Is hazard pay an allowable expense under Elementary and Secondary School Emergency Relief Fund (“ESSER”) II or III?

Neither the Elementary and Secondary School Emergency Relief (“ESSER”), ESSER II (as found in the Coronavirus Response and Relief Supplemental Appropriations Act), nor ESSER III (as set forth in the American Rescue Plan Act of 2021 (“ARP”)) funds expressly authorize hazard pay. However, there may be alternative funding sources available to provide employees with hazard or premium pay, especially where an employee qualifies as an “eligible worker” under the ARP.

Title II, Part I, Section 2001 of the ARP, which covers ESSER III, states that funds may be used to “maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency.”[1] Section 2001 does not identify hazard pay or premium pay as eligible uses of ESSER III funds.

Regarding ESSER II funds, the U.S. Department of Education Fact Sheet states “ESSER II funds may be used for the same allowable purposes as ESSER and ARP ESSER, including hiring new staff and avoiding layoffs.” [2] The Coronavirus Aid Relief, and Economic Security (“CARES”) Act Section 18003 ESSER, [3] like the ESSER section of the ARP, does not identify hazard or premium pay as an eligible use of funds, but allows for:

[o]ther activities that are necessary to maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency. [4]

Though ESSER II or III do not appear to allow hazard or premium pay, there are other mechanisms for municipalities to access similar funds in certain situations. ARP Section 9901 of the U.S. Department of the Treasury (“Treasury”) Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) allows for funds to be used to:

respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers of the State, territory, or Tribal government that are performing such essential work, or by providing grants to eligible employers that have eligible workers who perform essential work. [5]  

The ARP’s section on the CSLFRF identifies eligible workers as:

those workers needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as each Governor of a State or territory, or each Tribal government, may designate as critical to protect the health and wellbeing of the residents of their State, territory, or Tribal government. [6]

Therefore, if the Governor or requisite governmental authority of a particular state has deemed teachers as essential workers, they may be able to receive premium pay under the CSLFRF. Section 9901 defines premium pay as:

an amount of up to $13 per hour that is paid to an eligible worker, in addition to wages or remuneration the eligible worker otherwise receives, for all work performed by the eligible worker during the COVID–19 public health emergency. Such amount may not exceed $25,000 with respect to any single eligible worker.