I 

111TH CONGRESS 

1ST SESSION H. R. 1723 

To provide for a paid family and medical leave insurance program, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 25, 2009 

Mr. STARK (for himself, Mr. GEORGE MILLER of California, Ms. WOOLSEY, 

and Mrs. MALONEY) introduced the following bill; which was referred to 

the Committee on Education and Labor, and in addition to the Committees on Oversight and Government Reform and Ways and Means, for a 

period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide for a paid family and medical leave insurance 

program, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Family Leave Insur5 ance Act of 2009’’. 

6 SEC. 2. CONGRESSIONAL FINDINGS. 

7 Congress finds the following: 


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1 (1) Since its passage, the Family and Medical 

2 Leave Act of 1993 (referred to in this section as the 

3 ‘‘FMLA’’) has assisted millions of employees in bal4 ancing the demands of their jobs with their family 

5 responsibilities. However, many eligible employees 

6 are not able to utilize the benefits of the FMLA be7 cause FMLA leave is unpaid. According to a 2000 

8 survey on the FMLA by the Department of Labor, 

9 among those employees who need FMLA leave and 

10 don’t take it, 78 percent don’t take it because they 

11 can’t afford it. 

12 (2) An analysis of national data from the 2000 

13 FMLA survey by the Center for Women and Work 

14 at Rutgers University suggests that employees suffer 

15 severe financial hardship in order to be responsible 

16 family members and provide minor children and 

17 aging parents with the care they need. For example, 

18 among employees who needed to care for a seriously 

19 ill child— 

20 (A) 42 percent took time off even though 

21 they received no pay while doing so; 

22 (B) 46 percent received full or partial pay 

23 during at least part of the time off (including 

24 receiving pay for reasons such as use of vaca25 tion time); and 


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1 (C) 12 percent could not take time off to 

2 care for the child due to lack of pay. 

3 (3) Americans who provide direct care for their 

4 family members prevent the worsening of illnesses 

5 and promote strong recovery. For example, the 

6 length of a child’s stay in the hospital decreases by 

7 31 percent when parents are able to be present. 

8 (4) Forty-three percent of private sector em9 ployees do not have access to paid sick leave, as re10 ported in the Bureau of Labor Statistics National 

11 Compensation Survey in March 2006. Of those em12 ployees who do have paid sick leave, many are not 

13 able to use their own sick leave to receive payment 

14 while caring for family members who are ill. 

15 (5) Family and medical leave benefits strength16 en and support the business sector through health 

17 care savings and increased employee retention and 

18 productivity. 

19 (6) A 2008 Harvard Law study on foreclosure 

20 trends found that 49 percent of all respondents’ 

21 foreclosures were caused, at least in part, by a med22 ical crisis—including loss of work due to illness or 

23 injury, unmanageable medical bills, or caring for an 

24 ill family member. The State of California, where 

25 workers have access to paid family medical leave 


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1 benefits, had a lower rate of foreclosure caused by 

2 caring for a sick household member. 

3 (7) Demographic changes over the past few dec4 ades have altered the face and needs of the work5 force. It is now common for both parents to be in 

6 the workforce and for men and women to also serve 

7 as the primary caregivers for elderly spouses or par8 ents. 

9 (8) According to the Bureau of the Census and 

10 the Bureau of Labor Statistics, 56 percent of women 

11 with children under age 1 are in the labor force, 

12 while 71 percent of all women with dependent chil13 dren under age 18 are in the labor force. 

(9) Nearly 2 14 ⁄3 of Americans under the age of 60 

15 expect to be responsible for the care of an elderly 

16 relative in the next 10 years. 

17 SEC. 3. GENERAL DEFINITIONS. 

18 (a) IN GENERAL.—The definitions provided by sec19 tion 101 of the Family and Medical Leave Act of 1993 

20 (29 U.S.C. 2611), other than the definitions of the terms 

21 ‘‘son or daughter’’, shall apply for purposes of this Act. 

22 (b) ADDITIONAL DEFINITIONS.—In this Act, the fol23 lowing additional definitions shall apply: 


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1 (1) BOARD OF TRUSTEES.—The term ‘‘Board 

2 of Trustees’’ means the Board of Trustees of the In3 surance Fund. 

4 (2) COVERED AGENCY.—The term ‘‘covered 

5 agency’’, when used with respect to a State, means 

6 the State agency referred to in paragraph (1) of sec7 tion 102(b), or the Commissioner of Social Security 

8 if the Commissioner is carrying out the State Family 

9 and Medical Insurance Program in the State under 

10 paragraph (2) of such section. 

