Sec. 170102. Pandemic premium pay for essential workers
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Beginning 3 days after an essential work employer receives a grant under section 170104 from the Secretary of the Treasury, the essential work employer shall— be required to comply with subsections
(b)through (h); and be subject to the enforcement requirements of section 170105. An essential work employer receiving a grant under section 170104 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. 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— 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 for a highly-compensated essential worker, $5,000 reduced by employer payroll taxes with respect to such premium pay. 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. An essential work employer receiving a grant under section 170104 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). 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. An essential work employer receiving a grant under section 170104 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. 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). 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). Any premium pay under subsection
(b)paid to an essential worker under this section by an essential work employer receiving a grant under section 170104 shall be excluded from the amount of remuneration for work paid to the essential worker for purposes of— calculating the essential worker's eligibility for any wage-based benefits offered by the essential work employer; 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 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) ). In any case in which an essential worker of an essential work employer receiving a grant under section 170104 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)— 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 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. For purposes of this title, any payment made under this subsection shall be treated as a premium pay under subsection (b). 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. In the case of an essential work employer receiving a grant under section 170104 that is a covered employer described in section 170101(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 170104 and 170105, 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— 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; 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 ensure that individual client employers of such self-directed workers are provided notice of, and comply with, the prohibition under section 170105(b)(1)(B). In the case of an essential work employer that is a covered employer described in section 170101(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 170104 and 170105, 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. 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 170105(b)(2) with respect to violations of subparagraph
(A)or
(B)of section 170105(b)(1) that involve self-directed workers for which the requirements of this section and sections 170104 and 170105 are applied to a State Medicaid agency under paragraph
(1)or the VA Office of Geriatrics & Extended Care under paragraph (2). 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. 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: Compensation received by an employee under section 170102(b) of the COVID–19 Heroes Fund 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. . 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: Compensation received by an employee under section 170102(b) of the COVID–19 Heroes Fund 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. .
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Sec. 170102
Pandemic premium pay for essential workers
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