Essential Transportation Employee Safety Act of 2021

II 117TH CONGRESS 1ST SESSION S. 303 To require the Secretary of Transportation to support the efforts of State and local governments to provide for priority testing of certain transpor- tation workers with respect to the Coronavirus Disease 2019 (COVID– 19) and require the owners and operators of equipment and facilities used by passenger or freight transportation employers to clean, disinfect, and sanitize that equipment and provide personal protective equipment to certain employees, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 8, 2021 Mr. BLUMENTHAL (for himself, Ms. CANTWELL, and Mr. MARKEY) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require the Secretary of Transportation to support the efforts of State and local governments to provide for priority testing of certain transportation workers with respect to the Coronavirus Disease 2019 (COVID–19) and require the owners and operators of equipment and facilities used by passenger or freight transportation em- ployers to clean, disinfect, and sanitize that equipment and provide personal protective equipment to certain em- ployees, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 2 •S 303 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Essential Transpor- 2 tation Employee Safety Act of 2021’’. 3 SEC. 2. DEFINITION OF SECRETARY. 4 In this Act, the term ‘‘Secretary’’ means the Sec- 5 retary of Transportation. 6 SEC. 3. PRIORITY TESTING FOR ESSENTIAL TRANSPOR- 7 TATION EMPLOYEES. 8 (a) IN GENERAL.—The Secretary shall— 9 (1) adopt, for use by the Department of Trans- 10 portation in carrying out response efforts relating to, 11 and operations during, the Coronavirus Disease 12 2019 (COVID–19) pandemic, the categorization of 13 certain transportation workers as ‘‘essential critical 14 infrastructure workers’’ in accordance with the advi- 15 sory list published by the Cybersecurity and Infra- 16 structure Security Agency on May 19, 2020, entitled 17 ‘‘Guidance on the Essential Critical Infrastructure 18 Workforce: Ensuring Community and National Re- 19 silience in COVID–19 Response’’ (or a subsequent 20 version of that advisory list); and 21 (2) coordinate with the Director of the Centers 22 for Disease Control and Prevention and the Admin- 23 istrator of the Federal Emergency Management 24 Agency to support the efforts of State and local gov- 25 ernments to provide for priority testing of transpor- 26 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 3 •S 303 IS tation workers categorized as essential critical infra- 1 structure workers under paragraph (1) with respect 2 to the Coronavirus Disease 2019 (COVID–19). 3 SEC. 4. REQUIREMENTS FOR OWNERS AND OPERATORS OF 4 EQUIPMENT OR FACILITIES USED BY PAS- 5 SENGER OR FREIGHT TRANSPORTATION EM- 6 PLOYERS. 7 (a) DEFINITIONS.—In this section: 8 (1) APPROPRIATE GUIDANCE.—The term ‘‘ap- 9 propriate guidance’’ means, as applicable— 10 (A) guidance issued by the Centers for 11 Disease Control and Prevention relating to the 12 Coronavirus Disease 2019 (COVID–19); or 13 (B) the most recent revision of the safety 14 alert for operators issued by the Federal Avia- 15 tion Administration on May 11, 2020, and 16 numbered SAFO 20009 (relating to COVID– 17 19: updated interim occupational health and 18 safety guidance for air carriers and crews) (or 19 a similar or successor safety alert for opera- 20 tors). 21 (2) AT-RISK EMPLOYEE.—The term ‘‘at-risk 22 employee’’ means an employee (including a Federal 23 employee) or contractor of a passenger or freight 24 transportation employer— 25 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 4 •S 303 IS (A) whose job responsibilities involve inter- 1 action with— 2 (i) passengers; 3 (ii) the public; or 4 (iii) coworkers who interact with the 5 public; 6 (B) who handles items which are handled 7 or will be handled by the public; or 8 (C) who works in locations where social 9 distancing and other preventative measures 10 with respect to the Coronavirus Disease 2019 11 (COVID–19) are not possible. 12 (3) PASSENGER OR FREIGHT TRANSPORTATION 13 EMPLOYER.