Longshore and Harbor Workers’ COVID–19 Compensation Act of 2022
Summary
House Report 117–526, dated September 29, 2022, is the report of the Committee on Education and Labor on H.R. 3114, the Longshore and Harbor Workers’ COVID–19 Compensation Act of 2022, submitted together with minority views; the committee reports the bill favorably with an amendment. The amendment provides that a covered employee who receives a diagnosis of COVID–19 is conclusively presumed to have an injury arising out of or in the course of employment, for the period beginning January 27, 2020, and ending on January 27, 2024. It also provides for reimbursement of employers or carriers from a Longshore COVID–19 Fund. The minority views, over the name of Virginia Foxx, Ranking Member, state that Democrats fail to provide evidence that the conclusive presumption is necessary.
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Cite this document
“Longshore and Harbor Workers’ COVID–19 Compensation Act of 2022.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crpt-crpt-117hrpt526-crpt-117hrpt526/
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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
29–008
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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 Com-
pensation 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 pre-
sumed to have an injury arising out of or in the course of employment for the pur-
pose of compensation under the Longshore and Harbor Workers’ Compensation Act.
(b) COVERED EMPLOYEE.—In this Act, the term ‘‘covered employee’’ means an indi-
vidual 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 diag-
nosis carried out duties which—
(i) required contact with members of the public, co-workers, or other indi-
viduals 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 re-
spect to a notice or claim to which subsection (a) applies, including disability com-
pensation, death benefits, funeral and burial expenses, and medical expenses, in cal-
culating 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 car-
rier shall be entitled to reimbursement pursuant to this Act for any compensa-
tion 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 allo-
cated 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 occu-
pational 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
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(B) a carrier—
(i) shall be a carrier for an employer that is in compliance with sub-
paragraph (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 re-
spect 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 Treas-
ury 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, Edu-
cation, 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 re-
spect 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 Occupa-
tional Safety and Health, determines could occur between an exposure to
the novel coronavirus and a diagnosis of COVID–19 resulting from such ex-
posure.
(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 pan-
demic by public health authorities.
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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 con-
sists 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 reimburse-
ment of an employer or the employer’s carrier for compensation payments and ex-
penses 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 rea-
sonable and necessary allocated claims expenses paid under this Act when reim-
bursement 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 work-
ers in maritime occupations, such as longshoring, ship repair, ship-
building, shipbreaking, and harbor construction, because of condi-
tions 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) pro-
vides workers’ compensation benefits to ensure that maritime
workers do not bear the hardships that stem from workplace ill-
nesses on their own. Under current law, however, maritime work-
ers must prove a direct connection between their illness and a spe-
cific 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 unprece-
dented pandemic.
H.R. 3114, the Longshore and Harbor Workers COVID–19 Com-
pensation 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 Janu-
ary 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 deter-
mined 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 mari-
time workers face in gaining access to LHWCA benefits when they
are exposed to COVID–19 on the job without burdening employers.
1 Longshore and Harbor Workers Compensation Act, 44 Stat. 1424 (33 U.S.C. § 901 et seq.).
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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 sub-
stituted the entirety of the text and redesignated the bill as the He-
roes 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. Depart-
ment of Labor (DOL), Washington, DC, testified about the chal-
lenges 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
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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 ju-
risdiction 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 assist-
ance, 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.
H.R. 3114, the Longshore and Harbor Workers COVID–19 Com-
pensation 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 diag-
nosed 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 in-
jury arising out of their employment for the purposes of compensa-
tion under the LHWCA.
H.R. 3114 is endorsed by the International Longshoreman’s Asso-
ciation; International Longshore and Warehouse Union; Metal
Trades Council of the AFL–CIO; Transportation Trades Depart-
ment 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 ex-
penses, 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
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 Amend-
ments of 1972, Pub. L. No. 92–576; Black Lung Benefits Act of 1972, Pub. L. No. 92–303; Fed-
eral Coal Mine Safety and Health Act of 1969, Pub. L. No. 91–173, Title IV.
