[House Report 117-526]
[From the U.S. Government Publishing Office]


117th Congress }                                          { Report
                        HOUSE OF REPRESENTATIVES
  2d Session   }                                          { 117-526

======================================================================
 
    LONGSHORE AND HARBOR WORKERS' COVID-19 COMPENSATION ACT OF 2022

                                _______
                                

 September 29, 2022.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Scott of Virginia, from the Committee on Education and Labor, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3114]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 3114) to provide benefits authorized under the 
Longshore and Harbor Workers' Compensation Act to maritime 
workers who contract COVID-19, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Committee Consideration..........................................     5
Committee Views..................................................     6
Section-by-Section Analysis......................................    12
Explanation of Amendments........................................    13
Application of Law to the Legislative Branch.....................    13
Unfunded Mandate Statement.......................................    13
Earmark Statement................................................    14
Roll Call Votes..................................................    14
Statement of Performance Goals and Objectives....................    17
Duplication of Federal Programs..................................    17
Hearings.........................................................    17
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    17
New Budget Authority and CBO Cost Estimate.......................    17
Committee Cost Estimate..........................................    21
Changes in Existing Law Made by the Bill, as Reported............    21
Minority Views...................................................    24

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Longshore and Harbor Workers' COVID-19 
Compensation Act of 2022''.

SEC. 2. CLAIMS RELATED TO COVID-19.

  (a) In General.--A covered employee who receives a diagnosis of 
COVID-19 or is subject to an order described in subsection (b)(2) and 
who provides notice of or files a claim under the Longshore and Harbor 
Workers' Compensation Act (33 U.S.C. 901 et seq.) relating to such 
diagnosis or order shall be conclusively presumed to have an injury 
arising out of or in the course of employment for the purpose of 
compensation under the Longshore and Harbor Workers' Compensation Act.
  (b) Covered Employee.--In this Act, the term ``covered employee'' 
means an individual who, at any time during the period beginning 
January 27, 2020, and ending on January 27, 2024, is an employee 
engaged in maritime employment as defined in section 2 of the Longshore 
and Harbor Workers' Compensation Act (33 U.S.C. 902(3)) and who--
          (1)(A) is diagnosed with COVID-19; and
          (B) during a covered exposure period with respect to the date 
        of such diagnosis carried out duties which--
                  (i) required contact with members of the public, co-
                workers, or other individuals associated with the 
                course of employment; or
                  (ii) included a risk of exposure to the novel 
                coronavirus; or
          (2) is ordered not to return to work by the employee's 
        employer or by a local, State, or Federal agency because of 
        exposure, or the risk of exposure, to 1 or more individuals 
        diagnosed with COVID-19 in the workplace.
  (c) Clarification of Maritime Employment.--For the purposes of 
subsection (b), maritime employment does not include employment under--
          (1) the Defense Base Act (42 U.S.C. 1651 et seq.);
          (2) the Outer Continental Shelf Lands Act (43 U.S.C. 
        1333(b)); and
          (3) section 8171 of title 5, United States Code.
  (d) Limitation.--This Act shall not apply with respect to a covered 
employee who--
          (1) provides notice or files a claim described in subsection 
        (a) on or before the date of enactment of this Act; and
          (2) is determined to be entitled to the compensation 
        described in subsection (a) or is awarded such compensation if 
        such determination or award is made on or before the date of 
        enactment of this Act.
  (e) Denials on or Before the Date of Enactment.--Subsection (a) shall 
apply with respect to a covered employee who is determined not to be 
entitled to, or who is not awarded, compensation described in 
subsection (a) if such determination or decision not to award such 
compensation is made on or before the date of enactment of this Act.
  (f) Exclusion.--The Secretary shall not consider any compensation 
paid with respect to a notice or claim to which subsection (a) applies, 
including disability compensation, death benefits, funeral and burial 
expenses, and medical expenses, in calculating the annual assessments 
under section 44(c)(2) of the Longshore and Harbor Workers' 
Compensation Act (33 U.S.C. 944(c)(2)).

SEC. 3. REIMBURSEMENT.

  (a) In General.--
          (1) Entitlement.--An employer of a covered employee or the 
        employer's carrier shall be entitled to reimbursement pursuant 
        to this Act for any compensation paid with respect to a notice 
        or claim described in section 2(a), including disability 
        compensation, death benefits, funeral and burial expenses, 
        medical or other related costs for treatment and care, and 
        reasonable and necessary allocated claims expenses.
          (2) Safety and health requirements.--To be entitled to 
        reimbursement under paragraph (1)--
                  (A) an employer shall be in compliance with all 
                applicable safety and health guidelines and standards 
                that are related to the prevention of occupational 
                exposure to the novel coronavirus, including such 
                guidelines and standards issued by the Occupational 
                Safety and Health Administration, State plans approved 
                under section 18 of the Occupational Safety and Health 
                Act of 1970 (29 U.S.C. 667), the Centers for Disease 
                Control and Prevention, and the National Institute for 
                Occupational Safety and Health; and
                  (B) a carrier--
                          (i) shall be a carrier for an employer that 
                        is in compliance with subparagraph (A); and
                          (ii) shall not adjust the experience rating 
                        or the annual premium of the employer based 
                        upon the compensation paid by the carrier with 
                        respect to a notice or claim described in 
                        section 2(a).
  (b) Reimbursement Procedures.--
          (1) In general.--To receive reimbursement under subsection 
        (a), a claim for such reimbursement shall be submitted to the 
        Secretary of Labor--
                  (A) not earlier than the date on which a compensation 
                order (as described in section 19(e) of the Longshore 
                and Harbor Workers' Compensation Act (33 U.S.C. 
                919(e))) is issued that fixes entitlement to benefits; 
                or
                  (B) not later than one year after the final payment 
                of compensation to a covered employee pursuant to this 
                Act; and
                  (C) in accordance with a rule issued by the Secretary 
                that the Secretary determines to be similar to the 
                process established under part 61 of title 20, Code of 
                Federal Regulations (as in effect on the date of 
                enactment of this Act).
          (2) Records.--An employer and the employer's carrier shall 
        make, keep, and preserve such records and provide such 
        information as the Secretary of Labor determines necessary or 
        appropriate to carry out this Act.
          (3) Final agency action.--The action of the Secretary in 
        allowing or denying reimbursement under this section shall be 
        the final Agency action with respect to such reimbursement.
  (c) Appropriations.--
          (1) In general.--A reimbursement under this section shall be 
        paid out of the Longshore COVID-19 Fund.
          (2) Funds.--In addition to amounts otherwise available, there 
        are authorized to be appropriated, and there are appropriated, 
        out of any money in the Treasury not otherwise appropriated, 
        such sums as may be necessary to the Longshore COVID-19 Fund 
        for each reimbursement paid out of such Fund under this 
        section.
  (d) Report.--Not later than 60 days after the end of each of fiscal 
years 2022, 2023, and 2024, the Secretary of Labor shall submit to the 
Committee on Education and Labor of the House of Representatives and 
the Committee on Health, Education, Labor, and Pensions of the Senate, 
an annual report enumerating--
          (1) the number of claims filed pursuant to section 2(a);
          (2) of such filed claims--
                  (A) the number and types of claims under the 
                Longshore and Harbor Workers Compensation Act (33 
                U.S.C. 901 et seq.) with respect to which the 
                presumption under section 2(a) is made;
                  (B) the number and types of such claims denied; and
                  (C) the number and types of such claims pending; and
          (3) the total number of claims for reimbursement and the 
        total amounts paid for such reimbursement from the Longshore 
        COVID-19 Fund under subsection (c)(1) for the fiscal year for 
        which the report is being submitted.
  (e) Regulations.--The Secretary of Labor may promulgate such 
regulations as may be necessary to carry out this Act.
  (f) Definitions.--In this Act:
          (1) Covered exposure period.--The term ``covered exposure 
        period'' with respect to the date of a diagnosis described in 
        section 2(b)(1)(A), means the period of days--
                  (A) ending on the date of such diagnosis; and
                  (B) equal to the maximum number of days that the 
                Secretary of Labor, with the concurrence of the 
                Director of the National Institute of Occupational 
                Safety and Health, determines could occur between an 
                exposure to the novel coronavirus and a diagnosis of 
                COVID-19 resulting from such exposure.
          (2) LHWCA terms.--The terms ``carrier'', ``compensation'', 
        ``employee'', and ``employer'' have the meanings given the 
        terms in section 2 of the Longshore and Harbor Workers' 
        Compensation Act (33 U.S.C. 902).
          (3) Longshore covid-19 fund.--The term ``Longshore COVID-19 
        Fund'' means the fund established in section 45 of the 
        Longshore and Harbor Workers' Compensation Act (as added by 
        section 4 of this Act).
          (4) Novel coronavirus.--The term ``novel coronavirus'' means 
        SARS-CoV-2, a variant of SARS-CoV-2, or any other coronavirus 
        declared to be a pandemic by public health authorities.