—The term ‘‘passenger or freight trans- 14 portation employer’’ includes— 15 (A) the owner, charterer, managing oper- 16 ator, master, or other individual in charge of a 17 passenger vessel (as defined in section 2101 of 18 title 46, United States Code); 19 (B) an air carrier (as defined in section 20 40102 of title 49, United States Code); 21 (C) a provider of intercity rail passenger 22 transportation (as defined in section 24102 of 23 title 49, United States Code); 24 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 5 •S 303 IS (D) a rail carrier (as defined in section 1 10102 of title 49, United States Code); 2 (E) a commuter authority (as defined in 3 section 24102 of title 49, United States Code); 4 (F) a regional transportation authority (as 5 defined in section 24102 of title 49, United 6 States Code); 7 (G) a provider of public transportation (as 8 defined in section 5302 of title 49, United 9 States Code); 10 (H) a provider of motorcoach services (as 11 defined in section 32702 of the Motorcoach En- 12 hanced Safety Act of 2012 (49 U.S.C. 31136 13 note; Public Law 112–141)); 14 (I) a motor carrier that owns or operates 15 more than 100 motor vehicles (as those terms 16 are defined in section 390.5 of title 49, Code of 17 Federal Regulations (or successor regulations)); 18 (J) a sponsor, owner, or operator of a pub- 19 lic-use airport (as defined in section 47102 of 20 title 49, United States Code); 21 (K) an owner or operator of a vessel oper- 22 ating in commercial service (as defined in sec- 23 tion 2101 of title 46, United States Code); 24 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 6 •S 303 IS (L)(i) a marine terminal operator (as de- 1 fined in section 40102 of title 46, United States 2 Code); 3 (ii) an employer (as defined in section 2 of 4 the Longshore and Harbor Workers’ Compensa- 5 tion Act (33 U.S.C. 902)); and 6 (iii) the relevant authority or operator of a 7 port or harbor; and 8 (M) the Transportation Security Adminis- 9 tration, exclusively with respect to Transpor- 10 tation Security Officers. 11 (b) REQUIREMENTS.—For the purposes of respond- 12 ing to, or for purposes relating to operations during, the 13 national emergency declared by the President under the 14 National Emergencies Act (50 U.S.C. 1601 et seq.) with 15 respect to the Coronavirus Disease 2019 (COVID–19), the 16 Secretary shall require— 17 (1) the owners and operators of equipment or 18 facilities used by passenger or freight transportation 19 employers, as applicable— 20 (A) to clean, disinfect, and sanitize, in ac- 21 cordance with the appropriate guidance, the 22 equipment and facilities, including, as applica- 23 ble— 24 (i) buses and transit vehicles; 25 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 7 •S 303 IS (ii) commercial motor vehicles; 1 (iii) passenger and freight loco- 2 motives; 3 (iv) freight and passenger rail cars; 4 (v) vessels; 5 (vi) airports; 6 (vii) vehicles used for the transpor- 7 tation of workers to job sites where inter- 8 action with the public will occur; 9 (viii) aircraft, including the cockpit 10 and the cabin; and 11 (ix) other equipment and facilities; 12 (B) to ensure that facilities, including en- 13 closed facilities, owned, operated, and used by 14 passenger or freight transportation employers, 15 including facilities used for employee training or 16 the performance of indoor or outdoor mainte- 17 nance, repair, or overhaul work, are disinfected 18 and sanitized frequently in accordance with the 19 appropriate guidance; 20 (C) to provide to at-risk employees— 21 (i) masks or protective face coverings; 22 (ii) gloves; 23 (iii) hand sanitizer; 24 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 8 •S 303 IS (iv) sanitizing wipes with sufficient al- 1 cohol content; and 2 (v) training on the proper use of per- 3 sonal protective equipment and sanitizing 4 equipment; 5 (D) to ensure that employees whose job re- 6 sponsibilities include the cleaning, disinfecting, 7 or sanitizing described in subparagraphs (A) 8 and (B) are provided— 9 (i) masks or protective face coverings; 10 (ii) gloves; 11 (iii) hand sanitizer; and 12 (iv) sanitizing wipes with sufficient al- 13 cohol content; 14 (E) to establish guidelines, or adhere to 15 any existing applicable guidelines, including any 16 guidelines provided in the guidance described in 17 subsection (a)(1)(B), for notifying an employee 18 of the owner or operator of a confirmed diag- 19 nosis of the Coronavirus Disease 2019 20 (COVID–19) with respect to any other em- 21 ployee of the owner or operator with whom the 22 notified employee had physical contact or a 23 physical interaction during the 48-hour period 24 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 9 •S 303 IS preceding the time at which the diagnosed em- 1 ployee developed symptoms; 2 (F) to require, subject to the requirement 3 to make reasonable