11 (3) DOMESTIC PARTNER.—The term ‘‘domestic 

12 partner’’ means— 

13 (A) the person recognized as the domestic 

14 partner of the employee under any domestic 

15 partner registry or civil union laws of the State 

16 or political subdivision of a State where the em17 ployee resides; 

18 (B) a same-sex spouse as determined 

19 under the applicable law of the State or polit20 ical subdivision of a State where the employee 

21 resides; or 

22 (C) in the case of an unmarried employee 

23 who lives in a State where a person cannot 

24 marry a person of the same sex under the laws 

25 of the State, a single, unmarried adult person 


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1 of the same sex as the employee who is in a 

2 committed, intimate relationship with the em3 ployee, is not a domestic partner to any other 

4 person, and who is designated to the employer 

5 by such employee as that employee’s domestic 

6 partner. 

7 (4) INSURANCE FUND.—The term ‘‘Insurance 

8 Fund’’ means the Family and Medical Leave Insur9 ance Fund established under section 301. 

10 (5) MANAGING TRUSTEE.—The term ‘‘Man11 aging Trustee’’ means the Managing Trustee of the 

12 Board of Trustees of the Insurance Fund. 

13 (6) SON OR DAUGHTER.—The term ‘‘son or 

14 daughter’’ means a biological, adopted, or foster 

15 child, a stepchild, a legal ward, a child of a person’s 

16 domestic partner, or a child of a person standing in 

17 loco parentis, who is— 

18 (A) under 18 years of age; or 

19 (B) 18 years of age or older and incapable 

20 of self-care because of a mental or physical dis21 ability. 

22 TITLE I—FAMILY AND MEDICAL 

23 LEAVE INSURANCE PROGRAM 

24 SEC. 101. PROGRAM DEFINITIONS. 

25 In this title: 


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1 (1) ELIGIBLE EMPLOYEE.—The term ‘‘eligible 

2 employee’’ means any of the following: 

3 (A) An employee who— 

4 (i) earned wages with a covered em5 ployer for a minimum of 6 months prior to 

6 filing an application for leave benefits 

7 under this title; and 

8 (ii) has been employed by the em9 ployer with respect to whom paid leave is 

10 requested for at least 625 hours of service 

11 during the previous 6 months. 

12 (B) An employee— 

13 (i) of a small employer that has elect14 ed to participate in the Program under 

15 this title in accordance with such regula16 tions as the Secretary shall prescribe; and 

17 (ii) who meets the requirements of 

18 subparagraph (A), but is not an employee 

19 of the Federal Government. 

20 (C) A self-employed individual who has— 

21 (i) elected to participate in the Pro22 gram under this title in accordance with 

23 such regulations as the Secretary shall pre24 scribe; 


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1 (ii) self-employment income while a 

2 covered employer for 6 of the last 12 

3 months prior to filing an application for 

4 leave benefits under this title; and 

5 (iii) paid premiums under section 

6 1401(c) of the Internal Revenue Code of 

7 1986 with respect to such self-employment 

8 income. 

9 (2) EMPLOYER-RELATED DEFINITIONS.— 

10 (A) COVERED EMPLOYER.—The term 

11 ‘‘covered employer’’ means a person— 

12 (i) that is— 

13 (I) an employer; 

14 (II) a small employer that has 

15 elected to participate in the Program 

16 under this title in accordance with 

17 such regulations as the Secretary shall 

18 prescribe; or 

19 (III) a self-employed individual 

20 who has elected to so participate; and 

21 (ii) that is not a voluntary plan em22 ployer. 

23 (B) EMPLOYER.—The term ‘‘employer’’ 

24 shall have the meaning given that term in sec25 tion 101(4) of the Family and Medical Leave 


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1 Act of 1993 (29 U.S.C. 2611(4)), except that 

2 such term shall include any person who employs 

3 2 or more employees for each working day dur4 ing each of 20 or more calendar workweeks in 

5 the current or preceding calendar year. 

6 (C) SMALL EMPLOYER.—The term ‘‘small 

7 employer’’— 

8 (i) means any person engaged in com9 merce or in any industry or activity affect10 ing commerce who employs not less than 2 

11 and not more than 19 employees for each 

12 working day during each of 20 or more 

13 calendar workweeks in the current or pre14 ceding calendar year; and 

15 (ii) includes— 

16 (I) any person who acts, directly 

17 or indirectly, in the interest of an em18 ployer described in clause (i) to any of 

19 the employees of such employer; 

20 (II) any successor in interest of 

21 an employer described in clause (i); 

22 and 

23 (III) any public agency, as de24 fined in section 3(x) of the Fair Labor 

25 Standards Act of 1938 (29 U.S.C. 


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1 203(x)) that is an employer described 

2 in clause (i) but is not an entity of the 

3 Federal Government. 

4 (D) VOLUNTARY PLAN EMPLOYER.—The 

5 term ‘‘voluntary plan employer’’ means an em6 ployer for which the Secretary has approved a 

7 voluntary plan under section 104 for the period 

8 involved. 