SEC. 4. LONGSHORE COVID-19 FUND.

  The Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et 
seq.) is amended by adding after section 44 the following:

``SEC. 45. LONGSHORE COVID-19 FUND.

  ``(a) In General.--There is established in the Treasury of the United 
States the Longshore COVID-19 Fund (in this section, referred to as the 
`Fund'), which consists of sums that are appropriated to the Fund under 
section 3(c) of the Longshore and Harbor Workers' COVID-19 Compensation 
Act of 2022.
  ``(b) Expenditures.--Amounts in the Fund shall be available for the 
reimbursement of an employer or the employer's carrier for compensation 
payments and expenses approved under section 3 of the Longshore and 
Harbor Workers' COVID-19 Compensation Act of 2022, including disability 
compensation, death benefits, funeral and burial expenses, medical or 
other related costs for treatment and care, and reasonable and 
necessary allocated claims expenses paid under this Act when 
reimbursement is required under section 3 of the Longshore and Harbor 
Workers' COVID-19 Compensation Act of 2022, subject to any limitations 
in such section.''.

                          Purpose and Summary

    COVID-19 is an acute threat to the lives and livelihoods of 
workers in maritime occupations, such as longshoring, ship 
repair, shipbuilding, shipbreaking, and harbor construction, 
because of conditions from the hiring hall to the work itself 
that puts workers in close proximity with each other for long 
stretches of time. These workers are essential for supply 
chains that stretch across the United States and for the 
nation's defense infrastructure. Workers who miss work, incur 
medical expenses, or develop disabilities due to COVID-19 face 
the risk of substantial financial hardship. The Longshore and 
Harbor Workers' Compensation Act\1\ (LHWCA) provides workers' 
compensation benefits to ensure that maritime workers do not 
bear the hardships that stem from workplace illnesses on their 
own. Under current law, however, maritime workers must prove a 
direct connection between their illness and a specific 
workplace exposure. With an infectious disease like COVID-19, 
drawing such a specific link can often be impossible, and this 
limitation prevents workers from accessing benefits despite the 
risks they endure by filling an essential role during an 
unprecedented pandemic.
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    \1\Longshore and Harbor Workers Compensation Act, 44 Stat. 1424 (33 
U.S.C. Sec. 901 et seq.).
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    H.R. 3114, the Longshore and Harbor Workers COVID-19 
Compensation Act (H.R. 3114 or this Act), would remedy this 
problem by establishing a conclusive presumption that workers 
engaged in maritime employment who receive a diagnosis of 
COVID-19, or who were ordered to quarantine between January 
2020 and January 2024 due to a potential exposure to COVID-19, 
have an injury or illness arising out of their employment under 
the LHWCA. To qualify for the presumption, maritime workers 
must have contact with coworkers, the public, or others in a 
way that increases their likelihood of contracting COVID-19 
within a period of time determined by the U.S. Secretary of 
Labor (the Secretary). H.R. 3114 also establishes a fund to 
reimburse employers or their insurance carriers for the costs 
of paying claims to covered workers, provided that the employer 
adheres to the applicable safety and health guidelines and 
standards for containing the spread of COVID-19 in the 
workplace. This legislation addresses the challenges that 
maritime workers face in gaining access to LHWCA benefits when 
they are exposed to COVID-19 on the job without burdening 
employers.

                        Committee Consideration


                             116TH CONGRESS

    On May 12, 2020, Rep. Nita Lowey (D-NY-17) introduced H.R. 
6800, the Heroes Act. The bill was referred to the Committees 
on Appropriations, Ways and Means, and Budget. Title V of 
Division L of H.R. 6800 contained language similar to this 
legislation. On May 15, 2020, a Rules Committee Resolution was 
reported to the U.S. House of Representatives (House) to 
provide for debate on H.R. 6800. On May 15, 2020, H.R. 6800 
passed the House with a vote of 208 Ayes and 199 Nays. No 
further action was taken on the bill.
    On October 1, 2020, Rep. Lowey proposed that the House 
concur in the U.S. Senate (Senate) amendments to H.R. 925, the 
America's Conservation Enhancement Act, with an amendment that 
substituted the entirety of the text and redesignated the bill 
as the Heroes Act. Title III of the Heroes Act, as amended, 
included language similar to this legislation. The motion to 
concur in the Senate amendments was adopted with a vote of 214 
Ayes and 207 Nays. No further action was taken on the bill.

                             117TH CONGRESS

    On February 24, 2021, Rep. John Yarmuth (D-KY-3) introduced 
H.R. 1319, the American Rescue Plan Act of 2021. The Committee 
on the Budget reported H.R. 1319 to the House that same day. On 
February 27, 2021, H.R. 1319 passed the House with a vote of 
219 Ayes and 212 Nays. That House-passed bill contained 
language similar to H.R. 3114; however, the language was not 
included in the final version of H.R. 1319 that was 
subsequently signed into law.
    On May 11, 2021, Rep. Frank Mrvan (D-IN-1) introduced H.R. 
3114, the Longshore and Harbor Workers' COVID-19 Compensation 
Act of 2021. The bill was referred to the Committee on 
Education and Labor.
    The Committee on Education and Labor's Subcommittee on 
Workforce Protections held a hearing on December 2, 2021, 
entitled ``Strengthening the Safety Net for Injured Workers.'' 
During this hearing, relevant to H.R. 3114, Mr. Christopher 
Godfrey, Director, Office of Workers' Compensation Programs 
(OWCP), U.S. Department of Labor (DOL), Washington, DC, 
testified about the challenges the Longshore program has faced 
in resolving COVID-19 claims brought by covered workers.
    The Committee on Education and Labor held a markup of H.R. 
3114 on March 16, 2022. The Committee adopted an Amendment in 
the Nature of a Substitute (ANS) offered by Rep. Frank Mrvan 
(D-IN-1). The ANS incorporated the provisions of H.R. 3114 with 
the following changes:
           Changing the year in the short title from 
        2021 to 2022; and
           Extending the qualifying period from 2023 to 
        2024.
    One amendment to the ANS was offered:
           Rep. Fred Keller (R-PA-12) offered an 
        amendment to strike the text of the bill and replace it 
        with text to direct the Comptroller General to prepare 
        a report on COVID-19 benefits eligibility for maritime 
        workers under the LHWCA. The amendment was defeated by 
        a vote of 21 Yeas and 27 Nays.
    H.R. 3114 was reported favorably, as amended, to the House 
by a vote of 27 Yeas and 21 Nays.

                            Committee Views


                              INTRODUCTION

    The Committee on Education and Labor (the Committee) has 
jurisdiction over workers' compensation, including the LHWCA, 
and a record of consequential legislation in this area.\2\ 
Accordingly, the Committee is hereby strengthening the LHWCA, 
which provides wage-loss compensation, medical treatment, 
return-to-work assistance, and vocational rehabilitation to 
assist maritime workers working on and adjacent to America's 
navigable waterways in the event of work-related injuries, 
illnesses, or death.
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    \2\See, e.g., Energy Employees Occupational Illness Compensation 
Program Act, Pub. L. No. 106-398, Title XXXVI (2000); Longshoremen's 
and Harbor Workers' Compensation Act Amendments of 1972, Pub. L. No. 
92-576; Black Lung Benefits Act of 1972, Pub. L. No. 92-303; Federal 
Coal Mine Safety and Health Act of 1969, Pub. L. No. 91-173, Title IV.
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    H.R. 3114, the Longshore and Harbor Workers COVID-19 
Compensation Act, supports covered maritime workers by 
establishing that certain covered workers--those who were 
employed between January 27, 2020 and January 27, 2024, and who 
were either diagnosed with COVID-19 after working in-person 
with some exposure to coworkers or the public or were required 
to quarantine due to a COVID-19 exposure--are ``conclusively 
presumed'' to have an injury arising out of their employment 
for the purposes of compensation under the LHWCA.
    H.R. 3114 is endorsed by the International Longshoreman's 
Association; International Longshore and Warehouse Union; Metal 
Trades Council of the AFL-CIO; Transportation Trades Department 
of the AFL-CIO; United Steel, Paper and Forestry, Rubber, 
Manufacturing, Energy, Allied Industrial and Service Workers 
International Union; and the Workers Injury Law & Advocacy 
Group.