modifications to policies, 4 practices, or procedures under the Americans 5 with Disabilities Act of 1990 (42 U.S.C. 12101 6 et seq.), the wearing of masks or protective face 7 coverings by— 8 (i) passengers traveling on transpor- 9 tation provided by a passenger or freight 10 transportation employer; and 11 (ii) employees of passenger or freight 12 transportation employers when those em- 13 ployees are— 14 (I) interacting with passengers, 15 the public, or coworkers who interact 16 with the public; or 17 (II) working in locations where 18 social distancing and other preventa- 19 tive measures with respect to the 20 Coronavirus Disease 2019 (COVID– 21 19) are not possible; 22 (G) to require, subject to the reasonable 23 accommodations requirement of the Americans 24 with Disabilities Act of 1990 (42 U.S.C. 12101 25 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 10 •S 303 IS et seq.), each flight crew member to wear a 1 mask or protective face covering while on board 2 an aircraft and outside the flight deck; and 3 (H) to ensure that each contractor of the 4 owner or operator provides masks or protective 5 face coverings, gloves, hand sanitizer, and sani- 6 tizing wipes with sufficient alcohol content to 7 those employees of the contractor whose job re- 8 sponsibilities include the cleaning, disinfecting, 9 or sanitizing described in subparagraph (A) or 10 (B); and 11 (2) an air carrier to submit to the Adminis- 12 trator of the Federal Aviation Administration a pro- 13 posal to permit pilots to wear masks or protective 14 face coverings in the flight deck, including a safety 15 risk assessment with respect to that proposal. 16 (c) MARKET UNAVAILABILITY OF NECESSARY 17 ITEMS.— 18 (1) NOTICE OF MARKET UNAVAILABILITY.— 19 (A) IN GENERAL.—If an owner or operator 20 described in paragraph (1) of subsection (b) is 21 unable to acquire 1 or more items necessary to 22 comply with the requirements prescribed under 23 that paragraph due to market unavailability of 24 the items, the owner or operator shall— 25 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 11 •S 303 IS (i) not later than 7 days after the 1 date on which the owner or operator is un- 2 able to acquire each applicable item, sub- 3 mit to the Secretary a written notice ex- 4 plaining the efforts made and obstacles 5 faced by the owner or operator to acquire 6 that item; and 7 (ii) continue making efforts to acquire 8 that item until the item is acquired. 9 (B) UPDATED NOTICE WITH RESPECT TO 10 THE SAME ITEM.—If an owner or operator is 11 unable to acquire an item described in a notice 12 submitted under subparagraph (A) by the date 13 described in paragraph (4)(B)(ii) with respect 14 to the notice, the owner or operator may submit 15 an updated notice with respect to that item. 16 (2) REASONABLE EFFORT DETERMINATION.— 17 With respect to each notice submitted under para- 18 graph (1), the Secretary shall determine whether the 19 owner or operator submitting the notice has made 20 reasonable efforts to acquire the item described in 21 the notice. 22 (3) NOTICE OF COMPLIANCE.—Not later than 7 23 days after the date on which an owner or operator 24 acquires an item described in a notice submitted by 25 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 12 •S 303 IS that owner or operator under paragraph (1) in a 1 quantity sufficient to comply with the requirements 2 prescribed under subsection (b)(1), the owner or op- 3 erator shall submit to the Secretary a written notice 4 of compliance with those requirements. 5 (4) LIST OF OWNERS AND OPERATORS MAKING 6 REASONABLE EFFORTS TO ACQUIRE UNAVAILABLE 7 ITEMS.— 8 (A) IN GENERAL.—The Secretary shall 9 publish on a public website of the Department 10 of Transportation a list that, with respect to 11 each notice submitted to the Secretary under 12 paragraph (1) for which the Secretary has 13 made a positive determination under paragraph 14 (2)— 15 (i) identifies the owner or operator 16 that submitted the notice; 17 (ii) identifies the item that the owner 18 or operator was unable to acquire; and 19 (iii) describes the reasonable efforts 20 made by the owner or operator to acquire 21 that item. 22 (B) REMOVAL FROM LIST.—The Secretary 23 shall remove each entry on the list described in 24 subparagraph (A) on the earlier of— 25 VerDate Sep 11 2014 03:14 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S303.IS S303 SSpencer on DSK126QN23PROD with BILLS 13 [Text truncated for display. Full text available on Congress.gov.]