COVID–19 Essential Workers Compensation Fund Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 7686 To amend the Public Health Service Act to establish a program to provide full compensation to any essential COVID–19 frontline worker who was seriously injured or died as a result of having COVID–19, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 20, 2020 Mr. KENNEDY introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Public Health Service Act to establish a pro- gram to provide full compensation to any essential COVID–19 frontline worker who was seriously injured or died as a result of having COVID–19, 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘COVID–19 Essential 4 Workers Compensation Fund Act of 2020’’. 5 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 7686 IH SEC. 2. COMPENSATING ESSENTIAL COVID–19 FRONTLINE 1 WORKERS WHO ARE SERIOUSLY INJURED OR 2 DIE. 3 Title II of the Public Health Service Act (42 U.S.C. 4 202 et seq.) is amended by adding at the end the fol- 5 lowing: 6 ‘‘PART E—COMPENSATING COVID–19 FRONTLINE 7 WORKERS WHO ARE SERIOUSLY INJURED OR 8 DIE AS A RESULT OF HAVING COVID–19 9 ‘‘SEC. 275. DEFINITIONS. 10 ‘‘In this part, the following definitions apply: 11 ‘‘(1) CLAIMANT.—The term ‘claimant’ means 12 an individual filing a claim for compensation under 13 section 275D(a)(1). 14 ‘‘(2) COLLATERAL SOURCE.—The term ‘collat- 15 eral source’ means all collateral sources, including 16 life insurance, pension funds, death benefit pro- 17 grams, and payments by Federal, State, or local 18 governments related to injury or death as a result of 19 having COVID–19. 20 ‘‘(3) ECONOMIC LOSS.— 21 ‘‘(A) The term ‘economic loss’ means any 22 pecuniary loss resulting from harm (including 23 the loss of earnings or other benefits related to 24 employment, replacement services loss, loss due 25 to death, burial costs, loss of business or em- 26 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 7686 IH ployment opportunities, past and anticipated 1 out-of-pocket medical expense loss) to the ex- 2 tent recovery for such loss is allowed under ap- 3 plicable State law. 4 ‘‘(B) Notwithstanding subparagraph (A), 5 in calculating economic loss for purposes of a 6 claim for compensation under section 7 275C(a)(1), the total loss of earnings related to 8 employment shall not exceed $200,000 for any 9 12-month period. 10 ‘‘(4) ELIGIBLE ESSENTIAL COVID–19 FRONT- 11 LINE WORKER.—The term ‘eligible essential 12 COVID–19 frontline worker’ means an essential 13 COVID–19 frontline worker determined to be eligi- 14 ble for compensation under section 275C(d). 15 ‘‘(5) ESSENTIAL COVID–19 FRONTLINE WORK- 16 ER.—The term ‘essential COVID–19 frontline work- 17 er’ means a worker whose job— 18 ‘‘(A) is included in the ‘healthcare/public 19 health’ category of essential critical infrastruc- 20 ture workers in version 3.0 of the guidance of 21 the Department of Homeland Security issued 22 on April 17, 2020, and titled ‘Guidance on the 23 Essential Critical Infrastructure Workforce: 24 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 7686 IH Ensuring Community and National Resilience 1 in COVID–19 Response’; 2 ‘‘(B) is included in another category of es- 3 sential critical infrastructure workers in version 4 3.0 of such guidance; 5 ‘‘(C) is to deliver goods or transport people 6 during the COVID–19 public health emergency, 7 but is not included in any of the categories de- 8 scribed in subparagraphs (A) and (B); or 9 ‘‘(D) is determined by the Eligibility Com- 10 mittee to warrant treating such a worker as an 11 essential COVID–19 frontline worker. 12 ‘‘(6) NONECONOMIC LOSSES.—The term ‘non- 13 economic losses’ means losses for physical and emo- 14 tional pain, suffering, inconvenience, physical im- 15 pairment, mental anguish, disfigurement, loss of en- 16 joyment of life, loss of society and companionship, 17 loss of consortium (other than loss of domestic serv- 18 ice), hedonic damages, injury to reputation, and all 19 other nonpecuniary losses of any kind or nature. 20 ‘‘(7) SECRETARY.—Except as inconsistent with 21 this section, the term ‘Secretary’ means the Sec- 22 retary of Health and Human Services. 23 ‘‘(8) SERIOUSLY INJURED.—The term ‘seriously 24 injured’ means having injuries that— 25 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 7686 IH ‘‘(A) give rise to a substantial risk of 1 death; or 2 ‘‘(B) cause serious, permanent disfigure- 3 ment or prolonged loss or impairment of the 4 function of any body part or organ. 