    LONGSHORE AND HARBOR WORKERS DEPEND ON THIS FEDERAL PROGRAM FOR 
                         WORKERS' COMPENSATION

    Most workers in the United States are covered by a form of 
no-fault workers' compensation system. Each state (except 
Texas) has a mandatory workers' compensation policy, in which 
employers are required to purchase or provide insurance to 
reimburse employees injured or sickened on the job.\3\ These 
systems provide employees with access to wage replacement, 
compensation for medical expenses, and survivor benefits in the 
event of workplace injury or illness. Between 1910 and 1921, 
most states adopted the basic framework of the workers' 
compensation systems that exist today.\4\ Prior to this wave of 
reform, employees injured or sickened on the job would have had 
to prove their employer's negligence led to their losses and 
survive powerful employer defenses in tort. Then, even if they 
were successful, the employees would have had to try to cover 
their medical and living expenses on damage awards that usually 
amounted to no more than one year's worth of wages.\5\ The 
result of these reforms is often called the ``Grand Bargain,'' 
providing workers greater surety that they will be compensated 
in the event of illness or injury on the job while also 
shielding employers from costly litigation.\6\
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    \3\Emily A. Spieler, (Re)Assessing the Grand Bargain: Compensation 
for Work Injuries in the United States, 1900-2017, 69 Rutgers L. Rev. 
891, 932 (2017). Texas law is aggressively pro-employer on a number of 
fronts: employers can (1) opt into the state-regulated workers' 
compensation system, which is characterized by low benefits, many 
restrictions on eligibility and medical care for recipients, and little 
independent oversight, and also secures employers immunity from tort, 
or (2) establish employer-run injury benefits plans, which offer 
limited benefits for injured workers, and face some tort risk, albeit 
under a common law so pro-employer that the duty of care may not extend 
to some ``open and obvious dangers.'' Id. at 916, 932, 947-49,
    \4\Price V. Fishback & Shawn Everett Kantor, The Adoption of 
Workers' Compensation in the United States, 1900-1930, 41 J.L. & Econ. 
305 (1998).
    \5\Spieler, supra note 3, at 900-908.
    \6\Id.
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    The LHWCA was enacted in the early 20th Century to extend 
the Grand Bargain to some workers who were at risk of being 
excluded. The U.S. Supreme Court ruled in 1917 that state 
workers' compensation laws could not apply to employment on the 
navigable waters of the United States because the Constitution 
reserves questions of maritime law for federal authority.\7\ 
Congress responded in 1927 by passing the LHWCA, which crafts a 
federal program, modeled on a New York law,\8\ to extend 
workers' compensation coverage to these workers.\9\ Much of the 
original covered work of longshoring, ship building, repair, 
breaking, and other harbor work moved further away from water 
with the rise of containerization and other technological 
developments leading Congress to amend the LHWCA in 1972 to 
include maritime workers employed in areas adjoining navigable 
waterways, such as docks, wharves, drydocks, and port 
terminals.\10\
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    \7\Southern Pac. Co. v. Jensen, 244 U.S. 205 (1917).
    \8\Stuart Housel Smith, The Special Fund Under the Longshore and 
Harbor Workers' Compensation Act, 11 Tul. Mar. L.J. 71, 74 (1986).
    \9\Eric J. Zagrocki, Note, Worker's Compensation--Longshoremen and 
Harbor Workers' Compensation Act--Federal Employer's Liability Act, 29 
Duq. L. Rev. 417, 419 (1991).
    \10\Gillian S. Davies, The Stormy Seas of Situs: Reevaluating the 
Situs Requirement of the Longshore and Harbor Workers' Compensation 
Act, 63 Am. U.L. Rev. 1901 (2014).
---------------------------------------------------------------------------
    The LHWCA provides wage-loss compensation, medical 
treatment, return-to-work assistance, and vocational 
rehabilitation to assist maritime workers working on or 
adjacent to America's navigable waterways in the event of work-
related injuries, illnesses, or death.\11\ Disability benefits 
under the LHWCA replace a maximum of two-thirds of a covered 
worker's average pre-disability wages in the event of total 
disability or, in the case of partial disability, two-thirds of 
the difference between average pre-disability wages and the 
worker's current wage.\12\ These wage replacement rates are 
subject to a floor (50 percent of the national average weekly 
wage (NAWW) for covered maritime workers) and a ceiling (200 
percent of the NAWW).\13\ In FY 2022, the NAWW was $863, 
meaning the maximum payment to a totally disabled worker was 
$1,726.\14\ The LHWCA also provides survivors' benefits, 
beginning at 50 percent of a worker's wages and adjusted based 
on the number of dependents in a household.\15\
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    \11\Scott D. Szymendera, Cong. Res. Serv., R41506, The Longshore 
and Harbor Workers' Compensation Act (LHWCA): Overview of Workers' 
Certain Private Compensation for Sector Maritime Workers 4 (Mar. 2021).
    \12\Id.
    \13\Id.
    \14\National Average Weekly Wages (NAWW), Minimum and Maximum 
Compensation Rates, and Annual October Increases (Section 10(f)), Off. 
of Workers' Comp. Progs., https://www.dol.gov/agencies/owcp/dlhwc/
NAWWinfo (last visited Apr. 19, 2022).
    \15\Szymendera, supra note 11.
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    The LHWCA benefits process is similar to state workers' 
compensation processes. Employers are required to either self-
insure or purchase insurance through a carrier. Injured or 
sickened employees submit a notice of their injury to their 
employer or their insurance carrier and submit a claim to OWCP. 
If these claims are disputed, OWCP initiates a conciliation 
process. If the dispute persists, DOL Administrative Law Judges 
(ALJs) rule on the claim, with appeals possible to the U.S. 
Courts of Appeals.\16\
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    \16\Id.
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     COVID-19 IS AN OCCUPATIONAL HEALTH HAZARD FOR MARITIME WORKERS

    Maritime workers are at heightened risk of contracting 
COVID-19 due to the nature of their work, which they continued 
to perform throughout the pandemic, as explained by the New 
York Times:

          Longshore work is exhausting, and often requires 
        close contact with others. The trade is essential to 
        the economy, with longshore workers serving as a 
        crucial link between moving goods from a shipping 
        vessel onto trucks and trains that send them to their 
        final destination, experts said . . .
          The workers at highest risk of being exposed to the 
        virus are deep sea longshoremen, who are primarily 
        Black and do most of the work that requires the lifting 
        and moving of goods, union officials noted.
          Lashers, who take steel rods off containers so they 
        can be lifted by crane operators, sweat and breathe 
        heavily as they work in pairs side by side. Shuttle 
        drivers, responsible for transporting their fellow 
        longshoremen to and from either ends of a dock that can 
        stretch for miles, spend their days packed in Ford 
        Crown Victorias and school buses with other 
        longshoremen.
          ``It's very high risk,'' said Gail Jackson, 45, a 
        shuttle driver on the docks in Charleston who 
        contracted the virus and spent weeks off the job. 
        ``There's no way for us to be six feet distanced.''\17\
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    \17\Pranshu Verma, `Very High Risk': Longshoremen Want Protection 
From the Virus So They Can Stay on the Job, N.Y. Times (Dec. 12, 2020), 
https://www.nytimes.com/2020/12/12/us/politics/coronavirus-
longshoremen-ports.html.

    In fact, the risk is elevated even before work commences 
---------------------------------------------------------------------------
because of the day labor hiring structure:

          There are certain elements to longshore work that 
        pose an inherent risk for workers, most acutely their 
        daily hiring events, where workers bid for a job on one 
        of the ships coming into port that day.
          On an early December night in Savannah, Ga., when it 
        was a brisk 46 degrees, over 500 workers gathered 
        outside the city's union hall shortly after dusk for a 
        chance to work an overnight shift on one of the vessels 
        docking at port.
          Workers, in order of seniority, were squeezed into 
        marked-off areas shoulder to shoulder. Many wore masks, 
        sometimes slipping off, as workers reached over one 
        another to hand a foreman their union card to get 
        selected onto a crew for the night.
          Barry Griffin, a longshoreman who runs the daily 
        hiring in Savannah, said he tries to hold the events 
        outside to protect from the virus, but if it gets too 
        cold, or the weather is unpleasant it could be moved 
        inside. ``I make a game-time decision,'' he said. 
        Jackie Robinson, the longshore union's local president 
        in Savannah, contracted the virus this year and 
        recovered. His wife died from the virus.\18\
---------------------------------------------------------------------------
    \18\Id.

    This day labor model compounds the risk by creating 
incentives for workers to continue to report to work even when 
they might have reason to self-isolate, because a decision to 
isolate could result in significant time without earnings. As 
Alan A. Robb, International Longshore Association South 
Atlantic and Gulf Coast District President, described the 
situation facing many longshore workers, ``there are people who 
know they're sick, and go into work. They can't afford to miss 
a day.''\19\
---------------------------------------------------------------------------
    \19\Id.
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    These conditions are not well known outside of the 
industry. During a hearing on March 16, 2022 before the 
Committee's Subcommittee on Workforce Protections, Rep. 
Mariannette Miller-Meeks (R-IA-2) prefaced a question to OWCP 
Director Christopher Godfrey with a concern about whether close 
contact is actually a hallmark of maritime employment:

          Mrs. Miller Meeks. I will readily admit that we do 
        not have any ports in Iowa, and I am not exactly sure 
        how longshoremen work. But in my mind, longshoremen are 
        not in close contact with other individuals, such as 
        they are in one of our other facilities, our 
        manufacturing facilities.
          And we recently addressed that individuals that are 
        more isolated in their workplace, i.e., truck drivers, 
        don't have the same degree of risk to other 
        individuals.
          So can you tell me, what is the average work hour of 
        a longshoreman?\20\
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    \20\Strengthening the Safety Net for Injured Workers: Hearing 
Before the Subcomm. on Wrkf. Prots. of the H. Comm. on Educ. & Lab., 
117th Cong. (Dec. 2, 2021) [hereinafter Strengthening the Safety Net] 
(https://edlabor.house.gov/hearings/strengthening-the-safety-net-for-
injured-workers 1:28:29-1:29:03).