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’ com-
pensation system, which is characterized by low benefits, many restrictions on eligibility and
medical care for recipients, and little independent oversight, and also secures employers immu-
nity 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).
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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,’’ pro-
viding 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
The LHWCA was enacted in the early 20th Century to extend
the Grand Bargain to some workers who were at risk of being ex-
cluded. 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 re-
sponded in 1927 by passing the LHWCA, which crafts a federal
program, modeled on a New York law,8 to extend workers’ com-
pensation coverage to these workers.9 Much of the original covered
work of longshoring, ship building, repair, breaking, and other har-
bor work moved further away from water with the rise of
containerization and other technological developments leading Con-
gress 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
The LHWCA provides wage-loss compensation, medical treat-
ment, return-to-work assistance, and vocational rehabilitation to
assist maritime workers working on or adjacent to America’s navi-
gable 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
5 Spieler, supra note 3, at 900–908.
6 Id.
7 Southern Pac. Co. v. Jensen, 244 U.S. 205 (1917).
8 Stuart Housel Smith, The Special Fund Under the Longshore and Harbor Workers’ Com-
pensation Act, 11 TUL. MAR. L.J. 71, 74 (1986).
9 Eric J. Zagrocki, Note, Worker’s Compensation—Longshoremen and Harbor Workers’ Com-
pensation 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).
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).
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of a worker’s wages and adjusted based on the number of depend-
ents in a household.15
The LHWCA benefits process is similar to state workers’ com-
pensation processes. Employers are required to either self-insure or
purchase insurance through a carrier. Injured or sickened employ-
ees submit a notice of their injury to their employer or their insur-
ance carrier and submit a claim to OWCP. If these claims are dis-
puted, OWCP initiates a conciliation process. If the dispute per-
sists, DOL Administrative Law Judges (ALJs) rule on the claim,
with appeals possible to the U.S. Courts of Appeals.16
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 per-
form 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, respon-
sible 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
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 hir-
ing 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.
15 SZYMENDERA, supra note 11.
16 Id.
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.
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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 an-
other 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 weath-
er 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
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, Inter-
national Longshore Association South Atlantic and Gulf Coast Dis-
trict 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
These conditions are not well known outside of the industry.
During a hearing on March 16, 2022 before the Committee’s Sub-
committee 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 facili-
ties.
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
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 oppor-
tunity 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 re-
pair, shipbuilding, and I have seen the very close quarters
and the hazardous exposures that they do have.21
18 Id.
19 Id.
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-work-
ers 1:28:29–1:29:03).
21 Id. (1:31:39–1:31:59).
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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 oper-
ating,’’ explained Dr. Robert M. Bourgeois, president of the Amer-
ican College of Occupational and Environmental Medicine in a let-
ter 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 pan-
demic.’’ 22
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, Ala-
bama.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 im-
pact 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
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 cov-
ered 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 eligi-
bility 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 Amer-
ican Rescue Plan Act a presumption that frontline federal workers
who contract COVID–19 are eligible for federal employees’ workers’
compensation.30
22 Letter from Dr. Robert M. Bourgeois, Amer. Coll. of Occ. & Envtl. Med., to Rep. Frank
Mrvan (Mar. 15, 2022).
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 Con-
tract 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).
27 LHWCA § 2(2) (33 U.S.C. § 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, § 4016.
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11
There is clear evidence that, without adding a presumption of eli-
gibility for compensation for COVID–19, the LHWCA is not ade-
quately 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 pay-
ments 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
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 pro-
vides that self-insured employers and insurance carriers will be re-
imbursed for the cost of claims paid out to workers covered under
this legislation. Access to reimbursement is contingent on employ-
ers complying with safety and health guidelines and standards re-
lated to COVID–19, including those issued by the Centers for Dis-
ease Control and Prevention (CDC), the Occupational Safety and
Health Administration (OSHA), and state regulators. Maritime em-
ployers 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’ com-
pensation 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 ap-
plicable 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 mari-
time infrastructure and the health of the maritime workforce. Re-
quiring employer compliance with the relevant guidance and stand-
ards to contain the spread of COVID–19 will accomplish this objec-
tive.
