[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4248 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 4248
To amend the Employee Retirement Income Security Act of 1974 to include
a voluntary option for qualified flexible workplace arrangements.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 30, 2021
Mrs. Miller-Meeks (for herself, Ms. Foxx, Mrs. Rodgers of Washington,
Mr. Thompson of Pennsylvania, and Mr. Walberg) introduced the following
bill; which was referred to the Committee on Education and Labor
_______________________________________________________________________
A BILL
To amend the Employee Retirement Income Security Act of 1974 to include
a voluntary option for qualified flexible workplace arrangements.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workflex in the 21st Century Act''.
SEC. 2. QUALIFIED FLEXIBLE WORKPLACE ARRANGEMENT PLAN TREATED AS
WELFARE PLAN.
Section 3(1) of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1002(1)) is amended--
(1) by striking ``or (B)'' and inserting ``(B)''; and
(2) by inserting before the period at the end the
following: ``, or (C) any qualified flexible workplace
arrangement plan described in part 8 of subtitle B''.
SEC. 3. RELATIONSHIP TO OTHER LAWS.
Section 514 of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1144) is amended by adding at the end the following:
``(f)(1) Subsection (a) shall apply with respect to any and all
State laws insofar as they may now or hereafter relate to any qualified
flexible workplace arrangement plan described in part 8, except that in
the case of workflex options offered under such a plan--
``(A) except as provided in subparagraph (B), if only
certain employees are eligible to enroll in a particular
workflex option under the plan, such subsection shall apply
with respect to any and all State laws insofar as they may now
or hereafter relate to the particular workflex option solely
with respect to those employees who are so eligible; and
``(B) in the case of a workflex option consisting of a
biweekly work program or a compressed work schedule program,
such subsection shall apply with respect to any and all State
laws insofar as they may now or hereafter relate to such
workflex option solely with respect to those employees who
enroll in such workflex option.
``(2) For purposes of paragraph (1)(B), a State overtime law shall
be considered to relate to any workflex option consisting of a biweekly
work program or a compressed work schedule program.
``(g) Subsection (d) shall not be construed to permit the
application of any State law otherwise permitted under section 401(b)
of the Family and Medical Leave Act of 1993 (29 U.S.C. 2651(b)) that
would impose requirements relating to a qualified flexible workplace
arrangement plan.''.
SEC. 4. REQUIREMENTS OF QUALIFIED FLEXIBLE WORKPLACE ARRANGEMENT PLAN.
Subtitle B of title I of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1021 et seq.) is amended by adding at the end
the following:
``PART 8--QUALIFIED FLEXIBLE WORKPLACE ARRANGEMENT PLANS
``SEC. 801. DEFINITION OF QUALIFIED FLEXIBLE WORKPLACE ARRANGEMENT
PLAN.
``(a) In General.--A qualified flexible workplace arrangement plan
is a plan that--
``(1) subject to the requirements of this title, an
employer administers in accordance with a written plan
document, in accordance with section 402(a)(1), which shall--
``(A) establish the requirements of the plan (which
shall include requirements with respect to accrual of
compensable leave, request and use of such leave,
withdrawal from or termination of such a plan,
determination of an employee's service, and workflex
options); and
``(B) as appropriate, incorporate the rights of
employees to compensable leave and workflex options
pursuant to one or more collective bargaining
agreements between the employer and the labor
organization that has been certified or recognized as
the representative of the employees under applicable
law; and
``(2) provides--
``(A) compensable leave in accordance with section
802; and
``(B) workflex options in accordance with the
requirements of section 803.
``(b) Relationship to Executive Order 13706.--A qualified flexible
workplace arrangement plan meeting all the requirements of this part
shall be deemed to satisfy the requirements established by Executive
Order 13706.
``(c) Substantial Compliance.--A plan shall not fail to be treated
as a qualified flexible workplace arrangement plan under this title so
long as the plan substantially complies with the requirements of this
part.
``(d) Rule of Construction.--Nothing in this part shall be
construed--
``(1) to relieve an employer that offers a qualified
flexible workplace arrangement plan from the requirements of
this title that are otherwise applicable to an employee welfare
benefit plan, including the reporting and disclosure, fiduciary
responsibility, and enforcement provisions of parts 1, 4, and 5
of this title;
``(2) to require an employer to adopt or maintain a
qualified flexible workplace arrangement plan; or
``(3) in the case of an employer that has not adopted or is
not maintaining such a plan, to require the employer to comply
with any requirement under this part with respect to such a
plan.