    Later in the hearing, in response to a question by Rep. 
Pramila Jayapal (D-WA-7) about challenges of proving that a 
COVID-19 case arose out of maritime employment, Godfrey took 
---------------------------------------------------------------------------
the opportunity to stress this aspect of maritime work:

          First, I would point out I have had the opportunity 
        since becoming Director of OWCP to tour ports, and I 
        have seen not only with the ports . . . but I have also 
        seen ship repair, shipbuilding, and I have seen the 
        very close quarters and the hazardous exposures that 
        they do have.\21\
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    \21\Id. (1:31:39-1:31:59).

    Medical experts agree that the conditions Godfrey observed 
are hazardous. ``Maritime workers have performed essential work 
throughout the COVID-19 pandemic, loading and unloading ships, 
building and repairing ships, and toiling to keep our ports 
operating,'' explained Dr. Robert M. Bourgeois, president of 
the American College of Occupational and Environmental Medicine 
in a letter to Rep. Mrvan. ``This labor requires longshore 
workers to work in closely connected teams, resulting in 
hundreds of longshore and harbor workers contracting COVID-19 
over the course of the pandemic.''\22\
---------------------------------------------------------------------------
    \22\Letter from Dr. Robert M. Bourgeois, Amer. Coll. of Occ. & 
Envtl. Med., to Rep. Frank Mrvan (Mar. 15, 2022).
---------------------------------------------------------------------------
    Given these conditions, COVID-19 outbreaks were inevitable. 
One worker in the early summer of 2020 ``literally almost shut 
the Houston waterfront down,'' Robb said.\23\ Between December 
2021 and January 2022, a COVID-19 outbreak infected 
approximately 20 percent of union longshore workers in the port 
of Mobile, Alabama.\24\ In January 2022 alone, around 1,700 
dock workers in West Coast ports tested positive for COVID-19, 
exceeding infections for all of 2021.\25\ Between bouts of 
illness and mandatory quarantine requirements, the COVID-19 
pandemic ``has had a tremendous impact on the livelihoods of 
longshore workers who have been toiling endlessly during the 
pandemic to ensure that our nation's economy continues to 
thrive.''\26\
---------------------------------------------------------------------------
    \23\Verma, supra note 17.
    \24\Jessica Wehrman, Longshoremen Seek Workers' Comp Law Change for 
COVID-19 Coverage, Roll Call (Mar. 24, 2022), https://rollcall.com/
2022/03/24/longshoremen-seek-workers-comp-law-change-for-covid-19-
coverage/.
    \25\Laura Curtis, COVID Cases for U.S. Dockworkers Top All of 
2021's, Bloomberg (Jan. 27, 2022), https://www.bloomberg.com/news/
articles/2022-01-27/u-s-west-coast-dockworkers-hit-by-covid-19-
surpasses-2021-total.
    \26\Scott, Mrvan Introduce Bill to Secure Support for Longshore and 
Harbor Workers Who Contract COVID-19, H. Comm. on Educ. & lab. (May 12, 
2021), https://edlabor.house.gov/media/press-releases/scott-mrvan-
introduce-bill-to-secure-support-for-longshore-and-harbor-workers-who-
contract-covid-19 (statement of International Longshoremen's 
Association).
---------------------------------------------------------------------------

 MARITIME WORKERS LACK THE COVID COVERAGE PROVIDED TO OTHER ESSENTIAL 
                                WORKERS

    The COVID-19 pandemic has presented a unique challenge for 
workers' compensation programs, including the LHWCA. As with 
most state workers' compensation laws, the LHWCA requires 
covered workers to demonstrate that an occupational illness 
``arises naturally out of such employment,''\27\ at which point 
the employer is able to rebut the claim by refuting the 
causation between the conditions and the harm.\28\ To avoid 
burdening essential workers with the often-impossible 
obligation to link their COVID-19 to a workplace exposure, 28 
states and Puerto Rico provide for eligibility for workers' 
compensation benefits based on a presumption that COVID-19 is 
job-related for certain essential workers.\29\ In 2021, 
Congress took a similar approach by adopting in the American 
Rescue Plan Act a presumption that frontline federal workers 
who contract COVID-19 are eligible for federal employees' 
workers' compensation.\30\
---------------------------------------------------------------------------
    \27\LHWCA Sec. 2(2) (33 U.S.C. Sec. 902(2)).
    \28\Szymendera, supra note 11.
    \29\Josh Cunningham, COVID-19: Workers' Compensation, Nat'l Conf. 
State Legis. (Jan. 24, 2022), https://www.ncsl.org/research/labor-and-
employment/covid-19-workers-compensation.aspx.
    \30\American Rescue Plan Act of 2021, Pub. L. No. 117-2, Sec.  
4016.
---------------------------------------------------------------------------
    There is clear evidence that, without adding a presumption 
of eligibility for compensation for COVID-19, the LHWCA is not 
adequately serving covered workers who contract COVID-19. 
Between April 2020 and October 2021, covered employees 
submitted 1,093 COVID-19 related claims under the LHWCA, but 
employers paid out benefits in only 73 cases--meaning that 
employers forced 93 percent of COVID-19 claims into OWCP's 
resolution process.\31\ This level of contestation is a 
significant departure from the norm for LHWCA claims, 88 
percent of which are resolved with payments starting to workers 
before 28 days have passed since the first claim.\32\ It is 
also a stark contrast from acceptance rates for COVID-19 claims 
under the Federal Employee Compensation Act Program, which 
since 2021 has implemented a presumption in favor of benefit 
eligibility for frontline federal workers with COVID-19 and has 
accepted 86 percent of the more than 21,000 COVID-19 related 
claims submitted by November 2021.\33\
---------------------------------------------------------------------------
    \31\Strengthening the Safety Net for Injured Workers, supra note 20 
(response to questions for the record from Christopher Godfrey, OWCP 
Director).
    \32\Longshore Performance Page, Off. of Workers' Comp. Progs., 
https://www.dol.gov/agencies/owcp/dlhwc/
LongshoreProgramPerformanceResults (last accessed Apr. 25, 2022).
    \33\Strengthening the Safety Net, supra note 20 (statement of 
Christopher Godfrey, OWCP Director, https://edlabor.house.gov/imo/
media/doc/GodfreyChristopherTestimony120221.pdf).
---------------------------------------------------------------------------

         SUPPORTING MARITIME WORKERS WILL NOT BURDEN EMPLOYERS

    H.R. 3114 would provide greater security to essential 
maritime workers without burdening maritime employers. H.R. 
3114 provides that self-insured employers and insurance 
carriers will be reimbursed for the cost of claims paid out to 
workers covered under this legislation. Access to reimbursement 
is contingent on employers complying with safety and health 
guidelines and standards related to COVID-19, including those 
issued by the Centers for Disease Control and Prevention (CDC), 
the Occupational Safety and Health Administration (OSHA), and 
state regulators. Maritime employers are further protected from 
additional costs under this bill as insurance carriers are 
prohibited from using claims paid by the insurance carrier and 
reimbursed under the LHWCA to adjust a covered employer's 
``experience rating,'' a factor that modifies an employer's 
annual insurance premium based on workers' compensation claims. 
Additionally, the Secretary shall not consider benefits paid 
under this legislation in determining assessments to be paid by 
employers and insurance carriers into the Special Fund under 
the LHWCA.
    Conditioning reimbursement on employers' compliance with 
applicable safety and health standards to contain the workplace 
spread of COVID-19 is essential to promoting the safety of the 
maritime workforce. A core element of the LHWCA has always been 
promoting the efficient operation of the nation's vital 
maritime infrastructure and the health of the maritime 
workforce. Requiring employer compliance with the relevant 
guidance and standards to contain the spread of COVID-19 will 
accomplish this objective.

                               CONCLUSION

    Without H.R. 3114, covered maritime workers will continue 
to struggle to get access to the workers' compensation benefits 
to which they are entitled when they are exposed to COVID-19 on 
the job. Maritime workers have been essential to maintaining 
critical functions for American commerce and defense throughout 
the pandemic. They have been at the center of the supply chains 
that have kept the economy functioning throughout unprecedented 
challenges. The pandemic has added new risks to the maritime 
workplace, including contracting COVID-19 in the workplace and 
losing out on wages while sick or quarantining. Strengthening 
the LHWCA to adapt to the COVID-19 pandemic is critical to 
mitigating these risks and protecting maritime workers.

                      Section-by-Section Analysis


Sec. 1. Short title

    This section establishes that the legislation may be cited 
as the Longshore and Harbor Workers' COVID-19 Compensation Act 
of 2022.

