A bill to provide a payroll tax credit for certain expenses associated with protecting employees from COVID-19.

II 116TH CONGRESS 2D SESSION S. 4214 To provide a payroll tax credit for certain expenses associated with protecting employees from COVID–19. IN THE SENATE OF THE UNITED STATES JULY 20, 2020 Mr. PORTMAN introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To provide a payroll 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. HEALTHY WORKPLACE TAX CREDIT. 3 (a) IN GENERAL.—In the case of an employer, there 4 shall be allowed as a credit against applicable employment 5 taxes for each calendar quarter an amount equal to 50 6 percent of the sum of— 7 (1) the qualified employee protection expenses 8 paid or incurred by the employer during such cal- 9 endar quarter, and 10 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4214 IS (2) the qualified workplace reconfiguration ex- 1 penses paid or incurred by the employer during such 2 calendar quarter. 3 (b) LIMITATIONS AND REFUNDABILITY.— 4 (1) OVERALL DOLLAR LIMITATION ON CRED- 5 IT.— 6 (A) IN GENERAL.—The amount of the 7 credit allowed under subsection (a) with respect 8 to any employer for any calendar quarter shall 9 not exceed the excess (if any) of— 10 (i) the applicable dollar limit with re- 11 spect to such employer for such calendar 12 quarter, over 13 (ii) the aggregate credits allowed 14 under subsection (a) with respect to such 15 employer for all preceding calendar quar- 16 ters. 17 (B) APPLICABLE DOLLAR LIMIT.—The 18 term ‘‘applicable dollar limit’’ means, with re- 19 spect to any employer for any calendar quarter, 20 the sum of— 21 (i) $1,000, multiplied by so much of 22 the average number of full-time employees 23 (as determined for purposes of determining 24 whether an employer is an applicable large 25 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4214 IS employer for purposes of section 1 4980H(c)(2) of the Internal Revenue Code 2 of 1986, except that an individual shall not 3 be taken into account as an employee for 4 any period during which substantially all of 5 the services provided by such individual as 6 an employee are provided outside the 7 United States) employed by such employer 8 during such calendar quarter as does not 9 exceed 500, plus 10 (ii) $750, multiplied by so much of 11 such average number of full-time employ- 12 ees as exceeds 500 but does not exceed 13 1,000, plus 14 (iii) $500, multiplied by so much of 15 such average number of full-time employ- 16 ees as exceeds 1,000. 17 (2) CREDIT LIMITED TO EMPLOYMENT 18 TAXES.—The credit allowed by subsection (a) with 19 respect to any calendar quarter shall not exceed the 20 applicable employment taxes (reduced by any credits 21 allowed under subsections (e) and (f) of section 22 3111 of the Internal Revenue Code of 1986, sections 23 7001 and 7003 of the Families First Coronavirus 24 Response Act, and section 2301 of the CARES Act) 25 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4214 IS on the wages paid with respect to the employment 1 of all the employees of the employer for such cal- 2 endar quarter. 3 (3) REFUNDABILITY OF EXCESS CREDIT.— 4 (A) IN GENERAL.—If the amount of the 5 credit under subsection (a) exceeds the limita- 6 tion of paragraph (2) for any calendar quarter, 7 such excess shall be treated as an overpayment 8 that shall be refunded under sections 6402(a) 9 and 6413(b) of the Internal Revenue Code of 10 1986. 11 (B) TREATMENT OF PAYMENTS.—For pur- 12 poses of section 1324 of title 31, United States 13 Code, any amounts due to the employer under 14 this paragraph shall be treated in the same 15 manner as a refund due from a credit provision 16 referred to in subsection (b)(2) of such section. 17 (c) QUALIFIED EMPLOYEE PROTECTION EX- 18 PENSES.—For purposes of this section, the term ‘‘quali- 19 fied employee protection expenses’’ means amounts (other 20 than any qualified workplace reconfiguration expense) 21 paid or incurred by the employer for— 22 (1) testing employees of the employer for 23 COVID–19 (including on a periodic basis), 24 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 4214 IS (2) equipment to protect employees of the em- 1 ployer from contracting COVID–19, including 2 masks, gloves, and disinfectants, and 3 (3) cleaning products or services (whether pro- 4 vided by an employee of the taxpayer or a cleaning 5 service provider) related to preventing the spread of 6 COVID–19. 7 (d) QUALIFIED WORKPLACE RECONFIGURATION EX- 8 PENSES.—For purposes of this section— 9 (1) IN GENERAL.—The term ‘‘qualified work- 10 place reconfiguration expenses’’ means amounts paid 11 or incurred by the employer to design and recon- 12 figure retail space, work areas, break areas, or other 13 areas that employees or customers regularly use in 14 the ordinary course of the employer’s trade or busi- 15 ness if such design and reconfiguration— 16 (A) has a primary purpose of preventing 17 the spread of COVID–19, 18 (B) is with respect to an area that is lo- 19 cated in the United States and that is leased or 20 owned by the employer, 21 (C) is consistent with the ordinary use of 22 the property immediately before the reconfig- 23 uration, 24 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 4214 IS (D) is commensurate with the risks faced 1 by the employees or customers or is consistent 2 with recommendations made by the Centers for 3 Disease Control and Prevention or the Occupa- 4 tional Safety and Health Administration, 5 (E) is completed pursuant to a reconfig- 6 uration plan and no comparable reconfiguration 7 plan was in place before March 13, 2020, and 8 (F) is completed before January 1, 2021. 