WASHINGTON ― Prized pandemic protections for defense contractors would be made permanent under the House’s defense policy bill, up for floor consideration next week.

The safeguards, originally from Section 3610 of the CARES Act, allowed the Pentagon to reimburse contractors for paid leave if employees aren’t working due to the COVID-19 pandemic. Congress has had to act several times to renew the reimbursement authority, currently set to lapse after Sept. 30.

The permanent protections are based on legislation from Reps. Rob Wittman, R-Va., and Anthony Brown, D-Md., called the Just in Case Act, which proposed expanded coverage for other emergencies, like hurricanes and floods. However, the bill passed out of committee with narrower, pandemic-specific language.

Industry groups are pressing for the broader emergency powers to be included in the final National Defense Authorization Act for 2022 and for a short-term extension in the meantime. Both the National Defense Industrial Association and Professional Services Council said extending and expanding the 3610 reimbursement authority is their top legislative priority.

“We do believe it’s ridiculous to have the authority necessary to retain the workforce be something that keeps expiring and having to be extended,” said David Berteau, the Professional Services Council’s president and chief executive. “We think there ought to be permanent authority that can be activated either at the agency level or the government-wide level, depending on the nature of a pandemic or other emergency situation.”

Kea Matory, the National Defense Industrial Association’s director of legislative policy, said “we have an opportunity to learn from our COVID-19 experiences and put in place tools that can help us respond in the future without having to recreate the wheel for the unforeseen emergencies.

“It’ll allow us not to have to go back to Congress every time, whether it’s the continuing pandemic ... or a hurricane like the Camp Lejeune got hit a few years ago,” she added.

Because the defense policy bill isn’t expected to pass Congress before 3610 authority runs out Sept. 30, NDIA and PSC are urging Congress to include an extension in an expected continuing resolution. With the end of the fiscal year approaching without a budget deal for 2022, Congress will have to pass a stop-gap CR, which would keep federal agencies operating at current funding levels.

Trade groups are pointing to the recent outbreak of the COVID’s Delta variant in their push.

“We’re really hoping to not have a lapse because we are seeing an increase from our companies in cases, and we’ve seen breakthroughs for those who are vaccinated,” Matory said. “Having the flexibility to manage their workforce given the Delta outbreak is really helpful in controlling the spread.”

The Government Accountability Office found paid leave reimbursements helped contractors retain employees, especially those with specialized skills or security clearances. As of March 31, the Defense Department had spent $73.2 million on 3610 reimbursements, but the reimbursements have also been used by NASA and the departments of energy and homeland security.

Though Congress has not passed appropriations specific to the reimbursements, agencies are authorized to make the reimbursements using any legally available funds.

By broad margins, lawmakers have passed multiple short-term extensions of the reimbursement authority, but it’s not entirely clear the level of support is for expanding it or making it permanent. Congress could simply opt instead to extend the authority on an annual basis, according to Mandy Smithberger, the director of the Center for Defense Information at the Project On Government Oversight.

“This is still a relatively new authority the department has been given,” Smithberger said. “Anything where we’re short-circuiting the usual processes, I just have a lot of reluctance to make emergency authorities permanent until we have a better understanding of how they’re actually functioning ... I just worry that taxpayers are going to get ripped off.”

Joe Gould is the Congress reporter for Defense News.

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