Marc Freedman Marc Freedman
Vice President, Employment Policy, U.S. Chamber of Commerce


July 16, 2018


There’s a new entry in the paid leave debate, and it supports a trend already occurring in the modern workplace: Employers are increasingly embracing workplace flexibility by offering more options for their employees regarding when, where, and how work is done. This approach is one that both workers and employers can embrace.

The Workflex in the 21st Century Act (H.R. 4219) is an innovative, national approach to increasing the availability of paid leave and flexible work options for families that also helps employers navigate a patchwork of conflicting regulations.

The Workflex bill, introduced by Rep. Mimi Walters (R-CA), stands apart from previous national proposals by relying on an incentive mechanism, instead of a mandate, along with scaled amounts of leave to facilitate the expansion of paid leave and flexible work options that suit a broad array of workplaces.

If an employer chooses to adopt the provisions of the bill, the same nationally structured paid leave benefit program would apply to all of its workers, thus ensuring that employers are not subject to an increasing patchwork of state and local leave mandates. The difficulty of these mandates is less the amount of specified leave than the administrative details each one imposes that are rarely in sync.

Different state and local leave mandates mean that employers must maintain separate paid leave programs for each jurisdiction in which they operate. This greatly expands administrative costs, adds layers of complexity for employees who move between jurisdictions, and exposes employers to increased liability for unintentional non-compliance.

The amount of leave guaranteed in the bill meets or exceeds almost anything required by any current state or local mandate. Another benefit for employees of a participating employer is that all of them would be offered some form of flexible work options (such as teleworking, compressed schedules, and predictable schedules). These are options that many employees do not currently enjoy and are the most sought-after work benefits in today’s labor market.

Perhaps because it is an entirely new concept, there may be some confusion about how the bill works and what it provides.

The Workflex bill does not in any way interfere with current leave benefits under the Family and Medical Leave Act (FMLA), or with any of the state and local mandates. All those leave laws remain intact and in effect. In jurisdictions with a paid leave mandate, employees will acquire their leave benefits under those laws, or by virtue of their employer opting into the provisions of the Workflex in the 21st Century Act. Either way, these employees will be getting paid leave, or – in many cases – more leave under the Workflex bill’s provisions.

Because the paid leave benefit is administered nationally, employees in jurisdictions without a leave mandate will have the same leave benefits as those in mandate jurisdictions. Furthermore, because the Workflex bill amends the Employee Retirement Income Security Act (ERISA), employers are subject to the penalties under ERISA if they do not comply.

Another important feature of the bill is that the leave benefits are not triggered by any specific event. Under state and local leave mandates, leave can only be taken for certain qualifying reasons, but the leave benefits in the Workflex bill are based on the “paid time off” concept – subject only to the same question of unduly disrupting operations that is in the FMLA and many current workplaces. Not only does this give employees greater flexibility in using their leave benefits, but it also provides them more privacy in requesting leave as they do not have to specify a reason that they may wish to keep confidential.

This means that the leave benefits can be accessed for all manner of illnesses in the family, children’s school or doctor appointments, domestic violence or abuse situations, mental health needs, or any use that the employee may desire.

In short, this bill is a fresh, creative proposal that will increase the availability of paid leave and flexible work options for American families, while also giving employers relief from a growing matrix of conflicting workplace mandates at the state and local levels.

About the authors

Marc Freedman

Marc Freedman

Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce. He develops and advocates the Chamber’s response to OSHA matters; FLSA issues such as overtime, minimum wage, and independent contractors; paid leave issues; EEOC, and other labor and workplace issues.

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