``SEC. 802. COMPENSABLE LEAVE REQUIREMENTS.
``(a) Amount of Compensable Leave.--
``(1) In general.--The minimum amount of compensable leave
that shall be provided to an employee for each plan year under
a qualified flexible workplace arrangement plan shall depend
upon the size of the employer and an employee's years of
service with the employer, and shall be not fewer than the
minimum number of days as follows:
------------------------------------------------------------------------
Minimum number of compensable days of
leave per plan year
----------------------------------------
Employees with
5 or more
``Number of employees years of Employees with fewer
employed by an employer service with than 5 years of
the employer service with the
as of the employer as of the
beginning of beginning of the plan
the plan year:
year:
------------------------------------------------------------------------
1000 or more................... 20 days 16 days
------------------------------------------------------------------------
250 to 999..................... 18 days 14 days
------------------------------------------------------------------------
50 to 249...................... 15 days 13 days
------------------------------------------------------------------------
less than 50................... 14 days 12 days.
------------------------------------------------------------------------
``(2) Minimum requirements.--
``(A) In general.--An employer that provides an
unlimited number of compensable leave days per year to
employees under a qualified flexible workplace
arrangement plan shall be deemed to satisfy the amount
of compensable leave required under paragraph (1), and
nothing in this section shall prohibit a qualified
flexible workplace arrangement plan from providing more
than such minimum amount of compensable leave.
``(B) Treatment of holidays.--An employer that
provides paid time off to employees for holidays
recognized under Federal or State law may include up to
6 such paid holidays towards satisfying the amount of
compensable leave required under paragraph (1).
``(3) Accrual permitted.--A qualified flexible workplace
arrangement plan of an employer shall--
``(A) provide all the compensable days of leave
available to an employee for the plan year at the
beginning of the plan year; or
``(B) provide that an employee's compensable leave
for a plan year accrue during the plan year on a
proportional basis in relation to the number of
compensable days provided to such employee, and except
as otherwise provided in subsection (b)(4), is
available to an employee as the compensable leave
accrues.
``(4) Determining number of employees.--
``(A) In general.--The number of employees of an
employer for a plan year shall be determined by
calculating the average monthly number of employees for
the preceding plan year in accordance with subparagraph
(B).
``(B) Calculation.--The average monthly number of
employees for a plan year shall be calculated by adding
the total number of monthly employees for each month of
such preceding plan year and dividing by 12.
``(C) Service requirement.--An individual shall be
considered an employee for a month if such individual
is an employee on at least the first day and last day
of the month.
``(5) Years of service.--The determination of an employee's
years of service shall be made by the employer in a manner
consistent with section 203(b)(2), except that, upon adoption
of a qualified flexible workplace arrangement plan, all
employees' prior years of service with the employer maintaining
the plan shall be taken into account when calculating the
employee's years of service for the purpose of this subsection.
``(6) Carryover.--An employer may permit employees to carry
over unused compensable leave from one plan year to the
subsequent plan year.
``(7) Cashout.--An employer may permit employees to cash
out unused compensable leave after or in connection with the
termination of employment.
``(b) Full-Time, Part-Time, and New Employees, and Pro-Rated
Calculations.--
``(1) Full-time employees.--
``(A) In general.--For any plan year, the
requirements described in subsection (a)(1) shall only
apply to employees who are full-time employees.
``(B) Definition.--The employer, in its qualified
flexible workplace arrangement plan, shall reasonably
define `full-time', when used with respect to an
employee, for purposes of such plan.
``(2) Part-time employees.--
``(A) In general.--For any plan year, if an
employee was employed by the employer in the preceding
plan year, but was not a full-time employee in the
preceding plan year, and is not a full-time employee of
the employer in the current plan year, subsection
(a)(1) shall apply, in a pro-rated manner to such
employee by multiplying--
``(i) the number of days of compensable
leave required under such subsection, by
``(ii) the part-time employee factor
described in subparagraph (B).