9 (2) REGULATIONS.—The Secretary shall pre- 10 scribe such regulations and other guidance as may 11 be necessary or appropriate to carry out the pur- 12 poses of this subsection, including guidance defining 13 primary purpose and reconfiguration plan. 14 (e) OTHER DEFINITIONS.—For purposes of this sec- 15 tion— 16 (1) APPLICABLE EMPLOYMENT TAXES.—The 17 term ‘‘applicable employment taxes’’ means the fol- 18 lowing: 19 (A) The taxes imposed under section 20 3111(a) of the Internal Revenue Code of 1986. 21 (B) So much of the taxes imposed under 22 section 3221(a) of such Code as are attrib- 23 utable to the rate in effect under section 24 3111(a) of such Code. 25 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 4214 IS (2) COVID–19.—Except where the context 1 clearly indicates otherwise, any reference in this sec- 2 tion to COVID–19 shall be treated as including a 3 reference to the virus which causes COVID–19. 4 (3) SECRETARY.—The term ‘‘Secretary’’ means 5 the Secretary of the Treasury or the Secretary’s del- 6 egate. 7 (4) OTHER TERMS.—Any term used in this sec- 8 tion (other than subsection (b)(1)(B)) which is also 9 used in chapter 21 or 22 of the Internal Revenue 10 Code of 1986 shall have the same meaning as when 11 used in such chapter. 12 (f) CERTAIN GOVERNMENTAL EMPLOYERS.—This 13 section shall not apply to the Government of the United 14 States, the government of any State or political subdivi- 15 sion thereof, or any agency or instrumentality of any of 16 the foregoing. 17 (g) SPECIAL RULES.— 18 (1) AGGREGATION RULE.—All persons treated 19 as a single employer under subsection (a) or (b) of 20 section 52 of the Internal Revenue Code of 1986, or 21 subsection (m) or (o) of section 414 of such Code, 22 shall be treated as one employer for purposes of this 23 section. 24 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 4214 IS (2) DENIAL OF DOUBLE BENEFIT.—Rules simi- 1 lar to the rules of section 280C(a) of the Internal 2 Revenue Code of 1986 shall apply for purposes of 3 this section. 4 (3) THIRD-PARTY PAYORS.—Any credit allowed 5 under this section shall be treated as a credit de- 6 scribed in section 3511(d)(2) of such Code. 7 (4) ELECTION NOT TO HAVE SECTION APPLY.— 8 This section shall not apply with respect to any em- 9 ployer for any calendar quarter if such employer 10 elects (at such time and in such manner as the Sec- 11 retary may prescribe) not to have this section apply. 12 (h) TRANSFERS TO CERTAIN TRUST FUNDS.—There 13 are hereby appropriated to the Federal Old-Age and Sur- 14 vivors Insurance Trust Fund and the Federal Disability 15 Insurance Trust Fund established under section 201 of 16 the Social Security Act (42 U.S.C. 401) and the Social 17 Security Equivalent Benefit Account established under 18 section 15A(a) of the Railroad Retirement Act of 1974 19 (45 U.S.C. 14 231n–1(a)) amounts equal to the reduction 20 in revenues to the Treasury by reason of this section 21 (without regard to this subsection). Amounts appropriated 22 by the preceding sentence shall be transferred from the 23 general fund at such times and in such manner as to rep- 24 licate to the extent possible the transfers which would have 25 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 4214 IS occurred to such Trust Fund or Account had this section 1 not been enacted. 2 (i) TREATMENT OF DEPOSITS.—The Secretary shall 3 waive any penalty under section 6656 of the Internal Rev- 4 enue Code of 1986 for any failure to make a deposit of 5 any applicable employment taxes if the Secretary deter- 6 mines that such failure was due to the reasonable anticipa- 7 tion of the credit allowed under this section. 8 (j) REGULATIONS AND GUIDANCE.—The Secretary 9 shall prescribe such regulations and other guidance as 10 may be necessary or appropriate to carry out the purposes 11 of this section, including— 12 (1) with respect to the application of the credit 13 under subsection (a) to third-party payors (including 14 professional employer organizations, certified profes- 15 sional employer organizations, or agents under sec- 16 tion 3504 of the Internal Revenue Code of 1986), 17 regulations or other guidance allowing such payors 18 to submit documentation necessary to substantiate 19 the amount of the credit allowed under subsection 20 (a), and 21 (2) regulations or other guidance to prevent 22 abusive transactions. 23 VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 4214 IS (k) APPLICATION.—This section shall only apply to 1 amounts paid or incurred after March 12, 2020, and be- 2 fore January 1, 2021. 3 Æ VerDate Sep 11 2014 02:44 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S4214.IS S4214 pbinns on DSKJLVW7X2PROD with BILLS