II 117TH CONGRESS 1ST SESSION S. 537 To provide a tax credit for certain expenses associated with protecting employees from COVID–19. 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Healthy Workplaces 4 Act’’. 5 SEC. 2. HEALTHY WORKPLACE PAYROLL TAX CREDIT. 6 (a) IN GENERAL.—In the case of an employer, there 7 shall be allowed as a credit against applicable employment 8 taxes for each calendar quarter an amount equal to 50 9 percent of the sum of— 10 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 537 IS (1) the qualified employee protection expenses 1 paid or incurred by the employer during such cal- 2 endar quarter, 3 (2) the qualified workplace reconfiguration ex- 4 penses paid or incurred by the employer during such 5 calendar quarter, and 6 (3) the qualified education and training ex- 7 penses paid or incurred by the employer during such 8 calendar quarter. 9 (b) LIMITATIONS AND REFUNDABILITY.— 10 (1) OVERALL DOLLAR LIMITATION ON CRED- 11 IT.— 12 (A) IN GENERAL.—The amount of the 13 credit allowed under subsection (a) with respect 14 to any employer for any calendar quarter shall 15 not exceed the excess (if any) of— 16 (i) the applicable dollar limit with re- 17 spect to such employer for such calendar 18 quarter, over 19 (ii) the aggregate credits allowed 20 under subsection (a) with respect to such 21 employer for all preceding calendar quar- 22 ters. 23 (B) APPLICABLE DOLLAR LIMIT.— 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 537 IS (i) IN GENERAL.—The term ‘‘applica- 1 ble dollar limit’’ means, with respect to any 2 employer for any calendar quarter, the 3 sum of— 4 (I) $1,000, multiplied by so much 5 of the average number of full-time 6 employees employed by such employer 7 during such calendar quarter as does 8 not exceed 500, plus 9 (II) $750, multiplied by so much 10 of such average number of full-time 11 employees as exceeds 500 but does 12 not exceed 1,000, plus 13 (III) $500, multiplied by so much 14 of such average number of full-time 15 employees as exceeds 1,000 but does 16 note exceed 2,500, plus 17 (IV) $250, multiplied by so much 18 of such average number of full-time 19 employees as exceeds 2,500 but does 20 not exceed 5,000, plus 21 (V) $50, multiplied by so much 22 of such average number of full-time 23 employees as exceeds 5,000. 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 537 IS (ii) AVERAGE NUMBER OF FULL-TIME 1 EMPLOYEES.—For purposes of this sub- 2 section, the average number of full time 3 employees shall be determined in the same 4 manner as such number is determined for 5 purposes of determining whether an em- 6 ployer is an applicable large employer for 7 purposes of section 4980H(c)(2) of the In- 8 ternal Revenue Code of 1986, except 9 that— 10 (I) an individual shall not be 11 taken into account as an employee for 12 any period during which substantially 13 all of the services provided by such in- 14 dividual as an employee are provided 15 outside the United States, and 16 (II) under regulations provided 17 by the Secretary, an individual who 18 performs services as an independent 19 contractor shall be treated as an em- 20 ployee of the employer if no credit 21 under this section is allowed to any 22 other employer with respect to such 23 individual. 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 537 IS (2) CREDIT LIMITED TO EMPLOYMENT 1 TAXES.—The credit allowed by subsection (a) with 2 respect to any calendar quarter shall not exceed the 3 applicable employment taxes (reduced by any credits 4 allowed under subsections (e) and (f) of section 5 3111 of the Internal Revenue Code of 1986, sections 6 7001 and 7003 of the Families First Coronavirus 7 Response Act, and section 2301 of the CARES Act) 8 on the wages paid with respect to the employment 9 of all the employees of the employer for such cal- 10 endar quarter. 11 (3) REFUNDABILITY OF EXCESS CREDIT.— 12 (A) IN GENERAL.—If the amount of the 13 credit under subsection (a) exceeds the limita- 14 tion of paragraph (2) for any calendar quarter, 15 such excess shall be treated as an overpayment 16 that shall be refunded under sections 6402(a) 17 and 6413(b) of the Internal Revenue Code of 18 1986. 19 (B) TREATMENT OF PAYMENTS.—For pur- 20 poses of section 1324 of title 31, United States 21 Code, any amounts due to the employer under 22 this paragraph shall be treated in the same 23 manner as a refund due from a credit provision 24 referred to in subsection (b)(2) of such section. 