``(B) Part-time employee factor.--For purposes of
this paragraph, the part-time factor shall be equal to
the result obtained by dividing--
``(i) the number of hours of service that
the employer reasonably estimates the employee
had in the preceding plan year, by
``(ii) the number of hours that the
employer reasonably determines the employee
would have had if such employee had been a
full-time employee.
``(C) Hours of service determination.--For purposes
of this subsection, the determination of an employee's
hours of service shall be made in a manner consistent
with section 202(a)(3)(C), except that an estimation of
such hours is permitted.
``(3) New part-time employees.--
``(A) In general.--For any plan year, if a part-
time employee was employed as a full-time employee by
the employer in the preceding plan year or was not
employed by the employer in the preceding plan year,
then subsection (a)(1) shall apply, in a pro-rated
manner to such employee by multiplying--
``(i) the number of days of compensable
leave required under such subsection, by
``(ii) the new part-time employee factor
described in subparagraph (B).
``(B) New part-time employee factor.--For purposes
of this paragraph, the new part-time employee factor
shall be equal to the result obtained by dividing--
``(i) the hours of service that the
employer reasonably estimates that the employee
will have during the current plan year, by
``(ii) the hours of service that the
employer reasonably estimates that a full-time
employee would have during such plan year.
``(4) Restrictions regarding new employees permitted.--In
the case of a new employee, the employer may restrict the
employee's right to use compensable leave during the first 90
days of employment with the employer.
``(c) Use of Compensable Leave.--In a qualified flexible workplace
arrangement plan the employer may--
``(1) determine whether the use of compensable leave at the
time requested by an employee would unduly disrupt the
operations of the employer; and
``(2) determine whether an employee may use compensable
leave in full-day or partial-day increments.
``SEC. 803. WORKFLEX OPTIONS.
``(a) Workflex Options.--
``(1) In general.--Under a qualified flexible workplace
arrangement plan, an employer shall offer each employee meeting
the requirements of paragraph (2) at least one of the following
workflex options:
``(A) A biweekly work program that meets the
requirements of section 804.
``(B) A compressed work schedule program that meets
the requirements of section 805.
``(C) A telework program.
``(D) A job sharing program.
``(E) Flexible scheduling.
``(F) Predictable scheduling.
``(2) Service requirement.--
``(A) In general.--For purposes of this section, an
employee is eligible to participate in a workflex
option if such employee--
``(i) has been employed for at least 12
months by the employer and for at least 1,000
hours of service with such employer during such
12-month period, determined by the employer to
mean--
``(I) the calendar year; or
``(II) any fixed 12-month plan
year; or
``(ii) meets eligibility requirements of
the plan that otherwise permit participation
prior to the date described in clause (i).
``(B) Hours of service.--For the purposes of this
paragraph, the determination of an employee's hours of
service shall be made in a manner consistent with
section 202(a)(3)(C), except that the number of such
hours may be estimated by the employer.
``(3) Employment positions.--A qualified flexible workplace
arrangement plan may specify which employment position or
positions are offered participation in a particular workflex
option described in paragraph (1).
``(4) Clarification.--A qualified flexible workplace
arrangement plan shall not be required to offer an employee
more than one workflex option without regard to whether another
employee is offered more than one workflex option.
``(b) Conditions.--A qualified flexible workplace arrangement plan
shall offer a workflex option under subsection (a) to employees
pursuant to the following:
``(1) Voluntary participation.--
``(A) In general.--Except as provided in
subparagraph (B)(i), an employee's participation in any
workflex option offered under a qualified flexible
workplace arrangement plan shall be voluntary and the
acceptance of a workflex option may not be a condition
of employment.
``(B) Agreement or understanding.--A workflex
option shall be carried out pursuant to--
``(i) applicable provisions of one or more
agreements described in section 801(a)(1)(B);
or
``(ii) in the case of an employee who is
not subject to an agreement referred to in
clause (i), a written agreement--
``(I) setting forth the employee's
work schedule;
``(II) including a description of
the workflex option in which the
employee is participating;
``(III) executed before the
employee begins to participate in such
workflex option; and
``(IV) entered into knowingly and
voluntarily by such employee.
``(2) Termination, modification, or withdrawal.--
``(A) Termination or modification.--Subject to
section 803(a)(1), an employer may amend a qualified
flexible workplace arrangement to eliminate--
``(i) any workflex option described in
subsection (a)(1); or
``(ii) the eligibility of an employee or
group of employees to participate in a workflex
option after the employer has provided 30-day
written notice.