CONCLUSION
Without H.R. 3114, covered maritime workers will continue to
struggle to get access to the workers’ compensation benefits to
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/agen-
cies/owcp/dlhwc/LongshoreProgramPerformanceResults (last accessed Apr. 25, 2022).
33 Strengthening the Safety Net, supra note 20 (statement of Christopher Godfrey, OWCP Di-
rector, https://edlabor.house.gov/imo/media/doc/GodfreyChristopherTestimony120221.pdf).
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12
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 pan-
demic. They have been at the center of the supply chains that have
kept the economy functioning throughout unprecedented chal-
lenges. The pandemic has added new risks to the maritime work-
place, 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 miti-
gating 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 em-
ployment’’ under the LHWCA, who were employed between Janu-
ary 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 out-
break of COVID–19 will be ‘‘conclusively presumed’’ to have an in-
jury arising out of or in the course of employment for the purpose
of compensation under the LHWCA. Such employees will be enti-
tled 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 assess-
ments 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, insur-
ance carriers may not adjust a covered employer’s experience rat-
ing or annual premium based on claims paid by the carrier and re-
imbursed 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 cov-
ered employee.
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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 reim-
burse 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 Com-
mittee 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 expo-
sure 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 max-
imum span of time that the Secretary determines could occur be-
tween 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 bur-
ial 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 Im-
poundment 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
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14
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 de-
scribed 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:
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Insert offset folio 17 here HR526.001
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16
Insert offset folio 18 here HR526.002
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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 pur-
poses 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, includ-
ing any program that was included in a report to Congress pursu-
ant 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 ‘‘Strength-
ening the Safety Net for Injured Workers,’’ which was used to de-
velop H.R. 3114. Relevant to H.R. 3114, the Committee heard testi-
mony 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 Commit-
tee’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:
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18
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, August 29, 2022.
Hon. ROBERT C. (BOBBY) SCOTT,
Chairman, Committee on Education and Labor, House of Represent-
atives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
pared 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 di-
agnosis 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 re-
ceive workers’ compensation benefits. Under current law, covered
workers who have contracted COVID–19 can receive workers’ com-
pensation benefits only if they can demonstrate that their illness
was caused by a workplace exposure. H.R. 3114 would create a
Insert offset folio 21 here HR526.003
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19
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 insur-
ance 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– 2022–
2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2027 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 out-
lays are based on historical spending patterns for the affected pro-
grams.
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 ex-
posure 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 re-
imbursed 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 cer-
tain safety and health guidelines and standards issued by the Oc-
cupational 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
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20
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 chil-
dren 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 employ-
ees to review LHWCA claims and reimburse employers or their in-
surance carriers. On that basis, CBO estimates that those adminis-
trative costs would total $4 million over the 2022–2027 period and
$5 million over the 2022–2032 period; such spending would be sub-
ject 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 esti-
mates.
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 estab-
lishing 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 dem-
onstrate that their illness was caused by a workplace exposure. Be-
cause 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 an-
nually for inflation) in 2023. The federal government would reim-
burse 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 employ-
ers and insurance carriers to be reimbursed for the costs of work-
ers’ compensation benefits. However, the version in the reconcili-
ation recommendations would cover workers only through January
2023 and allow for reimbursement through 2030. CBO’s cost esti-
mates reflect those differences.
Estimate prepared by: Federal Costs: Meredith Decker; Man-
dates: Andrew Laughlin.