Sec. 2. Claims related to COVID-19

    This section provides that employees engaged in ``maritime 
employment'' under the LHWCA, who were employed between January 
27, 2020, and January 27, 2024, and (1) received a diagnosis of 
COVID-19 following a ``covered exposure period'' (as defined by 
the Secretary pursuant to section 3) or (2) were ordered by a 
public health agency not to return to the workplace due to a 
documented exposure to COVID-19, risk of exposure to COVID-19, 
or an outbreak of COVID-19 will be ``conclusively presumed'' to 
have an injury arising out of or in the course of employment 
for the purpose of compensation under the LHWCA. Such employees 
will be entitled to benefits consistent with the LHWCA.
    This section also provides that covered workers who were 
denied benefits under the LHWCA for claims related to COVID-19 
prior to the passage of this Act shall be eligible to apply for 
benefits under this Act.
    This section prohibits the Secretary from considering 
benefits paid pursuant to this legislation in determining the 
annual assessments for payments into the Special Fund under the 
LHWCA.

Sec. 3. Reimbursement

    This section provides that self-insured employers and 
insurance carriers shall be reimbursed for the cost of claims 
authorized under Section 2 of this Act, provided the employer 
is in compliance with safety and health guidelines and 
standards related to COVID-19, including those issued by OSHA, 
a state OSHA plan, the CDC, and the National Institute for 
Occupational Safety and Health (NIOSH).
    This section also specifies that, to receive reimbursement, 
insurance carriers may not adjust a covered employer's 
experience rating or annual premium based on claims paid by the 
carrier and reimbursed under this Act.
    This section allows self-insured employers or insurance 
carriers to submit a claim for reimbursement to the Secretary 
after an order for compensation has been approved that fixes 
entitlement to benefits, but not later than a year after the 
final payment to a covered employee.
    This section requires employers and insurance carriers to 
make, keep, and preserve records and provide reports and 
information as the Secretary determines necessary or 
appropriate to carry out this Act.
    This section provides that actions of the Secretary in 
allowing or denying any reimbursement are final agency actions 
related to the reimbursement.
    This section authorizes such sums as may be necessary to 
fund the Longshore COVID-19 Fund established by Section 4 to 
reimburse an employer or insurance carrier for each claim paid 
out under this Act.
    This section also requires DOL to submit an annual report 
to the House Committee on Education and Labor and the Senate 
Committee on Health, Education, Labor, and Pensions regarding 
the number of claims filed, approved, denied, and pending under 
this Act, as well as the amounts paid out of the Longshore 
COVID-19 Fund.
    This section also establishes that the Secretary shall 
determine, with the concurrence of the Director of NIOSH, the 
``covered exposure period'' for which an employee can submit a 
claim covered by this Act. This ``covered exposure period'' 
will be the period that ends on the date of the employee's 
diagnosis and covers the maximum span of time that the 
Secretary determines could occur between exposure to the virus 
that causes COVID-19 and a diagnosis of the disease.

Sec. 4. Longshore COVID-19 Fund

    This section establishes the Longshore COVID-19 Fund as 
part of the LWHCA. This section provides that funds in this 
account are available for the reimbursement of claims approved 
under this Act, including disability compensation, death 
benefits, funeral and burial expenses, medical or other related 
costs for treatment and care, and reasonable and necessary 
allocated claims expenses paid by the employer or carrier 
pursuant to this Act.

                       Explanation of Amendments

    The amendments, including the Amendment in the Nature of a 
Substitute, are explained in the descriptive portions of this 
report.

              Application of Law to the Legislative Branch

    Pursuant to section 102(b)(3) of the Congressional 
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 3114, as 
amended, does not apply to terms and conditions of employment 
within the legislative branch because the law amended by H.R. 
3114 (the LHWCA) is not included within the list of laws 
applicable to the legislative branch enumerated in section 
102(a) of the Congressional Accountability Act of 1995.

                       Unfunded Mandate Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended 
by section 101(a)(2) of the Unfunded Mandates Reform Act of 
1995, Pub. L. No. 104-4), the Committee adopts as its own the 
estimate of federal mandates regarding H.R. 3114, as amended, 
prepared by the Director of the Congressional Budget Office.

                           Earmark Statement

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3114 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as described in clauses 9(e), 9(f), and 9(g) of rule 
XXI.

                            Roll Call Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 3114:


             Statement of Performance Goals and Objectives

    Pursuant to clause (3)(c)(4) of rule XIII of the Rules of 
the House of Representatives, the goal of H.R. 3114 is to 
improve maritime workers' access to compensation for losses due 
to COVID-19 under the LHWCA. The legislation achieves this by 
creating a conclusive presumption that covered maritime workers 
who are diagnosed with COVID-19 or are required to quarantine 
due to exposure to COVID-19 have an illness arising out of 
their occupation for purposes of the LHWCA.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee states that no 
provision of H.R. 3114 is known to be duplicative of another 
federal program, including any program that was included in a 
report to Congress pursuant to section 21 of Pub. L. No. 111-
139 or the most recent Catalog of Federal Domestic Assistance.

                                Hearings

    Pursuant to clause 3(c)(6) of rule XIII of the Rules of the 
House of Representatives, the Committee's Subcommittee on 
Workforce Protections held a hearing on December 2, 2021, 
entitled ``Strengthening the Safety Net for Injured Workers,'' 
which was used to develop H.R. 3114. Relevant to H.R. 3114, the 
Committee heard testimony from Mr. Christopher J. Godfrey, 
Director, Office of Workers' Compensation Programs, U.S. 
Department of Labor, Washington, DC, who testified about the 
challenges the Longshore program has faced in resolving COVID-
19 claims brought by covered workers.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

               New Budget Authority and CBO Cost Estimate

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives and section 308(a) of the 
Congressional Budget and Impoundment Control Act of 1974, and 
pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives and section 402 of the Congressional 
Budget and Impoundment Control Act of 1974, the Committee has 
received the following estimate for H.R. 3114 from the Director 
of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 29, 2022.
Hon. Robert C. (Bobby) Scott,
Chairman, Committee on Education and Labor, House of Representatives, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3114, the 
Longshore and Harbor Workers' COVID-19 Compensation Act of 
2022.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Meredith 
Decker.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    

    The bill would:
           Increase the number of private-sector 
        maritime workers who receive workers' compensation 
        because of a COVID-19 diagnosis or coronavirus exposure
           Reimburse private-sector employers and 
        insurance carriers for those claims
    Estimated budgetary effects would mainly stem from:
           Reimbursing employers and their insurance 
        carriers for workers' compensation benefits
    Areas of significant uncertainty include:
           Projecting the percentage of affected 
        maritime workers who would file claims under the bill
    Bill summary: H.R. 3114 would make it easier for private-
sector maritime workers covered by the Longshore and Harbor 
Workers' Compensation Act (LHWCA) who are diagnosed with COVID-
19 or who are ordered not to work because of coronavirus 
exposure to receive workers' compensation benefits. Under 
current law, covered workers who have contracted COVID-19 can 
receive workers' compensation benefits only if they can 
demonstrate that their illness was caused by a workplace 
exposure. H.R. 3114 would create a legal presumption that 
maritime workers contracted COVID-19 on the job, decreasing the 
burden of proof on those workers. The LHWCA requires any 
medical, disability, or survivor benefits for those workers to 
be paid by the employer or the employer's insurance carrier. 
Finally, H.R. 3114 would require the Department of Labor (DOL) 
to reimburse employers and insurance carriers for the cost of 
that compensation.
    Estimated Federal cost: The estimated budgetary effect of 
H.R. 3114 is shown in Table 1. The costs of the legislation 
fall within budget functions 500 (education, training, 
employment, and social services) and 600 (income security).

                                                   TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 3114
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     By fiscal year, millions of dollars--
                                                      --------------------------------------------------------------------------------------------------
                                                        2022   2023   2024   2025   2026   2027   2028   2029   2030   2031   2032  2022-2027  2022-2032
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Increases in Direct Spending
 
Estimated Budget Authority...........................      0    214     63     15      8      6      6      6      6      6      6       306        336
Estimated Outlays....................................      0    214     63     15      8      6      6      6      6      6      6       306        336
 
                                                     Increases in Spending Subject to Appropriation
 
Estimated Authorization..............................      0      3      2      0      0      0      0      0      0      0      0         5          5
Estimated Outlays....................................      0      1      1      1      *      *      *      *      *      *      *         4          5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding; * = between zero and $500,000.

