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Federal Register/Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 4397
<br /> that have eligible workers who perform questions regarding premium pay these commenters represented public
<br /> essential work." program structuring. This section employees, e.g., employees of facilities
<br /> Premium pay is designed to responds to the comments by addressing and public works;public utilities;
<br /> compensate workers that,by virtue of the three requirements in turn,then the courthouse employees;police, fire, and
<br /> their employment,were forced to take overall definition of premium pay and, emergency medical services;and waste
<br /> on additional burdens and make great finally,program structure. and wastewater services. Others were a
<br /> personal sacrifices as a result of the mixture of public and private sector
<br /> COVID-19 pandemic. Premium pay can Eligible�/Vorkers employees, e.g., coroners and medical
<br /> be thought of as hazard pay by another The ARPA defines "eligible workers" examiners;transportation infrastructure
<br /> name.258 as "those workers needed to maintain (specifically electric vehicle
<br /> During the public health emergency, continuity of operations of essential infrastructure and supply equipment);
<br /> employers'policies on COVID-19- critical infrastructure sectors and electric utilities,natural gas, and steam
<br /> related premium pay or hazard pay have additional sectors as each. . . supply; and grocery employees. Other
<br /> varied widely,with many essential [government]may designate as critical commenters requested that Treasury
<br /> workers not yet compensated for the to protect the health and wellbeing of prohibit certain occupations currently
<br /> heightened risks they have faced and [its] residents." The interim final rule included in the eligible workers
<br /> continue to face.259 Many of these supplemented this definition by definition(e.g.,police and corrections
<br /> workers earn lower wages on average identifying a list of"essential critical officers) from receiving premium pay for
<br /> and live in socioeconomically infrastructure sectors"whose workers performance of regular duties.
<br /> underserved communities as compared are eligible workers,based on the list of Commenters also asked Treasury to
<br /> to the general population.260 A recent sectors in the HEROES Act,a bill clarify which government workers are
<br /> study found that 25 percent of essential introduced in the House of included in the definition of eligible
<br /> workers were estimated to have low Representatives in 2020 that would have workers. The interim final rule included
<br /> household income,with 13 percent in provided premium pay to essential as an essential critical infrastructure
<br /> high-risk households.261 The low pay of workers.262 In addition to the critical sector, "any work performed by an
<br /> many essential workers makes them less infrastructure sectors defined in the employee of a State,local,or Tribal
<br /> able to cope with the financial interim final rule,the chief executive (or government." Some commenters
<br /> consequences of the pandemic or their equivalent) of a recipient government requested that Treasury adopt a
<br /> work-related health risks.As Americans may designate additional non-public 263 definition of eligible worker that
<br /> return to work and governments relax sectors as critical so long as doing so is includes all employees of the recipient
<br /> certain rules, essential workers will necessary to protecting the health and government;however,all public
<br /> continue to bear the brunt of the risk of wellbeing of the residents of such employees of state,local,and Tribal
<br /> maintaining the ongoing operation of jurisdiction. governments are already included in the
<br /> vital facilities and services.The added Public Comment:Treasury received interim final rule definition of"eligible
<br /> health risk to essential workers is one multiple comments on the definition of worker." Commenters asked whether
<br /> prominent way in which the pandemic "eligible worker"included in the this includes governments that did not
<br /> has amplified pre-existing interim final rule. Many commenters receive SURF funds (i.e., "non
<br /> socioeconomic inequities.Premium pay agreed with the definition of eligible recipient governments").Many
<br /> is designed to address the disparity worker adopted by Treasury. Other commenters from Tribal governments
<br /> between the critical services provided commenters sought clarification about requested that the definition of eligible
<br /> by and the risks taken by essential or changes to the definition of eligible worker,which includes "any work
<br /> workers and the relatively low worker,including the definition of performed by an employee of a. . .
<br /> compensation they tend to receive. eligible sectors,the inclusion of Tribal government," also include an
<br /> The interim final rule established a government workers in the definition of employee of a"Tribal enterprise"to
<br /> three-part framework for recipients eligible workers,and the process for remove uncertainty regarding which
<br /> seeking to use SURF funds for designating additional non-public employees are included.
<br /> premium pay. First,to receive premium sectors as eligible. Finally,commenters made
<br /> pay one must be an eligible worker. Some commenters asked Treasury to suggestions for the process by which the
<br /> Second, an eligible worker must also change how it identifies eligible sectors, chief executive (or equivalent) of a
<br /> perform essential work. Finally, including suggestions to add to or recipient government may designate
<br /> premium pay must respond to workers subtract from the list of eligible sectors. additional non-public sectors as critical.
<br /> performing essential work during the For example, some commenters asked Commenters asked that Treasury adopt
<br /> COVID-19 public health emergency. Treasury to consider using Bureau of a requirement that Treasury must
<br /> Most of the comments received by Labor Statistics (BLS)-Standard approve or deny any additional non-
<br /> Treasury pertaining to premium pay Occupational Classifications to identify public sector identified by the chief
<br /> related to these three requirements. specific sectors or occupations,in executive of a recipient government
<br /> Comments also addressed the definition contrast to the approach taken in the prior to implementation of the
<br /> of premium pay generally and posed recipient's program.
<br /> interim final rule,which included a Some commenters asked Treasury to
<br /> 25s See U.S.Department of Labor,Hazard Pay, mixture of economic sectors,industries, clarify whether their chief executive(or
<br /> https://www.dol.gov/general/topic/wages/ and occupations.Many commenters
<br /> hazardpay(last visited October 18,2021). asked Treasury to explicitly clarify that equivalent) could designate particular,
<br /> and In some cases all, employees of the
<br /> 259 Economic Policy Institute,Only 30%of those a particular industry or occupation is
<br /> working outside their home are receiving hazard covered by the definition of"essential recipient government as eligible for
<br /> pay(June 16,2020),https://www.epi.org/press/only- p pay.
<br /> 3o-of-those-working-outside-their-home-are- critical infrastructure sector." Some of premium
<br /> Response:In the final rule,
<br /> receiving-hazard-pay-black-and-hispanic-workers- p
<br /> Treasury will preserve the definition of
<br /> are-most-concerned-about-bringing-the- 262 See H.R.6800,116th Cong.(2020).
<br /> coronavirus-home./. 263 Note that the sectors defined in the interim "eligible worker" as it was defined in
<br /> 260 McCormack,supra note 65. final rule already include all state,local,and Tribal the interim final rule with minor
<br /> 261Id. government employees. modifications to clarify that all public
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