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21
Estimate reviewed by: Elizabeth Cove Delisle, Chief, Income Se-
curity 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 Rep-
resentatives 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 sub-
mitted cost estimate of the bill prepared by the Director of the Con-
gressional 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 cus-
todian 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 em-
ployee 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 es-
timate the probable expenses of the fund during that calendar year
and the amount of payments required (and the schedule therefor)
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22
to maintain adequate reserves in the fund. Each carrier and self-
insurer shall make payments into the fund on a prorated assess-
ment 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-in-
sured, to (ii) the total of such payments during such year at-
tributable to all carriers and self-insureds;
(C) dividing the sum of the percentages computed under sub-
paragraphs (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 provi-
sions of this Act shall be paid into such fund.
(d)(1) For the purpose of making rules, regulations, and deter-
minations 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 nec-
essary 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 de-
terminations 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 appli-
cable 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 require-
ments, 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,
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23
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 per-
manent 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 sub-
section (d).
(4) To defray the expense of making examinations as pro-
vided 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, re-
ferred to as the ‘Fund’), which consists of sums that are appro-
priated 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 com-
pensation 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.
* * * * * * *
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MINORITY VIEWS
INTRODUCTION
Longshore and Harbor Workers’ Compensation Act
Enacted in 1927, the Longshore and Harbor Workers’ Compensa-
tion 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 bil-
lion in LHWCA workers’ compensation benefits were paid to bene-
ficiaries.2
The Department of Labor’s Office of Workers’ Compensation Pro-
grams (OWCP) administers the longshore program, although pri-
vate 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 depend-
ents.5 OWCP determines benefit eligibility and the amount of com-
pensation.6
H.R. 3114
H.R. 3114, the Longshore and Harbor Workers’ COVID–19 Com-
pensation 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
1 33 U.S.C. § 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.
3 33 U.S.C. § 904(a).
4 33 U.S.C. § 908.
5 33 U.S.C. § 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.
(24)
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25
maritime workers.7 Self-insured employers and insurance carriers
in the program will be reimbursed from the U.S. Treasury Employ-
ees’ 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.
H.R. 3114 is another attempt by Democrats to use the pandemic
as an excuse to expand the role of the federal government. The con-
clusive 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 mari-
time 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 legis-
lation, which is supported by the International Longshore and
Warehouse Union and other unions, during ongoing labor negotia-
tions between the West Coast ports and dockworkers.8 Time and
time again, Democrats have put their thumb on the scale in sup-
port of their Big Labor allies. For the sake of the nation’s supply
chain and taxpayers, Congress should reject this approach and pre-
serve the integrity of the LHWCA.
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 pre-
sumption, while already high, are understated. CBO assumes that
employers and the employers’ insurance carriers would be reim-
bursed for the cost of the benefits and estimates that enacting H.R.
3114 would cost taxpayers $336 million.9
However, this CBO score only accounts for costs to the federal
government and does not account for the increased costs for em-
ployers and workers’ compensation insurance plans. These include
7 CBO, COST ESTIMATE (Aug. 29, 2022), https://www.cbo.gov/system/files/2022-08/hr3114.pdf.
8 Eleanor Mueller, West Coast port labor talks carry high stakes for economy, midterms, PO-
LITICO, Apr. 11, 2022, https://www.politico.com/news/2022/04/11/west-coast-port-labor-talks-
economy-midterms-00023058.
9 CBO, supra note 7.
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26
administrative costs and costs associated with the potential that
federal appropriations will not provide for timely and complete re-
imbursement. The maritime industry projects that the cost of H.R.
3114 to the maritime industry would be approximately $785 mil-
lion—on top of the costs to taxpayers.10 H.R. 3114 creates unneces-
sary costs to private employers and the federal government for
workers who are already eligible for a range of private-sector and
LHWCA benefits.
Moreover, H.R. 3114 will hurt the nation’s supply chain. Accord-
ing to a letter from a broad group of employers including the Na-
tional Association of Waterfront Employers, increased claims costs
that are not directly reimbursed under H.R. 3114 would lead to in-
creased costs of maritime services.11 The last thing that Congress
should do is worsen the nation’s supply chain crisis.
