Secretary may prescribe) not to have this section apply. (4) Coordination with paycheck protection program and other government grants (A) Paycheck protection program (i) In general No credit shall be allowed under section with respect to any amounts taken into account in connection with a covered loan under section 7(a)(37) or 7A of the Small Business Act. (ii) Application where loans not forgiven The Secretary, in consultation with the Administrator of the Small Business Administration, shall issue guidance providing that amounts taken into account during the covered period shall not fail to be treated as qualified wages under this section by reason of subparagraph (A) to the extent that— (I) a covered loan of the taxpayer under section 7(a)(37) of the Small Business Act is not forgiven by reason of a decision under section 7(a)(37)(J) of such Act, or (II) a covered loan of the taxpayer under section 7A of the Small Business Act is not forgiven by reason of a decision under section 7A(g) of such Act. (B) Government grants No credit shall be allowed under this section with respect to any amount paid or incurred for property or services if such property or services are financed with funding provided under a Federal, State, or local program a principal purpose of which is to provide subsidized financing for such property or services. (e) Applicability This section shall apply to qualified workplace reconfiguration expenses paid or incurred after March 12, 2020, and before January 1, 2021.