Sec. 7. Pandemic Duty Differential

2,591 words·~12 min read·/bill/116/hr/7341/ih/section-7

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

In this section— the term agency — means— each agency, office, or other establishment in the executive, legislative, or judicial branch of the Federal Government, including— an Executive agency, as that term is defined in section 105 of title 5, United States Code; a military department, as that term is defined in section 102 of title 5, United States Code; the Federal Aviation Administration; the Transportation Security Administration; the Department of Veterans Affairs; the United States Postal Service and the Postal Regulatory Commission; and the Government Accountability Office; the District of Columbia courts and the District of Columbia Public Defender Service; and 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.); 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 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.); and does not include a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces; the term covered duty — means duty that requires— an employee to have regular or routine contact with the public; or the reporting of an employee to a worksite at which— social distancing is not possible, consistent with the regularly assigned duties of the position of the employee; and other preventative measures with respect to COVID–19 are not available; and does not include duty that an employee performs while teleworking from a residence; the term covered period means the period beginning on the date on which the Secretary of Health and Human Services declared a public health emergency under section 319 of the Public Health Service Act ( 42 U.S.C. 247d ) with respect to COVID–19 and ending on the date that is 60 days after the date on which that public health emergency terminates; the term employee — means an employee of an agency; includes— any employee of an agency who occupies a position within the General Schedule under subchapter III of chapter 53 of title 5, United States Code; any employee of an agency whose pay is fixed and adjusted from time to time in accordance with prevailing rates under subchapter IV of chapter 53 of title 5, United States Code, or by a wage board or similar administrative authority serving the same purpose; an official or employee of an Indian tribe, tribal organization, or urban Indian organization described in paragraph (1)(A)(iii); each employee of the Department of Veterans Affairs, including an employee appointed under chapter 74 of title 38, United States Code, without regard to whether section 7421(a) of that title, section 7425(b) of that title, or any other provision of chapter 74 of that title is inconsistent with that inclusion; and any other individual occupying a position in the civil service, as that term is defined in section 2101 of title 5, United States Code; and does not include— a member of the uniformed services, as that term is defined in section 2101 of title 5, United States Code; an employee of an agency who occupies a position within the Executive Schedule under any of sections 5312 through 5316 of title 5, United States Code; an individual in a Senior Executive Service position, unless the individual is a career appointee, as those terms are defined in section 3132(a) of title 5, United States Code; an individual serving in a position of a confidential or policy-determining character under Schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or any successor regulations; a member of the Senate or House of Representatives, a Delegate to the House of Representatives, or the Resident Commissioner from Puerto Rico; or an employee of the personal office of an individual described in clause (v), of a leadership office of the Senate or the House of Representatives, of a committee of the Senate or the House of Representatives, or of a joint committee of Congress; and the term employer payroll taxes means— 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 taxes imposed by a State or local government on an employer with respect to amounts paid by such employer for work by employees.

There is established a schedule of pay differentials for covered duty as follows: An employee is entitled to pay for that covered duty at the rate of basic pay, which includes any differential or other premium pay paid for regularly scheduled work of the employee other than the differential established under this section, of the employee plus premium pay of $13 per hour. The total amount of premium pay paid to an employee under subparagraph

(A)shall be— with respect to an employee whose annual rate of basic pay is less than $200,000, not more than $10,000 reduced by employer payroll taxes with respect to such premium pay; and with respect to an employee whose annual rate of basic pay is not less than $200,000, not more than $5,000 reduced by employer payroll taxes with respect to such premium pay. With respect to the covered period, an employee is entitled to be paid the applicable differential established under paragraph

(1)for any period, including any period during the covered period that precedes the date of enactment of this Act, in which the employee is carrying out covered duty, subject to the applicable limitations under that paragraph. With respect to a payment earned by an employee under this subsection for a period during the covered period that precedes the date of enactment of this Act, the employee shall be paid that payment in a lump sum payment as soon as is practicable after that date of enactment. The Office of Personnel Management shall develop criteria for agencies in the executive branch of the Federal Government regarding the means by which to determine the eligibility of an employee in such an agency for the pay differential established under this subsection, which shall— be based on— the duties performed by the employee; the setting in which the employee performs the duties described in item (aa); and the interactions with the public required in order for the employee to perform the duties described in item (aa); and apply equally to all such agencies. The Office of Personnel Management may prescribe regulations implementing the pay differential under this subsection with respect to employees in the executive branch of the Federal Government. The employing authority for each agency that is not in the executive branch of the Federal Government— shall develop criteria regarding the means by which to determine the eligibility of an employee in such an agency for the pay differential established under this subsection; and may prescribe regulations implementing the pay differential under this subsection with respect to employees in the applicable agency. Any criteria developed, and regulations prescribed, by an agency under clause

(i)shall, to the extent practicable, be comparable to any criteria developed and regulations prescribed by the Office of Personnel Management under subparagraph (A). Notwithstanding subsections

(a)and

(b)of section 5547 of title 5, United States Code, or a provision of any other Federal, State, or Tribal law that imposes a limitation on the amount of premium pay (including any premium pay paid under subsection