    Basis of estimate: For this estimate, CBO assumes that H.R. 
3114 will be enacted near the end of fiscal year 2022 and that 
the estimated amounts will be available in each year. Estimated 
outlays are based on historical spending patterns for the 
affected programs.
    Direct spending: H.R. 3114 would make it easier for 
maritime workers to receive workers' compensation if they 
contracted COVID-19 or were ordered not to work because of 
coronavirus exposure by creating a legal presumption that the 
illness or exposure were work related. The bill would apply to 
approximately 200,000 maritime workers who have been or will be 
covered under the LHWCA between January 27, 2020, and January 
27, 2024.
    Under the bill, employers and insurance carriers would not 
be reimbursed for workers' compensation benefits paid before 
enactment if a worker already had received coronavirus-related 
benefits under the LHWCA. As of the end of fiscal year 2021, 
fewer than 100workers who had filed such claims had been 
awarded benefits. DOL would not be required to reimburse 
benefits newly awarded under the bill if the worker's employer 
does not comply with certain safety and health guidelines and 
standards issued by the Occupational Safety and Health 
Administration and by other federal, state, or local 
authorities. CBO expects that most employers would comply with 
those guidelines and thus would be reimbursed for benefits.
    Using data from DOL about current LHWCA claims and based on 
CBO's projections of infections, hospitalizations, and deaths 
for adults between the ages of 20 and 64, CBO estimates that 
about 12 percent of covered workers would receive medical, 
disability, or survivor benefits under the bill. CBO does not 
anticipate that all covered workers diagnosed with COVID-19 or 
quarantined because of exposure before enactment of this bill 
would apply for or receive benefits. The average cost of those 
benefits per worker would vary significantly, from relatively 
small reimbursements for testing or doctors' visits to larger 
monthly payments for the spouses and children of workers who 
die. Reimbursing employers' and insurance carriers' costs would 
increase direct spending by $336 million over the 2022-2032 
period, CBO estimates.
    Spending subject to appropriation: Using information from 
DOL, CBO expects the department would need three additional 
employees to review LHWCA claims and reimburse employers or 
their insurance carriers. On that basis, CBO estimates that 
those administrative costs would total $4 million over the 
2022-2027 period and $5 million over the 2022-2032 period; such 
spending would be subject to the availability of appropriated 
funds.
    Uncertainty: CBO's estimates of the budgetary effects of 
H.R. 3114 are subject to uncertainty. The number of workers 
affected by the coronavirus, as well as the percentage of 
affected workers who would file claims, could differ 
significantly from CBO's projections. As a result, actual costs 
could be higher or lower than CBO estimates.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending. The net 
changes in outlays that are subject to those pay-as-you-go 
procedures are shown in Table 1.
    Increase in long-term deficits: CBO estimates that enacting 
H.R. 3114 would not increase on-budget deficits by more than $5 
billion in any of the four consecutive 10-year periods 
beginning in 2033.
    Mandates: H.R. 3114 would impose a private-sector mandate 
as defined in the Unfunded Mandates Reform Act (UMRA) by 
establishing a legal presumption that maritime workers 
diagnosed with COVID-19 or ordered not to work because of 
coronavirus exposure are entitled to workers' compensation 
benefits if they can demonstrate that their illness was caused 
by a workplace exposure. Because the bill would expand the 
availability of compensation, it would increase the cost of an 
existing mandate on employers and insurance carriers to pay 
those benefits. CBO estimates that the cost of the mandate 
would exceed the threshold for private-sector mandates 
established in UMRA ($184 million in 2022, adjusted annually 
for inflation) in 2023. The federal government would reimburse 
employers and insurance carriers for those mandate costs.
    Previous CBO estimate: On February 17, 2021, CBO 
transmitted a revised cost estimate for the reconciliation 
recommendations of the House Committee on Education and Labor 
resulting from S. Con. Res. 5, the Concurrent Resolution on the 
Budget for Fiscal Year 2021. Section 2104 is similar to H.R. 
3114. Both provisions would establish the presumption that 
maritime workers with COVID-19 have contracted the illness on 
the job and allow employers and insurance carriers to be 
reimbursed for the costs of workers' compensation benefits. 
However, the version in the reconciliation recommendations 
would cover workers only through January 2023 and allow for 
reimbursement through 2030. CBO's cost estimates reflect those 
differences.
    Estimate prepared by: Federal Costs: Meredith Decker; 
Mandates: Andrew Laughlin.
    Estimate reviewed by: Elizabeth Cove Delisle, Chief, Income 
Security Cost Estimates Unit; Kathleen FitzGerald, Chief, 
Public and Private Mandates Unit; H. Samuel Papenfuss, Deputy 
Director of Budget Analysis; Theresa Gullo, Director of Budget 
Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3114. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget and Impoundment 
Control Act of 1974.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 3114, as reported, are shown as follows:

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

             LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT




           *       *       *       *       *       *       *
                              special fund

  Sec. 44. (a) There is hereby established in the Treasury of 
the United States a special fund. Such fund shall be 
administered by the Secretary. The Treasurer of the United 
States shall be the custodian of such fund, and all moneys and 
securities in such fund shall be held in trust by such 
Treasurer and shall not be money or property of the United 
States.
  (b) The Treasurer is authorized to disburse moneys from such 
fund only upon order of the Secretary. He shall be required to 
give bond in an amount to be fixed and with securities to be 
approved by the Secretary of the Treasury and the Comptroller 
General of the United States conditioned upon the faithful 
performance of his duty as custodian of such fund.
  (c) Payments into such fund shall be made as follows:
  (1) Whenever the Secretary determines that there is no person 
entitled under this Act to compensation for the death of an 
employee which would otherwise be compensable under this Act, 
the appropriate employer shall pay $5,000 as compensation for 
the death of such an employee.
  (2) At the beginning of each calendar year the Secretary 
shall estimate the probable expenses of the fund during that 
calendar year and the amount of payments required (and the 
schedule therefor) to maintain adequate reserves in the fund. 
Each carrier and self-insurer shall make payments into the fund 
on a prorated assessment by the Secretary determined by--
          (A) computing the ratio (expressed as a percent) of 
        (i) the carrier's or self-insured's workers' 
        compensation payments under this Act during the 
        preceding calendar year, to (ii) the total of such 
        payments by all carriers and self-insureds under this 
        Act during such year;
          (B) computing the ratio (expressed as a percent) of 
        (i) the payments under section 8(f) of this Act during 
        the preceding calendar year which are attributable to 
        the carrier or self-insured, to (ii) the total of such 
        payments during such year attributable to all carriers 
        and self-insureds;
          (C) dividing the sum of the percentages computed 
        under subparagraphs (A) and (B) for the carrier or 
        self-insured by two; and
          (D) multiplying the percent computed under 
        subparagraph (C) by such probable expenses of the fund 
        (as determined under the first sentence of this 
        paragraph).
  (3) All amounts collected as fines and penalties under the 
provisions of this Act shall be paid into such fund.
  (d)(1) For the purpose of making rules, regulations, and 
determinations under this section under and for providing 
enforcement thereof, the Secretary may investigate and gather 
appropriate data from each carrier and self-insurer. For that 
purpose, the Secretary may enter and inspect such places and 
records (and make such transcriptions thereof), question such 
employees, and investigate such facts, conditions, practices, 
or matters as he may deem necessary or appropriate.
  (2) Each carrier and self-insurer shall make, keep, and 
preserve such records, and make such reports and provide such 
additional information, as prescribed by regulation or order of 
the Secretary, as the Secretary deems necessary or appropriate 
to carry out his responsibilities under this section.
  (3) For the purpose of any hearing or investigation related 
to determinations or the enforcement of the provisions of this 
section, the provisions of sections 9 and 10 (relating to the 
attendance of witnesses and the production of books, papers, 
and documents) of the Federal Trade Commission Act of September 
16, 1914, as amended (U.S.C., title 15, secs. 49 and 50), are 
hereby made applicable to the jurisdiction, powers, and duties 
of the Secretary of Labor.
  (e) The Treasurer of the United States shall deposit any 
moneys paid into such fund into such depository banks as the 
Secretary may designate and may invest any portion of the funds 
which, in the opinion of the Secretary, is not needed for 
current requirements, in bonds or notes of the United States or 
of any Federal land bank.
  (f) Neither the United States nor the Secretary shall be 
liable in respect of payments authorized under section 8 in an 
amount greater than the money or property deposited in or 
belonging to such fund.
  (g) The Comptroller General of the United States shall audit 
the account for such fund, but the action of the Secretary in 
making payments from such fund shall be final and not subject 
to review, and the Comptroller General is authorized and 
directed to allow credit in the accounts of any disbursing 
officer of the Secretary for payments made from such fund 
authorized by the Secretary.
  (h) All civil penalties and unpaid assessments provided for 
in this Act shall be collected by civil suit brought by the 
Secretary.
  (i) The proceeds of this fund shall be available for 
payments:
          (1) Pursuant to section 10 with respect to certain 
        initial and subsequent annual adjustments in 
        compensation for total permanent disability or death.
          (2) Under section 8 (f) and (g), under section 18(b), 
        and under section 39(c).
          (3) To repay the sums deposited in the fund pursuant 
        to subsection (d).
          (4) To defray the expense of making examinations as 
        provided in section 7(e).
  (j) The fund shall be audited annually and the results of 
such audit shall be included in the annual report required by 
section 42.

