How a Proposed Law Could Change the Paid Leave Landscape

In November, several Republican representatives introduced the Workflex in the 21st Century Act. The workflex bill would amend the Employee Retirement Income Security Act (ERISA) to allow employers to voluntarily participate in offering flexible and predictable working options for their workers.

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If employers decide to adopt a workflex plan, they would be required to provide paid leave and at least one of six voluntary workflex options to all employees. The options include telework, job sharing, compressed work schedules, biweekly work programs, flexible scheduling and predictable scheduling.

Although paid leave and flexible work arrangements are addressed together in the bill, employees are not required to adopt a flexible work schedule in order to receive paid leave—all employees would receive paid leave even if they don't adopt a flexible work schedule.

Additionally, because the plans would be offered under ERISA, employers would be subject to documentation and reporting requirements under the law.

To be eligible for a workflex arrangement, workers are required to be employed with their employers for at least 12 months, and they must have worked at least 1,000 hours during the previous 12 months.

Paid Leave Accruals and Benefits

Under the proposal, employees would accrue paid leave over the course of a plan year, or employers could offer employees a lump-sum amount of leave at the start of the plan year.

New employees would have restrictions on the use of leave in the first 90 days of employment, while part-time workers would receive a proportional amount of paid leave based on the number of hours they work.

The amount of leave offered would depend on the size of the business and an employee's tenure with the employer. The proposed legislation provides for the following leave amounts:

  • Employers with fewer than 50 workers: 14 days of leave for employees with more than five years of service and 12 days for employees with fewer than five years of service.

  • Employers with 50 to 259 workers: 15 days of leave for employees with more than five years of service and 13 days for employees with fewer than five years of service.

  • Employers with 250 to 999 workers: 18 days of leave for employees with more than five years of service and 14 days for employees with fewer than five years of service.

  • Employers with 1,000 or more workers: 20 days for employees with more than five years of service and 16 days for employees with fewer than five years of service.

Impact on Existing State and Local Laws

Currently, eight states and over 30 jurisdictions have enacted their own paid sick leave laws. However, this legislation would provide employers who choose to offer a flexible work program exemption from state and local paid leave requirements.

Opponents of the legislation say it will "circumvent state and local laws designed to protect working people," while advocates say it will “finally provide a federal standard on paid leave in the United States."

The representatives who introduced the legislation, which was spearheaded by Rep. Mimi Waters (R-Calif.), say the combination of paid leave and flexible work arrangements will provide both full- and part-time workers with a better work-life balance.

The bill does not impact laws on unpaid leave, nor does it impact coverage requirements under the federal Family and Medical Leave Act and similar state laws.

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