Federal Workflex Bill Would Preempt State, Local Paid Leave Laws

Author: Robert S. Teachout, XpertHR Legal Editor

November 9, 2017

Employers will be able to comply with a single, national paid leave law instead of multiple state and local paid leave requirements if a new federal proposal becomes law. The Workflex in the 21st Century Act (HR 4219), introduced in the House of Representatives on November 2, would amend the Employee Retirement Income Security Act (ERISA) to include a voluntary option for qualified compensated leave and flexible workplace arrangements.

ERISA has a mechanism that preempts qualified employee welfare benefit plans from state requirements. If enacted, the bill would define any qualified flexible workplace arrangement plan as an ERISA-qualified employee welfare benefit plan, thereby exempting employers that provide such plans from state and local paid leave requirements. However, the preemption would not extend to state and local laws mandating unpaid leave or state temporary disability insurance requirements.

To qualify as an ERISA-covered plan, an employer's plan would have to include two components: a paid leave benefit that meets the federal standard and flexible work arrangements for eligible employees.

Under the proposed bill, the minimum amount of paid leave days per year would be based on the size of the employer and how long an employee has been employed, as follows:

Employer Size Days of Paid Leave Required for Employees With Five or More Years of Service Days of Paid Leave Required for Employees With Fewer Than Five Years of Service
1,000+ employees 20 16
250-999 employees 18 14
50-249 employees 15 13
1-49 employees 14 12

For a plan to be ERISA-qualified, an employer also would have to offer at least one of the following flexible work arrangements to each eligible employee:

  • Compressed work schedule;
  • Biweekly work program (allows non-exempt employees to work 80 hours in two weeks before overtime must be paid. Hours could vary each week);
  • Telecommuting;
  • Job sharing;
  • Flexible scheduling; or
  • Predictable scheduling.

To be eligible to participate in a flexible work arrangement, an employee will have to have been employed by the employer for at least 12 months and worked at least 1,000 hours during the previous 12-month period.