25 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 537 IS (c) QUALIFIED EMPLOYEE PROTECTION EX- 1 PENSES.—For purposes of this section, the term ‘‘quali- 2 fied employee protection expenses’’ means amounts (other 3 than any qualified workplace reconfiguration expense) 4 paid or incurred by the employer for— 5 (1) testing employees of the employer for 6 COVID–19 (including on a periodic basis), 7 (2) equipment (including masks, gloves, and 8 disinfectants) and technology systems used— 9 (A) to protect customers or employees of 10 the employer from contracting COVID–19, or 11 (B) to enhance social distancing and con- 12 tact tracing. 13 (3) cleaning products or services (whether pro- 14 vided by an employee of the taxpayer or a cleaning 15 service provider) related to preventing the spread of 16 COVID–19, and 17 (4) such other equipment or technology which— 18 (A) is recommended as part of the Federal 19 government’s recommendations for safe work- 20 places, and 21 (B) the Secretary, in consultation with the 22 Secretary of Health and Human Services and 23 the Director of the Centers for Disease Control 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 537 IS and Prevention, determines is necessary and ap- 1 propriate for preventing COVID–19. 2 (d) QUALIFIED WORKPLACE RECONFIGURATION EX- 3 PENSES.—For purposes of this section— 4 (1) IN GENERAL.—The term ‘‘qualified work- 5 place reconfiguration expenses’’ means amounts paid 6 or incurred by the employer to evaluate, design, and 7 reconfigure retail space, work areas, break areas, or 8 other areas that employees or customers regularly 9 use in the ordinary course of the employer’s trade or 10 business if such evaluation, design, and reconfigura- 11 tion— 12 (A) has a primary purpose of preventing 13 the spread of COVID–19, 14 (B) is with respect to an area that is lo- 15 cated in the United States and that is leased or 16 owned by the employer, 17 (C) is consistent with the ordinary use of 18 the property immediately before the reconfig- 19 uration, 20 (D) is commensurate with the risks faced 21 by the employees or customers or is consistent 22 with recommendations made by the Centers for 23 Disease Control and Prevention or the Occupa- 24 tional Safety and Health Administration, 25 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 537 IS (E) is completed pursuant to a reconfig- 1 uration plan and no comparable reconfiguration 2 plan was in place before March 13, 2020, and 3 (F) is completed before January 1, 2022. 4 (2) REGULATIONS.—The Secretary shall pre- 5 scribe such regulations and other guidance as may 6 be necessary or appropriate to carry out the pur- 7 poses of this subsection, including guidance defining 8 primary purpose and reconfiguration plan. 9 (e) QUALIFIED EDUCATION AND TRAINING EX- 10 PENSES.—For purposes of this section— 11 (1) IN GENERAL.—The term ‘‘qualified edu- 12 cation and training expenses’’ means amount paid or 13 incurred to a qualified entity for the training em- 14 ployees on new business procedures related to pre- 15 venting COVID–19 transmission. 16 (2) QUALIFIED ENTITY.—The term ‘‘qualified 17 entity’’ means any entity certified by the Secretary 18 as an accredited training institution, an industry- 19 recognized trade association, or a nonprofit entity 20 qualified to provide training described in paragraph 21 (1). 22 (f) OTHER DEFINITIONS.—For purposes of this sec- 23 tion— 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 537 IS (1) APPLICABLE EMPLOYMENT TAXES.—The 1 term ‘‘applicable employment taxes’’ means the fol- 2 lowing: 3 (A) The taxes imposed under section 4 3111(a) of the Internal Revenue Code of 1986. 5 (B) So much of the taxes imposed under 6 section 3221(a) of such Code as are attrib- 7 utable to the rate in effect under section 8 3111(a) of such Code. 9 (2) COVID–19.—Except where the context 10 clearly indicates otherwise, any reference in this sec- 11 tion to COVID–19 shall be treated as including a 12 reference to the virus which causes COVID–19. 13 (3) SECRETARY.—The term ‘‘Secretary’’ means 14 the Secretary of the Treasury or the Secretary’s del- 15 egate. 16 (4) OTHER TERMS.—Any term used in this sec- 17 tion (other than subsection (b)(1)(B)) which is also 18 used in chapter 21 or 22 of the Internal Revenue 19 Code of 1986 shall have the same meaning as when 20 used in such chapter. 