[House Report 117-526]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-526
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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).
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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
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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\
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\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\
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\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
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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\
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\22\Letter from Dr. Robert M. Bourgeois, Amer. Coll. of Occ. &
Envtl. Med., to Rep. Frank Mrvan (Mar. 15, 2022).
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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]