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 More-
over, many maritime employees work in outdoor environments,
which the Centers for Disease Control and Prevention (CDC) has
stated is less risky for transmission.13
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 con-
tracted 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 work-
places. 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 work-
places, it is not an occupational hazard in most. COVID–
19 can and does spread at home, in schools, during sport-
ing 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 num-
ber of communicable diseases. Permitting OSHA to regu-
late the hazards of daily life—simply because most Ameri-
cans have jobs and face those same risks while on the
10 Letter from Am. Prop. Cas. Ins. Ass’n et al. to Rep. Bobby Scott et al. (Mar. 14, 2022).
11 Id.
12 According to OSHA, higher-risk workplaces include health care; manufacturing; meat, sea-
food, and poultry processing; high-volume retail and grocery; and agricultural processing set-
tings. 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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27
clock—would significantly expand OSHA’s regulatory au-
thority without clear congressional authorization.14
There is no data indicating that maritime workers are more sus-
ceptible 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 compensa-
tion for on-the-job injuries to private-sector maritime workers, in-
cluding medical and disability benefits, and for vocational rehabili-
tation. According to the Congressional Research Service, the
LHWCA is a workers’ compensation system and not a federal bene-
fits 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 re-
placement for workers regardless of whether they sustained an in-
jury at work.
In fact, this change would be unprecedented: since the LHWCA
was enacted in 1927, there has never been a specific injury or ill-
ness that is presumed to be covered. Claims have always been eval-
uated on a case-by-case basis depending on the medical and sup-
porting evidence available. H.R. 3114 would corrupt the long-
standing 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
However, these assertions ignore the types of workers that are
covered under these presumptions and the length of coverage. Ac-
cording to the National Conference of State Legislatures, while 28
states and Puerto Rico have taken action to extend workers’ com-
pensation 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’ com-
pensation 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
14 142 S.Ct. 661, 665 (2022).
15 CONG. RES. SERV., supra note 6.
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.
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-compensa-
tion.aspx#:∼:text All%20workers%20 whose%20jobs%20 make,process%20 of%20filing%20a%20
claim.
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28
maritime workers under H.R. 3114 would be covered through Janu-
ary 27, 2024.18
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 ELI-
GIBILITY 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 re-
lated 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.
H.R. 3114 IS UNNECESSARY
This legislation is unnecessary because most workers covered
under the LHWCA are private sector workers who already have ac-
cess 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 ex-
isting sick leave and emergency paid sick leave under the Families
First Coronavirus Response Act of 2020.22
Additionally, many of these workers have access to medical treat-
ment for COVID–19 through their employer-sponsored health in-
surance 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 ben-
efits or through the regular claims process under FECA. Therefore,
the retroactive, conclusive presumption under H.R. 3114 is unnec-
essary.
REPUBLICAN AMENDMENT
Rep. Fred Keller (R–PA) offered a substitute amendment to en-
sure H.R. 3114 does not burden job creators and taxpayers with
unnecessary costs. It instructs the Government Accountability Of-
18 LAURA KERSEY, NAT’L COUNCIL ON COMPENSATION INS., COVID–19 WORKERS COMPENSA-
TION 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.
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. § 920(a).
21 Eleanor Mueller, supra note 7.
22 Pub. L. No. 116–127, Div. E.
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29
fice (GAO) to study the medical benefits and treatments of mari-
time workers who contract COVID–19. Congress needs to have a
better understanding of how this program is working before chang-
ing the law, and the last time GAO examined the Longshore Pro-
gram 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 regu-
lations and red tape on them. The amendment would increase our
understanding of what workers need without harming the job cre-
ators 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 legisla-
tion, when the public health emergency declaration is no longer in
effect, workers will still be able to take advantage of the bill’s pro-
visions. 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 ex-
pand 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.
Æ
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