``(B) Withdrawal.--An employee may withdraw from a
workflex option offered under a qualified flexible
workplace arrangement plan at any time, except as
otherwise specified for a biweekly work program under
section 804(e)(2) or a compressed work schedule program
under section 805(d)(2).
``(3) Recordkeeping requirement.--The employer shall
maintain--
``(A) written descriptions of workflex option
offerings made available to employees; and
``(B) written agreements described in paragraph
(1)(B)(ii).
``SEC. 804. BIWEEKLY WORK PROGRAM.
``(a) In General.--Notwithstanding any other provision of law, as
part of a qualified flexible workplace arrangement plan, an employer
may establish a biweekly work program as a workflex option for eligible
employees that allows the use of a biweekly work schedule--
``(1) that consists of a basic work requirement of not more
than 80 hours, over one 2-week period; and
``(2) in which more than 40 hours but not more than 60
hours of the work requirement may occur in a week of the 2-week
period.
``(b) Conditions.--A biweekly work program shall meet the
conditions described in section 803(b).
``(c) Eligible Employee.--For purposes of this section, an
`eligible employee' means an employee who is subject to the minimum
wage and overtime requirements of sections 6 and 7 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206; 207).
``(d) Compensation for Hours in Schedule.--In the case of an
eligible employee participating in a biweekly work program--
``(1) the eligible employee shall be compensated for each
hour in such biweekly work schedule at a rate not less than the
regular rate at which the eligible employee is employed;
``(2) any hour worked in excess of such a biweekly work
schedule for a week of the 2-week period, or in excess of 80
hours in the 2-week period, shall be overtime hours; and
``(3) the eligible employee shall be compensated for each
such overtime hour at a rate not less than one and one-half
times the regular rate at which the eligible employee is
employed, in accordance with section 7(a)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 207(a)(1)).
``(e) Discontinuance of Program or Withdrawal.--
``(1) Discontinuance of program.--An employer who has
established a biweekly work program under subsection (a) may
discontinue the program, after providing 30 days written notice
to the eligible employees who are subject to the employer's
agreement or understanding described in section 803(b)(1)(B).
``(2) Withdrawal.--
``(A) In general.--An eligible employee may
withdraw from an agreement or understanding described
in section 803(b)(1)(B), with respect to a biweekly
work program established under subsection (a), by
submitting a written notice of withdrawal to the
employer.
``(B) Effective date.--Not later than 30 calendar
days after receiving an eligible employee's written
notice of withdrawal, an employer shall restore the
employee to one of the employer's regular schedules.
``SEC. 805. COMPRESSED WORK SCHEDULE PROGRAM.
``(a) In General.--Notwithstanding any other provision of law, as
part of a qualified flexible workplace arrangement plan, an employer
may establish a compressed work schedule program as a workflex option
for employees that allows the employee to work the equivalent of full-
time employment by increasing the number of daily hours worked, such as
a four-day workweek.
``(b) Conditions.--A compressed work schedule program shall meet
the conditions described in section 803(b).
``(c) Compensation for Hours in Compressed Work Schedule.--In the
case of an employee who is participating in a compressed work schedule
program and who is subject to the minimum wage and overtime
requirements of sections 6 and 7 of the Fair Labor Standards Act of
1938 (29 U.S.C. 206; 207)--
``(1) the employee shall be compensated for each hour in
such 40-hour compressed work schedule at a rate not less than
the regular rate at which the employee is employed; and
``(2) the employee shall be compensated for each overtime
hour at a rate not less than one and one-half times the regular
rate at which the employee is employed, in accordance with
section 7(a)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 207(a)(1)).
``(d) Discontinuance of Program or Withdrawal.--
``(1) Discontinuance of program.--An employer who has
established a compressed work schedule program under subsection
(a) may discontinue the program after providing 30 days written
notice to the employees who are subject to an agreement or
understanding described in section 803(b)(1)(B).
``(2) Withdrawal.--
``(A) In general.--An employee may withdraw from an
agreement or understanding described in section
803(b)(1)(B), with respect to a compressed work
schedule program established under subsection (a), by
submitting a written notice of withdrawal to the
employer.