(b)and any overtime pay paid for covered duty) that may be payable to an employee, an employee may be paid such premium pay to the extent that the payment does not cause the aggregate of basic pay and such premium pay for service performed in that calendar year by that employee to exceed the annual rate of basic pay payable for level II of the Executive Schedule, as of the end of the calendar year. In determining whether a payment to an employee is subject to the limitation under section 5307(a) of title 5, United States Code, a payment described in paragraph

(1)shall not apply. The authority provided under this subsection shall be considered to be in addition to, and not a replacement for, the authority provided under section 18110 of title VIII of the CARES Act ( Public Law 116–136 ). This subsection shall take effect as if enacted on the date on which the covered period began. There is hereby appropriated, out of any money in the Treasury not otherwise appropriated, $10,000,000,000, to remain available until expended, for the offices and agencies described in paragraph

(2)to carry out subsections

(b)and

(c)and to make transfers authorized under paragraph

(3)of this subsection. The offices and agencies described in this paragraph are— the Office of the Sergeant at Arms and Doorkeeper of the Senate; the Office of the Clerk of the House of Representatives; the Office of the Sergeant at Arms of the House of Representatives; the Office of the Chief Administrative Officer of the House of Representatives; the Office of the Attending Physician; the Capitol Police; the Office of the Architect of the Capitol; the Library of Congress; the Government Publishing Office; the Government Accountability Office; the Office of Personnel Management; the Administrative Office of the United States Courts; the District of Columbia Courts; and the District of Columbia Public Defender Service. The Office of Personnel Management may transfer funds made available under this subsection to other Federal agencies within the executive branch to reimburse such agencies for costs incurred to implement this section. The Administrative Office of the United States Courts may transfer funds made available under this subsection to other entities within the judicial branch to reimburse the entities for costs incurred to implement this section. Any payment provided under this section shall not be regarded as income and shall not be regarded as a resource for the month of receipt and the following 12 months, for purposes of determining the eligibility of the recipient (or the recipient’s spouse or family) for benefits or assistance, or the amount or extent of benefits or assistance, under any Federal program or under any State or local program financed in whole or in part with Federal funds. For purposes of determining modified adjusted gross income under section 36B(d)(2)(B) of the Internal Revenue Code of 1986, adjusted gross income shall be reduced by any amounts received by reason of subsection (b). Subparagraph

(A)shall not apply to the extent such reduction results in an amount of household income (as defined in section 36B(d)(2)(A) of such Code) of a taxpayer that is less than 100 percent of the poverty line (as defined in section 36B(d)(3) of such Code) for a family of the size involved (as determined under the rules of section 36B(d)(1) of such Code). Any employer that makes an applicable payment during a calendar year shall include as a separately stated item on any written statement required under section 6051 of the Internal Revenue Code of 1986 or any return or statement required by the Secretary of the Treasury (or the Secretary's delegate) with respect to nonemployee compensation the aggregate amount of each type of applicable payments so made. For purposes of this subparagraph, the term applicable payments means amounts paid by reason of subsection (b). For purposes of section 3111(a) of the Internal Revenue Code of 1986, any amounts required to be paid by reason of this section shall not be considered wages. For purposes of section 3221(a) of the Internal Revenue Code of 1986, the amount of tax imposed under such section for any calendar year in which an employer is required to pay amounts under this section shall be equal to the sum of— the product of the rate in effect under section 3111(a) of such Code and the compensation (reduced by any amounts required to be paid by reason of this section) paid during any calendar year by such employer for services rendered to such employer; and the product of the rate in effect under section 3111(b) of such Code and the compensation paid during any calendar year by such employer for services rendered to such employer. In the case of the tax imposed by section 1401(a) of the Internal Revenue Code of 1986, the self-employment income for any taxable year in which the individual received a payment required to be made under this section shall be reduced by 50 percent of the amount of payments so made. The Secretary of the Treasury (or the Secretary's delegate) shall prescribe regulations or other guidance for the application of sections 164(f) and 1402(a)(12) of the Internal Revenue Code of 1986 with respect to amounts to which clause

(i)applies. 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 paragraph (without regard to this subparagraph). 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 subsection not been enacted. Nothing in this section shall be construed to allow noncompliance with or in any way to diminish, and shall instead be construed to be in addition to, the rights or benefits that an essential worker is entitled to under any— Federal, State, or local law, including regulation; collective bargaining agreement; or employer policy. Nothing in this section shall be construed to affect the application of the provisions of sections 5343 or 5545 of title 5, United States Code, with respect to pay differentials for duty involving unusual physical hardship or hazard, or environmental differentials. The receipt of any funds under subsection (b), (c), or

(d)by a sovereign Tribal employer shall not expand, constrict, or alter the application of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) to such sovereign Tribal employer. In this subsection— the term Tribal employer means— 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; 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) ); 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 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); and the term Trival 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 ).

Connectionstraces to 9

Traces to 9 documents

U.S. Code