SEC. 45. LONGSHORE COVID-19 FUND

  (a) In General.--There is established in the Treasury of the 
United States the Longshore COVID-19 Fund (in this section, 
referred to as the `Fund'), which consists of sums that are 
appropriated to the Fund under section 3(c) of the Longshore 
and Harbor Workers' COVID-19 Compensation Act of 2022.
  (b) Expenditures.--Amounts in the Fund shall be available for 
the reimbursement of an employer or the employer's carrier for 
compensation payments and expenses approved under section 3 of 
the Longshore and Harbor Workers' COVID-19 Compensation Act of 
2022, including disability compensation, death benefits, 
funeral and burial expenses, medical or other related costs for 
treatment and care, and reasonable and necessary allocated 
claims expenses paid under this Act when reimbursement is 
required under section 3 of the Longshore and Harbor Workers' 
COVID-19 Compensation Act of 2022, subject to any limitations 
in such section.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              INTRODUCTION

Longshore and Harbor Workers' Compensation Act
    Enacted in 1927, the Longshore and Harbor Workers' 
Compensation Act (LHWCA) provides compensation for on-the-job 
injuries to private-sector maritime workers engaged in 
longshore (the loading and unloading of ships), harbor 
(repairing, building, and deconstructing ships), or other 
maritime occupations on or adjacent to the navigable waters of 
the United States.\1\ In 2019, $1.748 billion in LHWCA workers' 
compensation benefits were paid to beneficiaries.\2\
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    \1\33 U.S.C. Sec. 903.
    \2\Nat'l Acad. of Soc. Ins., Workers' Compensation: Benefits, 
Coverage, and Costs (Oct. 2021), https://www.nasi.org/wp-content/
uploads/2021/10/2021-Workers-Compensation-Report-2019-Data.pdf.
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    The Department of Labor's Office of Workers' Compensation 
Programs (OWCP) administers the longshore program, although 
private insurers or self-insured firms largely cover the 
program's workers' compensation benefits.\3\ The LHWCA requires 
employers to purchase coverage for their employees' medical and 
disability benefits, as well as for vocational rehabilitation 
should an employee be injured or become ill in the course of 
employment.\4\ In addition, if a covered worker's injury 
results in death, the LHWCA provides for a payment to help 
offset funeral expenses and a monetary wage-replacement benefit 
to the surviving spouse and any dependents.\5\ OWCP determines 
benefit eligibility and the amount of compensation.\6\
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    \3\33 U.S.C. Sec. 904(a).
    \4\33 U.S.C. Sec. 908.
    \5\33 U.S.C. Sec. 909(a)-(c).
    \6\Cong. Res. Serv., The Longshore and Harbor Workers' Compensation 
Act (LHWCA): Overview of Workers' Compensation for Certain Private-
Sector Maritime Workers (Mar. 16, 2021), https://www.crs.gov/Reports/
R41506?source=search&guid=cf2d377f535d4c
00881f129efe8bf912&index=0.
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H.R. 3114
    H.R. 3114, the Longshore and Harbor Workers' COVID-19 
Compensation Act of 2022, establishes a conclusive presumption 
that all maritime workers covered under the LHWCA who contract 
COVID-19 contracted the virus through work and are eligible for 
medical benefits, lost wages, and survivor benefits. Further, 
the conclusive presumption applies to individuals working in 
covered employment at any time between January 27, 2020, and 
January 27, 2024, who were diagnosed with COVID-19 or ordered 
not to work by their employer or a federal, state, or local 
agency because of risk of exposure to persons diagnosed with 
COVID-19 in the workplace during that period. The Congressional 
Budget Office (CBO) estimates H.R. 3114 would apply to 
approximately 200,000 maritime workers.\7\ Self-insured 
employers and insurance carriers in the program will be 
reimbursed from the U.S. Treasury Employees' Compensation Fund 
for payments made under H.R. 3114, so long as the employer has 
complied with all applicable safety and health guidelines 
related to the prevention of occupational exposure to COVID-19.
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    \7\CBO, Cost Estimate (Aug. 29, 2022), https://www.cbo.gov/system/
files/2022-08/hr3114.pdf.
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    H.R. 3114 is another attempt by Democrats to use the 
pandemic as an excuse to expand the role of the federal 
government. The conclusive presumption created by the 
legislation is extremely broad, conclusively presuming that 
maritime workers who contract COVID-19 contracted the virus 
through work-related activities. H.R. 3114 would thereby create 
new and unreasonable financial burdens on private maritime 
employers, threatening our nation's supply chain.
    This legislation is also inappropriate because individuals 
in maritime employment, who primarily work outside, are not at 
increased risk of contracting COVID-19 at work as compared to 
the general population. Further, H.R. 3114 perverts the intent 
of the LHWCA as a workers' compensation program by turning it 
into a federal benefits program not based on workplace injury 
or illness or into a guaranteed income replacement program.
    It is no surprise that Democrats are moving this ill-
advised legislation, which is supported by the International 
Longshore and Warehouse Union and other unions, during ongoing 
labor negotiations between the West Coast ports and 
dockworkers.\8\ Time and time again, Democrats have put their 
thumb on the scale in support of their Big Labor allies. For 
the sake of the nation's supply chain and taxpayers, Congress 
should reject this approach and preserve the integrity of the 
LHWCA.
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    \8\Eleanor Mueller, West Coast port labor talks carry high stakes 
for economy, midterms, POLITICO, Apr. 11, 2022, https://
www.politico.com/news/2022/04/11/west-coast-port-labor-talks-economy-
midterms-00023058.
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    H.R. 3114 CREATES UNREASONABLE COSTS FOR PRIVATE EMPLOYERS AND 
                               TAXPAYERS

    H.R. 3114 would create new and unreasonable financial 
burdens on taxpayers and private companies in maritime 
services, which could cripple an industry already struggling 
with worker shortages and supply chain issues. The broad, 
conclusive presumption in the legislation would require that 
workers' compensation benefits are covered for maritime workers 
who may have contracted COVID-19 outside of work. Workers are 
also covered who were exposed to COVID-19 and ordered to remain 
home by a public health official even though they did not test 
positive for the virus.
    Official cost estimates on the legislation's broad, 
conclusive presumption, while already high, are understated. 
CBO assumes that employers and the employers' insurance 
carriers would be reimbursed for the cost of the benefits and 
estimates that enacting H.R. 3114 would cost taxpayers $336 
million.\9\
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    \9\CBO, supra note 7.
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    However, this CBO score only accounts for costs to the 
federal government and does not account for the increased costs 
for employers and workers' compensation insurance plans. These 
include administrative costs and costs associated with the 
potential that federal appropriations will not provide for 
timely and complete reimbursement. The maritime industry 
projects that the cost of H.R. 3114 to the maritime industry 
would be approximately $785 million--on top of the costs to 
taxpayers.\10\ H.R. 3114 creates unnecessary costs to private 
employers and the federal government for workers who are 
already eligible for a range of private-sector and LHWCA 
benefits.
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    \10\Letter from Am. Prop. Cas. Ins. Ass'n et al. to Rep. Bobby 
Scott et al. (Mar. 14, 2022).
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    Moreover, H.R. 3114 will hurt the nation's supply chain. 
According to a letter from a broad group of employers including 
the National Association of Waterfront Employers, increased 
claims costs that are not directly reimbursed under H.R. 3114 
would lead to increased costs of maritime services.\11\ The 
last thing that Congress should do is worsen the nation's 
supply chain crisis.
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    \11\Id.
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           MARITIME IS NOT A HIGH-RISK INDUSTRY FOR COVID-19

    While Democrats claim that H.R. 3114 is necessary, they 
offer little evidence that maritime workers are more likely to 
contract COVID-19 on the job than other workers or that they 
are at an increased risk of contracting the virus than the 
public. In fact, the Occupational Safety and Health 
Administration (OSHA) does not identify maritime workplaces as 
higher risk for COVID-19.\12\ Moreover, many maritime employees 
work in outdoor environments, which the Centers for Disease 
Control and Prevention (CDC) has stated is less risky for 
transmission.\13\
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    \12\According to OSHA, higher-risk workplaces include health care; 
manufacturing; meat, seafood, and poultry processing; high-volume 
retail and grocery; and agricultural processing settings. OSHA, 
Protecting Workers: Guidance on Mitigating and Preventing the Spread of 
COVID-19 in the Workplace, https://www.osha.gov/coronavirus/
safework#appendix.
    \13\CDC, Scientific Brief: SARS-CoV-2 Transmission, https://
www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-
transmission.html#anchor_1619805200745.
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    Further, COVID-19 is highly transmissible. Maritime workers 
could contract the virus in virtually any setting. Yet, under 
H.R. 3114, maritime workers are conclusively presumed to have 
contracted the virus at work, even if the transmission in fact 
occurred away from work such as at home or at a restaurant--
which is both possible and statistically more likely.
    Placing the full burden of all maritime COVID-19 cases on 
the shoulders of employers and taxpayers is unwarranted. In 
National Federation of Independent Business v. OSHA, the 
Supreme Court ruled that COVID-19 is not an occupational hazard 
in most workplaces. In limiting OSHA`s power to implement a 
sweeping public health measure as an emergency workplace safety 
regulation, the Court observed the following:

          Although COVID-19 is a risk that occurs in many 
        workplaces, it is not an occupational hazard in most. 
        COVID-19 can and does spread at home, in schools, 
        during sporting events, and everywhere else that people 
        gather. That kind of universal risk is no different 
        from the day-to-day dangers that all face from crime, 
        air pollution, or any number of communicable diseases. 
        Permitting OSHA to regulate the hazards of daily life--
        simply because most Americans have jobs and face those 
        same risks while on the clock--would significantly 
        expand OSHA's regulatory authority without clear 
        congressional authorization.\14\

    \14\142 S.Ct. 661, 665 (2022).