``(B) Effective date.--Not later than 30 calendar
days after receiving a written notice of withdrawal, an
employer shall restore the employee to one of the
employer's regular schedules.
``SEC. 806. RELATIONSHIP TO FAMILY AND MEDICAL LEAVE ACT.
``Consistent with section 102(d)(2)(A) of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2612(d)(2)(A)), an employee may elect, or
an employer may require the employee, to substitute compensable leave
for leave provided under subparagraph (A), (B), (C), or (E) of section
102(a)(1) of the Family and Medical Leave Act (29 U.S.C. 2612(a)(1))
for any part of the 12-week period of such leave under such section.
``SEC. 807. REINSTATEMENT RIGHTS.
``(a) In General.--Except as provided in subsections (b) and (c),
an employee who uses compensable leave under a qualified flexible
workplace arrangement plan shall be entitled--
``(1) to be restored to the position of employment held by
the employee when the leave commenced; or
``(2) to be restored to an employment position equivalent
to the employment position described in paragraph (1), with
equivalent employment benefits, pay, and other terms and
conditions of employment.
``(b) Limitations.--An employee shall be entitled to such
reinstatement after using compensable leave even if the employee has
been replaced or the employee's employment position has been
restructured to accommodate the employee's absence, except that the
reinstatement rights shall not apply--
``(1) to an employee who uses more than 12 workweeks of
compensable leave during a 12-month period; or
``(2) to an affected employee, as defined under section
104(b)(2) of the Family and Medical Leave Act (29 U.S.C.
2614(b)(2)).
``(c) Reinstatement of Leave.--In the case of an employee who is
rehired following termination of employment, any compensable leave that
has not been used prior to such termination may be reinstated by the
employer.
``SEC. 808. RELATIONSHIP TO AMERICANS WITH DISABILITIES ACT AND THE
REHABILITATION ACT OF 1973.
``Nothing in this part shall be construed to modify or relieve an
employer from any obligation imposed by the Americans with Disabilities
Act (42 U.S.C. 12111 et seq.) and the Rehabilitation Act of 1973 (29
U.S.C. 791 et seq.).
``SEC. 809. EDUCATION AND TECHNICAL ASSISTANCE; LIMITATION ON RULES.
``(a) Education and Technical Assistance.--The Secretary shall
provide education and technical assistance to employers and employees
with regard to qualified flexible workplace arrangement plans, and
shall maintain an electronic database available online consisting of
examples of workflex options.
``(b) Limitation on Rules.--
``(1) In general.--No regulation or other guidance issued
by the Secretary to carry out this part may result in new
restrictions with respect to the establishment or
administration of a qualified flexible workplace arrangement
plan under section 801.
``(2) Invalidation.--Any rule or regulation issued in
contravention of paragraph (1) shall have no force or effect.
``SEC. 810. DEFINITIONS AND OTHER SPECIAL RULES.
``For purposes of this part:
``(1) Compensable leave.--The term `compensable leave'
means paid leave to be used for--
``(A) paid time off, sick leave, personal leave, or
vacation, the use of which is subject to the terms of a
qualified flexible work arrangement plan; and
``(B) paid holidays provided in accordance with
section 802(a)(2)(B).
``(2) Workflex option.--The term `workflex option' means
any of the programs described in section 803(a)(1).
``(3) Employer.--For purposes of determining whether an
employer is maintaining a qualified flexible workplace
arrangement plan, sections 210(c) and 210(d) shall apply.
``(4) Job sharing program.--The term `job sharing program'
means an arrangement under which an employer approves the
sharing of one employment position amongst two or more
employees.
``(5) Plan year.--The term `plan year' means any 365-day
period designated in a qualified flexible workplace arrangement
plan.
``(6) Flexible scheduling.--The term `flexible scheduling'
means an arrangement under which an employee's regular work
schedule is altered.
``(7) Predictable scheduling.--The term `predictable
scheduling' means an arrangement under which an employer
provides a work schedule to an employee--
``(A) with reasonable advanced notice; and
``(B) that is subject to as few alterations as are
reasonably possible.
``(8) Telework program.--The term `telework program' means
an arrangement under which an employee performs the duties and
responsibilities of such employee's employment position, and
other activities authorized by the employer, from a worksite
approved by the employer other than the location from which the
employee would otherwise work.''.
<all>