Workflex in the 21st Century Act: Q&A

November 2, 2017
Under the Workflex in the 21st Century Act, employers that choose to participate in the program would follow a single federal framework for offering their full- and part-time employees paid leave. Participating employers would also be required to offer all employees a flexible work—or workflex—option, which could include a compressed work schedule, telecommuting program, job-sharing program or other option. Those employers that opt in would be exempt from state and local paid leave and workflex laws.

Q: Why is the bill needed?

A: The Society for Human Resource Management (SHRM) believes that the United States must have a 21st century workflex policy that works for employers and employees alike, helping them meet work-life and organizational needs. At its core, a 21st century workflex policy must facilitate the expansion of paid leave and workflex options regarding when, where and how work is done. And it must account for different work environments and be accessible by employers of all sizes and in all industries. It must reject old ways of thinking that hold the workplace back. This legislation encourages employers to help meet the work-life needs of their employees and benefits employers by providing much-needed certainty and predictability over the current patchwork of state and local laws mandating leave. 

Q: Why do you call this bill an innovative approach to paid leave?

A: This legislation builds on creative solutions that have been developed at organizations to address the 21st century workplace and meet the needs of both employers and employees. Rather than a one-size-fits-all government mandate, a 21st century workflex policy must have at its core a new approach that facilitates the expansion of paid leave and options for when, where and how work is done. Both employees and employers will benefit from this bill. It will result in expanded paid leave for full- and part-time workers, new flexible work opportunities for millions of employees, and increased predictability for employers—all without passing costs on to employees or taxpayers. 

Q: Why doesn’t the legislation require employers to provide paid leave and flexible work? 

A: The bill doesn’t require paid leave and workflex because Congress rightfully recognized that mandates don’t work. Moreover, mandates also limit employers’ flexibility in controlling their leave and attendance policies. Thus, mandates could actually curtail paid leave and workflex options. 

This bill encourages employers to opt in, which we believe is the smarter approach because what works for one employer might not work for another. When employers are given federal mandates, they tend to restructure and scale back existing leave benefits because coverage deemed as too generous—that which goes above and beyond the minimum requirements—can result in the “stacking” of the paid leave (paid leave on top of unpaid Family and Medical Leave Act, or FMLA, leave). 

Q: How much paid leave would an employer need to offer under this bill?

A: The amount of paid leave an employer must offer to participate in this plan would depend on the size of the employer and tenure of the employee. Reference the chart below for details:

​Number of employees employed by an employer

Minimum number of compensable days of leave per plan year

​Employees with 5 or more years of service with an employer as of the beginning of the plan year: 
​Employees with fewer than 5 years of service with an employer as of the beginning of the plan year: 
​1,000 or more
​20 days
​16 days
​18 days
​14 days
​15 days
​13 days
​Less than 50
​14 days
​12 days

But no matter the size of the employer, the amount of guaranteed leave available to employees under this bill would be more generous than under all state and most local laws. Millions of employees—many for the first time—would also benefit from having a workflex option. 

Q: What implications does this have on FMLA?

A: The legislation does not affect the coverage protections afforded under federal or state FMLA laws. The legislation builds on the Employee Retirement Income Security Act (ERISA), which creates federal standards for employer-sponsored health care and welfare benefit plans and pre-empts state laws related to these covered plans. Building on ERISA will also provide greater compliance uniformity and protections to employers and employees. It particularly benefits multistate employers. 

Q: How is this bill different from other paid leave plans such as the Healthy Families Act and New York Sen. Kirsten Gillibrand’s bill requiring a federal paid leave insurance fund? 

A: This bill is different because it takes a better approach to offering more people more paid time off and more flexible work options. That’s because, unlike other proposals, this bill is not a mandate and does not create a government-run paid family leave insurance program, which would result in more taxes on employers and employees. 

SHRM has strong concerns about the Healthy Families Act, which mandates seven paid sick days per employee per year. If organizations are required to offer paid sick leave, they will likely absorb this added cost by carving out existing leave coverage, cutting back their current paid leave programs, eliminating other employee benefits (i.e., health or retirement benefits), or delaying wage increases. Under a new federal paid leave insurance fund, paid leave becomes a tax on employers and employees. 

The Workflex in the 21st Century Act is a better approach because it incentivizes employers to adopt policies voluntarily instead of through mandates—which is more likely to garner support and expand employee access to workflex options.

Q: How has SHRM been involved in the legislation?

A: More than five years ago, SHRM and its members developed a set of principles to guide a 21st century workplace flexibility public policy. As part of that effort, SHRM offered its expertise to members of Congress who were looking to develop innovative legislation like this bill. This SHRM-supported bill reflects a modern workforce and workplace and builds on innovative workflex practices many HR professionals have already implemented.

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