An end to the leave law patchwork? Bill would let employers opt out of state laws
- A bill introduced in the House Nov. 2 would allow employers to opt out of complying with state and local leave laws, in favor of offering a single paid leave benefit and a flexible work option to their employees, according to one of its sponsors.
- This new program would base paid-time-off (PTO) requirements on the size of an employers' workforce, employees' tenure and their hours worked. (See chart below.) The leave would have to be available to all employees— albeit on a reduced basis for part-time workers — after their first 90 days, according to the Society for Human Resource Management (SHRM), which helped design the program. Employees could accrue leave over the course of a plan year or employers could offer the full amount at the start of the plan year, according to the organization.
- The flexible work option could include a compressed work schedule, a biweekly work program, a telecommuting program, a job-sharing program, flexible scheduling or a predictable schedule. The option would only need to be available to those who had worked for the employer for at least year and had worked at least 1,000 in the past 12 months.
Employers have been decrying an influx of state and local laws, especially those requiring paid sick leave. "To date, seven states and more than 30 jurisdictions have adopted paid sick leave laws, and this legislative activity is only expected to increase in coming years," SHRM said in announcing the bill.
Most federal laws do not preempt state and local laws, leaving employers operating in multiple jurisdictions to decide between juggling various requirements or applying the most generous law across their workforces. This bill, however, would be able to preempt those laws because it's an Employee Retirement Income Security Act (ERISA) amendment. That law, which governs health and retirement plans, already has a preemption mechanism built in. This amendment adds a "workflex" plan to ERISA, SHRM's director of congressional affairs, Lisa Horn, told HR Dive.
According to Horn, adopting the program would satisfy not only all state and local paid leave laws but also an executive order requiring that federal contractors provide paid sick leave. Unlimited vacation policies that are increasing in popularity would satisfy the first half of the new program, Horn said. And the program wouldn't affect workers Family and Medical Leave Act (FMLA) rights; like other employer-provided PTO, employers could require that workers use available time concurrently with FMLA leave.
The bill was introduced with Republican sponsors, but Horn said she's optimistic that it will eventually garner bipartisan support. She said she also thinks it has the potential to be widely adopted by employers, too: "I think that the incentive to participate is strong enough that many would," she said.
If signed into law, the option would be available immediately.
PTO Required by the Workflex in the 21st Century Act
|Number of employees||
Employees with 5+ years of service
Employees with fewer than 5 years of service
|1,000 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|
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