5 ‘‘(9) SPECIAL MASTER.—The term ‘Special 6 Master’ means the Special Master appointed under 7 section 275B(a). 8 ‘‘SEC. 275A. COMPENSATION PROGRAM. 9 ‘‘The Secretary shall carry out a program to provide 10 full compensation to any essential COVID–19 frontline 11 worker (or one or more representatives acting on behalf 12 of a deceased essential COVID–19 frontline worker) who 13 was seriously injured or died as a result of having 14 COVID–19. 15 ‘‘SEC. 275B. ADMINISTRATION. 16 ‘‘(a) IN GENERAL.—The Secretary, acting through a 17 Special Master appointed by the Secretary, shall— 18 ‘‘(1) administer the compensation program es- 19 tablished under this part; 20 ‘‘(2) promulgate all procedural and substantive 21 rules for the administration of this part; and 22 ‘‘(3) employ and supervise hearing officers and 23 other administrative personnel to perform the duties 24 of the Special Master under this part. 25 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 7686 IH ‘‘(b) APPOINTMENT OF SPECIAL MASTER AND DEP- 1 UTY SPECIAL MASTERS.—The Secretary may appoint a 2 Special Master and no more than two Deputy Special 3 Masters without regard to the provisions of title 5, United 4 States Code, governing appointments in the competitive 5 service. Any such employee shall serve at the pleasure of 6 the Secretary. The Secretary shall fix the annual salary 7 of the Special Master and the Deputy Special Masters. 8 ‘‘(c) ELIGIBILITY COMMITTEE.— 9 ‘‘(1) ESTABLISHMENT.—The Secretary shall es- 10 tablish a committee, to be known as the Eligibility 11 Committee. 12 ‘‘(2) COMPOSITION.—The Eligibility Committee 13 shall be composed of seven members, of which— 14 ‘‘(A) five shall be appointed by the Sec- 15 retary of Health and Human Services, of 16 which— 17 ‘‘(i) at least two shall be mental 18 health professionals; and 19 ‘‘(ii) at least one shall be an infectious 20 disease clinician; and 21 ‘‘(B) two shall be appointed by the Sec- 22 retary of Labor. 23 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 7686 IH ‘‘(3) DUTIES.—The Eligibility Committee, in 1 consultation with the Special Master, shall deter- 2 mine— 3 ‘‘(A) as described in section 275(5)(C), the 4 jobs, in addition to those described in section 5 275(5)(A), warranting treatment of workers 6 performing such jobs as essential COVID–19 7 frontline workers; 8 ‘‘(B) in accordance with section 275C, any 9 other requirements needing to be met to be eli- 10 gible for compensation under this part; and 11 ‘‘(C) hear and decide appeals brought pur- 12 suant to section 275C(b)(3)(A). 13 ‘‘SEC. 275C. DETERMINATION OF ELIGIBILITY FOR COM- 14 PENSATION. 15 ‘‘(a) FILING OF CLAIM.— 16 ‘‘(1) IN GENERAL.—A claimant may file a claim 17 for compensation under this part with the Special 18 Master. The claim shall be on the form developed 19 under paragraph (2) and shall state the factual basis 20 for eligibility for compensation and the amount of 21 compensation sought. 22 ‘‘(2) CLAIM FORM.— 23 ‘‘(A) IN GENERAL.—The Special Master 24 shall develop a claim form that claimants shall 25 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 7686 IH use when submitting claims under paragraph 1 (1). The Special Master shall ensure that such 2 form can be filed electronically, if determined to 3 be practicable. 4 ‘‘(B) CONTENTS.—The form developed 5 under subparagraph (A) shall request— 6 ‘‘(i) information from the claimant 7 concerning the serious injury that the 8 claimant suffered, or in the case of a claim 9 filed with respect to a decedent informa- 10 tion confirming the decedent’s death, as a 11 result of having COVID–19; 12 ‘‘(ii) in the case of a claim concerning 13 such serious injury, information concerning 14 any economic and noneconomic losses that 15 the claimant suffered as a result of the se- 16 rious injury; and 17 ‘‘(iii) information regarding collateral 18 sources of compensation the claimant has 19 received or is entitled to receive as a result 20 of such injury or death. 21 ‘‘(3) LIMITATION.—No claim may be filed 22 under paragraph (1) after calendar year 2029. 23 ‘‘(b) REVIEW AND DETERMINATION.— 24 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 7686 IH ‘‘(1) REVIEW.—The Special Master shall review 1 a claim submitted under subsection (a) and, with re- 2 spect to a claimant determined to be an eligible indi- 3 vidual, determine— 4 ‘‘(A) in the case of a claim concerning seri- 5 ous injury, the extent of the economic and non- 6 economic losses that the claimant suffered as a 7 result of the injury; and 8 ‘‘(B) in the case of a claim concerning seri- 9 ous injury or death, the amount of compensa- 10 tion to which the claimant is entitled under this 11 part. 12 ‘‘(2) NEGLIGENCE.