Benefits, HR Policies & Procedures

What is the Workflex in the 21st Century Act?

The Society for Human Resource Management (SHRM) worked with input from HR professionals and with Congress to help create the Workflex in the 21st Century Act, which was introduced in the House of Representatives in early November 2017.


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The bill, also currently known as H.R. 4219, addresses the joint concerns of flexible working arrangements and paid time off (PTO) for employees. No other current federal legislation addresses both of these concerns.

What is being proposed is an update to the Employee Retirement Income Security Act (ERISA). Under this new update, employers would be able to voluntarily implement a “workflex” plan, in which they implement at least one flexible work option, along with at least the minimum number of days of PTO for their employees.

Implementing such a plan would be voluntary. An employer would opt in by offering a workplace time off and workflex plan that is in compliance with all of the previous and updated ERISA regulations. Such plans would be applicable to both full-time and part-time employees for any employer who opts in.

Under the current version of the bill, the amount of PTO required for those who opt in depends both on the number of employees at the organization and on how long any individual employee has been with the company. The initial proposal outlines the following paid leave minimums:

  • If the employer has fewer than 50 employees, the employees who have been there for fewer than 5 years would receive at least 12 paid days off. The employees who have been there 5 years or more would receive at least 14 paid days off.
  • For employers with 50 to 249 employees, the figures are 13 days and 15 days, respectively.
  • For employers with 250 to 999 employees, it’s 14 days and 18 days.
  • For employers with 1,000+ employees, it’s 16 days and 20 days.

These minimums could be given to employees on an accrual basis, or as a lump sum. The proposal outlines that these PTO days could be taken concurrently when an employee is on Family and Medical Leave Act (FMLA) leave, which would allow the employee to be paid during some of their (now-unpaid) FMLA time.

For any employer that creates such a plan, it will also have to have a workplace flexibility component. The current version of the Workflex in the 21st Century Act outlines these options[i]:

  • Compressed work schedule
  • Biweekly work program
  • Telecommuting
  • Job sharing
  • Flexible scheduling
  • Predictable scheduling

It does note that employers can have employee eligibility requirements before they will be able to take advantage of whichever flexibility option(s) are on offer. Much like the FMLA, an employee would have to have already been with the company for at least 12 months and worked at least 1,000 hours in the last 12 months. (This is not identical to the FMLA requirements but quite similar).

If implemented, this bill proposes to simplify minimum PTO rules and administration for employers working in multiple states. It does this by specifically exempting employers from having to adhere to state and local PTO rules as long as they’re meeting these new federal rules (this exemption is already part of ERISA).

It’s very important to note that this bill has just been introduced in the House of Representatives at the beginning of November 2017. It is only in the earliest stages and has been referred to the House Committee on Education and the Workforce. There are a lot of steps that must happen before this could become law, and if it does, it may undergo many changes along the way. Keep an eye out for updates as the bill works through the legislative process, and remember that even its name may change during this process.