    There is no data indicating that maritime workers are more 
susceptible to the spread of COVID-19 in their workplaces. 
Creating a conclusive presumption is not justified and is 
inconsistent with the basic tenets of workers' compensation 
programs.

      H.R. 3114 INAPPROPRIATELY PERVERTS THE INTENT OF A WORKERS' 
                          COMPENSATION PROGRAM

    The purpose of the Longshore Program is to provide 
compensation for on-the-job injuries to private-sector maritime 
workers, including medical and disability benefits, and for 
vocational rehabilitation. According to the Congressional 
Research Service, the LHWCA is a workers' compensation system 
and not a federal benefits program unrelated to workplace 
injury or illness.\15\ H.R. 3114, however, changes the 
Longshore Program from one that provides benefits to injured 
workers to a system that guarantees wage replacement for 
workers regardless of whether they sustained an injury at work.
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    \15\Cong. Res. Serv., supra note 6.
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    In fact, this change would be unprecedented: since the 
LHWCA was enacted in 1927, there has never been a specific 
injury or illness that is presumed to be covered. Claims have 
always been evaluated on a case-by-case basis depending on the 
medical and supporting evidence available. H.R. 3114 would 
corrupt the longstanding process and remove necessary 
oversight.

      CLAIMS THAT STATES HAVE SIMILAR PRESUMPTIONS ARE INACCURATE

    Advocates for H.R. 3114 claim it is needed because many 
states have enacted COVID-19 presumptions for private sector 
employees covered by state workers' compensation programs. They 
say it is unfair that maritime workers are not eligible for the 
same benefits merely because they are covered by the LHWCA 
instead of state programs.\16\
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    \16\Press Release, Educ. Lab. Comm., Scott, Mrvan Introduce Bill to 
Secure Support for Longshore and Harbor Workers Who Contract COVID-19 
(May 12, 2021), https://edlabor.house.gov/media/press-releases/scott-
mrvan-introduce-bill-to-secure-support-for-longshore-and-harbor-
workers-who-contract-covid-19.
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    However, these assertions ignore the types of workers that 
are covered under these presumptions and the length of 
coverage. According to the National Conference of State 
Legislatures, while 28 states and Puerto Rico have taken action 
to extend workers' compensation coverage to include COVID-19 as 
a work-related illness, these bills vary greatly in their scope 
of coverage and presumption of eligibility.\17\ For instance, 
Arkansas' law defines COVID-19 as an occupational disease that 
could be covered by its workers' compensation program, but the 
law does not create a presumption of coverage. Utah and 
Wisconsin limit the coverage to first responders and health 
care workers. As of June 1, 2022, only seven states still had a 
COVID-19 or infectious disease presumption in effect, while 
maritime workers under H.R. 3114 would be covered through 
January 27, 2024.\18\
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    \17\Josh Cunningham, Nat'l Conf. of State Leg., COVID-19: Workers' 
Compensation (Jan. 24, 2022), https://www.ncsl.org/research/labor-and-
employment/covid-19-workers-compensation.aspx#::text All%20workers%20 
whose%20jobs%20 make,process%20 of%20filing%20a%20
claim.
    \18\Laura Kersey, Nat'l Council on Compensation Ins., COVID-19 
Workers Compensation Presumptions Update--Five Things You Need to Know 
(June 20, 2022), https://www.ncci.com/Articles/Pages/Insights-COVID-19-
WorkersComp-Presumptions-Update-5-Things-to-Know.aspx.
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    Further, most state law presumptions are rebuttable, 
meaning the employer has the opportunity to rebut the claim. In 
contrast, H.R. 3114 creates a conclusive presumption of 
eligibility that the employer cannot rebut.

THE LHWCA ALREADY PROVIDES A REBUTTABLE PRESUMPTION OF ELIGIBILITY FOR 
        INJURIES AND ILLNESSES BUT NOT A CONCLUSIVE PRESUMPTION

    H.R. 3114 is unnecessary because the LHWCA already provides 
a rebuttable presumption that an injury or illness is work 
related, including COVID-19 claims.\19\ After an employee makes 
a prima facie case, the LHWCA provides a presumption 
establishing that the injury or illness is work related ``in 
the absence of substantial evidence to the contrary.''\20\ An 
employer or carrier then has the burden to refute the 
employee's claim. Because there is already a rebuttable 
presumption under the LHWCA in which the burden rests on the 
employer to refute the claim, including for claims related to 
COVID-19, it is not necessary and would be irresponsible to 
create a conclusive presumption in which COVID-19 claims are 
automatically successful, as H.R. 3114 does.
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    \19\OWCP, Claims Under the Longshore and Harbor Workers' 
Compensation Act Due to COVID-19: FAQ'S for Employer/Carriers, https://
www.dol.gov/agencies/owcp/dlhwc/Covid-19-Employers-and-Carriers.
    \20\33 U.S.C. Sec. 920(a).
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                        H.R. 3114 IS UNNECESSARY

    This legislation is unnecessary because most workers 
covered under the LHWCA are private sector workers who already 
have access to disability benefits. Should a diagnosis of 
COVID-19 prevent an employee from working, many of these 
employees are entitled to employer-provided sick leave.\21\ For 
much of the coverage period in H.R. 3114, private sector 
employers are required to provide existing sick leave and 
emergency paid sick leave under the Families First Coronavirus 
Response Act of 2020.\22\
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    \21\Eleanor Mueller, supra note 7.
    \22\Pub. L. No. 116-127, Div. E.
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    Additionally, many of these workers have access to medical 
treatment for COVID-19 through their employer-sponsored health 
insurance coverage. Further, in many cases, employees who have 
contracted COVID-19 and would be eligible for benefits under 
H.R. 3114 have already been compensated from employer-sponsored 
benefits or through the regular claims process under FECA. 
Therefore, the retroactive, conclusive presumption under H.R. 
3114 is unnecessary.

                          REPUBLICAN AMENDMENT

    Rep. Fred Keller (R-PA) offered a substitute amendment to 
ensure H.R. 3114 does not burden job creators and taxpayers 
with unnecessary costs. It instructs the Government 
Accountability Office (GAO) to study the medical benefits and 
treatments of maritime workers who contract COVID-19. Congress 
needs to have a better understanding of how this program is 
working before changing the law, and the last time GAO examined 
the Longshore Program was 22 years ago. The Committee should be 
doing everything in its power to ensure that business owners 
can recover from forced shutdowns during the pandemic instead 
of placing even more regulations and red tape on them. The 
amendment would increase our understanding of what workers need 
without harming the job creators on which our economy and 
supply chains rely. Unfortunately, Committee Democrats rejected 
this amendment along party lines.

                               CONCLUSION

    H.R. 3114 is another example of Democrats pushing the 
forever pandemic mindset to enact progressive policies. Under 
this legislation, when the public health emergency declaration 
is no longer in effect, workers will still be able to take 
advantage of the bill's provisions. Democrats fail to provide 
evidence that the extremely broad, conclusive presumption in 
H.R. 3114 is necessary or that longshore workers are more 
likely to contract COVID-19 on the job than other workers. Big 
Labor's support for this legislation is no coincidence, and the 
last thing this Committee should do is involve itself in 
ongoing labor negotiations at the West Coast ports. H.R. 3114 
would establish a precedent at odds with the U.S. workers' 
compensation system which could be abused in the future to 
expand government programs unnecessarily and hurt job creators 
and taxpayers.
                                   Virginia Foxx,
                                           Ranking Member.
                                   Joe Wilson.
                                   Glenn ``GT'' Thompson.
                                   Tim Walberg.
                                   Glenn Grothman.
                                   Rick W. Allen.
                                   Jim Banks.
                                   James Comer.
                                   Russ Fulcher.
                                   Fred Keller.
                                   Mariannette Miller Meeks, M.D.
                                   Burgess Owens.
                                   Bob Good.
                                   Lisa C. McClain.
                                   Diana Harshbarger.
                                   Mary E. Miller.
                                   Scott Fitzgerald.
                                   Chris Jacobs.
                                   Joe Sempolinski.

                                  [all]