—With respect to a claim- 13 ant, the Special Master shall not consider negligence 14 or any other theory of liability. 15 ‘‘(3) DETERMINATION.— 16 ‘‘(A) PROCESS.—Not later than 120 days 17 after that date on which a claim is filed under 18 subsection (a), the Special Master shall com- 19 plete a review, make a determination, and pro- 20 vide written notice to the claimant, with respect 21 to the matters that were the subject of the 22 claim under review. Such a determination shall 23 be final and not subject to judicial review, ex- 24 cept that a claimant may appeal the Special 25 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 7686 IH Master’s determination to the Eligibility Com- 1 mittee established under section 275B(c). 2 ‘‘(B) AMOUNT OF COMPENSATION FOR SE- 3 RIOUSLY INJURED CLAIMANTS.—The amount of 4 the compensation awarded under this part to a 5 claimant who was seriously injured as a result 6 of having COVID–19 shall be equal to the 7 amount of— 8 ‘‘(i) the economic losses and non- 9 economic losses of the claimant as a result 10 of having COVID–19; less 11 ‘‘(ii) the collateral source compensa- 12 tion the claimant has received or is entitled 13 to receive as a result of having COVID–19. 14 ‘‘(C) ADDITIONAL COMPENSATION FOR DE- 15 CEDENTS.—In lieu of any compensation de- 16 scribed in subparagraph (B), the amount of the 17 compensation awarded under this part in the 18 case of a claimant who died as a result of hav- 19 ing COVID–19 shall be— 20 ‘‘(i) full payment of any outstanding 21 educational loans of the decedent, includ- 22 ing private loans, including principal and 23 interest; 24 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 7686 IH ‘‘(ii) a death benefit of $250,000 paid 1 to the estate of the decedent; and 2 ‘‘(iii) an additional death benefit of 3 $100,000 paid to the spouse and each de- 4 pendent of the decedent. 5 ‘‘(4) RIGHTS OF CLAIMANT.—A claimant in a 6 review under paragraph (1) shall have— 7 ‘‘(A) the right to be represented by an at- 8 torney; 9 ‘‘(B) the right to present evidence, includ- 10 ing the presentation of witnesses and docu- 11 ments; and 12 ‘‘(C) any other due process rights deter- 13 mined appropriate by the Special Master. 14 ‘‘(5) NO PUNITIVE DAMAGES.—The Special 15 Master may not include amounts for punitive dam- 16 ages in any compensation paid under a claim under 17 this part. 18 ‘‘(6) NO CAP.—The Special Master— 19 ‘‘(A) shall, with respect to each claimant, 20 award the full amount of the compensation cal- 21 culated under paragraph (3); and 22 ‘‘(B) may not impose a cap on the total 23 amount of such compensation. 24 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 7686 IH ‘‘(c) NO CONSIDERATION OF RACE, ETHNICITY, 1 GENDER, RELIGION, OR SEX.—Notwithstanding any 2 other provision of law, the Special Master and Eligibility 3 Committee may not award damages to a claimant as part 4 of any compensation under this part using a calculation 5 of the projected future earning potential of that claimant 6 that takes into account race, color, ethnicity, national ori- 7 gin, religion, disability, or sex (including gender, gender 8 identity, and sexual orientation). 9 ‘‘(d) ELIGIBILITY.— 10 ‘‘(1) IN GENERAL.—A claimant shall be deter- 11 mined to be an eligible essential COVID–19 front- 12 line worker for purposes of this subsection if the 13 Special Master determines that such claimant, dur- 14 ing the COVID–19 emergency period, is an essential 15 COVID–19 frontline worker (or is a representative 16 acting on behalf of a deceased essential COVID–19 17 frontline worker) who was seriously injured or died 18 as a result of having (including being presumed to 19 have) COVID–19, including an essential COVID–19 20 frontline worker who committed suicide because of a 21 mental health condition that was exacerbated or con- 22 tributed to by COVID–19. 23 ‘‘(2) SINGLE CLAIM.—Not more than one claim 24 may be submitted under this part with respect to 25 VerDate Sep 11 2014 21:04 Aug 06, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H7686.IH H7686 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 7686 IH compensation arising from the death of an eligible 1 essential COVID–19 frontline worker. 2 ‘‘(3) DEFINITION.—In this s [Text truncated for display. 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