[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>