21 (g) CERTAIN GOVERNMENTAL EMPLOYERS.—This 22 section shall not apply to the Government of the United 23 States, the government of any State or political subdivi- 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 537 IS sion thereof, or any agency or instrumentality of any of 1 the foregoing. 2 (h) SPECIAL RULES.— 3 (1) AGGREGATION RULE.—All persons treated 4 as a single employer under subsection (a) or (b) of 5 section 52 of the Internal Revenue Code of 1986, or 6 subsection (m) or (o) of section 414 of such Code, 7 shall be treated as one employer for purposes of this 8 section. 9 (2) DENIAL OF DOUBLE BENEFIT.—Rules simi- 10 lar to the rules of section 280C(a) of the Internal 11 Revenue Code of 1986 shall apply for purposes of 12 this section. 13 (3) THIRD-PARTY PAYORS.—Any credit allowed 14 under this section shall be treated as a credit de- 15 scribed in section 3511(d)(2) of such Code. 16 (4) ELECTION NOT TO HAVE SECTION APPLY.— 17 This section shall not apply with respect to any em- 18 ployer for any calendar quarter if such employer 19 elects (at such time and in such manner as the Sec- 20 retary may prescribe) not to have this section apply. 21 (5) COORDINATION WITH PAYCHECK PROTEC- 22 TION PROGRAM AND OTHER GOVERNMENT 23 GRANTS.— 24 (A) PAYCHECK PROTECTION PROGRAM.— 25 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 537 IS (i) IN GENERAL.—No credit shall be 1 allowed under section with respect to any 2 amounts taken into account in connection 3 with a covered loan under section 7(a)(37) 4 or 7A of the Small Business Act. 5 (ii) APPLICATION WHERE LOANS NOT 6 FORGIVEN.—The Secretary, in consultation 7 with the Administrator of the Small Busi- 8 ness Administration, shall issue guidance 9 providing that amounts taken into account 10 during the covered period shall not fail to 11 be treated as qualified wages under this 12 section by reason of subparagraph (A) to 13 the extent that— 14 (I) a covered loan of the taxpayer 15 under section 7(a)(37) of the Small 16 Business Act is not forgiven by reason 17 of a decision under section 18 7(a)(37)(J) of such Act, or 19 (II) a covered loan of the tax- 20 payer under section 7A of the Small 21 Business Act is not forgiven by reason 22 of a decision under section 7A(g) of 23 such Act. 24 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 537 IS (B) GOVERNMENT GRANTS.—No credit 1 shall be allowed under this section with respect 2 to any amount paid or incurred for property or 3 services if such property or services are fi- 4 nanced with funding provided under a Federal, 5 State, or local program a principal purpose of 6 which is to provide subsidized financing for 7 such property or services. 8 (6) EXPENSES MUST BE FOR PROPERTY OR 9 SERVICES WITHIN THE UNITED STATES.—An 10 amount paid or incurred by the employer shall not 11 be taken into account as a qualified employee protec- 12 tion expense, a qualified workplace reconfiguration 13 expense, or a qualified education and training ex- 14 pense if such amount is paid or incurred for— 15 (A) equipment which is not for use in the 16 United States, or 17 (B) services which are not conducted in the 18 United States. 19 (i) TRANSFERS TO CERTAIN TRUST FUNDS.—There 20 are hereby appropriated to the Federal Old-Age and Sur- 21 vivors Insurance Trust Fund and the Federal Disability 22 Insurance Trust Fund established under section 201 of 23 the Social Security Act (42 U.S.C. 401) and the Social 24 Security Equivalent Benefit Account established under 25 VerDate Sep 11 2014 00:22 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 537 IS section 15A(a) of the Railroad Retirement Act of 1974 1 (45 U.S.C. 231n–1(a)) amounts equal to the reduction in 2 revenues to the Treasury by reason of this section (without 3 regard to this subsection). Amounts appropriated by the 4 preceding sentence shall be transferred from the general 5 fund at such times and in such manner as to replicate 6 to the extent possible the transfers which would have oc- 7 curred to such Trust Fund or Account had this section 8 not been enacted. 9 (j) TREATMENT OF DEPOSITS.—The Secretary shall 10 waive any penalty under section 6656 of the Internal Rev- 11 enue Code of 1986 for any failure to make a deposit of 12 [Text truncated for display. Full text available on Congress.gov.]