9 (3) LEAVE BENEFIT.—The term ‘‘leave benefit’’ 

10 means a family and medical leave insurance benefit 

11 described in section 103. 

12 (4) VOLUNTARY PAID BENEFIT.—The term 

13 ‘‘voluntary paid benefit’’ means a family and medical 

14 leave insurance benefit provided under a voluntary 

15 plan approved under section 104 for the period in16 volved. 

17 SEC. 102. ESTABLISHMENT OF PROGRAM. 

18 (a) FEDERAL PROGRAM.—The Secretary of Labor 

19 shall establish a Family and Medical Insurance Program. 

20 (b) STATE PROGRAMS.—In carrying out the Federal 

21 Program established under subsection (a), the Secretary 

22 may— 

23 (1) enter into a contract with a State under 

24 which— 


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1 (A) the State agrees to establish, or ex2 pand a State program in effect at the date of 

3 the enactment of this Act to include, a State 

4 Family and Medical Insurance Program that 

5 provides the benefits described in this title; and 

6 (B) the Secretary agrees to instruct the 

7 Managing Trustee of the Family and Medical 

8 Leave Insurance Fund, established under sec9 tion 301, to provide the State funds for such 

10 benefits from the Insurance Fund; or 

11 (2) at the request of the Governor of a State, 

12 enter into an interagency agreement with the Com13 missioner of Social Security under which— 

14 (A) the Commissioner of Social Security 

15 agrees to establish a State Family and Medical 

16 Insurance Program in such State to provide the 

17 benefits described in this title in such State; 

18 and 

19 (B) the Secretary agrees to instruct the 

20 Managing Trustee of the Insurance Fund to 

21 provide the Commissioner of Social Security 

22 funds for such benefits from the Insurance 

23 Fund. 

24 (c) STATE APPLICATION.—To be eligible to receive 

25 a contract under subsection (b)(1), a State shall submit 


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1 an application to the Secretary at such time, in such man2 ner, and containing such information as the Secretary may 

3 require. At a minimum, the application shall include infor4 mation identifying the State agency to carry out the State 

5 Family and Medical Insurance Program under subsection 

6 (b)(1). 

7 SEC. 103. PROGRAM BENEFITS. 

8 (a) ENTITLEMENT.—Subject to subsections (b), (d), 

9 and (e), an eligible employee of a covered employer shall 

10 be entitled to a family and medical leave insurance benefit 

11 for a total of 12 workweeks of leave during any 12-month 

12 period for 1 or more of the following reasons: 

13 (1) Because of the birth of a son or daughter 

14 of the employee and in order to care for such son 

15 or daughter. 

16 (2) Because of the placement of a son or 

17 daughter with the employee for adoption or foster 

18 care. 

19 (3) In order to care for a child, parent, spouse, 

20 domestic partner, grandchild, grandparent, or sibling 

21 of the employee and who has a serious health condi22 tion. 

23 (4) Because of a serious health condition that 

24 makes the employee unable to perform the functions 

25 of the position of such employee. 


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1 (5) Because of any qualifying exigency (as the 

2 Secretary of Labor shall, by regulation, determine) 

3 arising out of the fact that the spouse, or a son, 

4 daughter, or parent of the employee is on active 

5 duty (or has been notified of an impending call or 

6 order to active duty) in the Armed Forces of the 

7 United States in support of a contingency operation. 

8 (6) In order to care for a child, parent, spouse, 

9 domestic partner, grandchild, grandparent, sibling, 

10 or next of kin of the employee who is a covered serv11 icemember as such term is defined in section 

12 101(16) of the Family and Medical Leave Act of 

13 1993 (29 U.S.C. 2611(16)). 

14 (b) WAITING PERIOD.—During each 12-month pe15 riod described in subsection (a), each eligible employee 

16 shall be subject to a waiting period of 5 workdays of leave 

17 described in subsection (a) (but not more than 7 calendar 

18 days), during which a leave benefit shall not be paid to 

19 the employee. The waiting period shall not reduce the 12 

20 workweeks of leave benefits available under subsection (a). 

21 (c) BENEFIT AMOUNT.— 

22 (1) IN GENERAL.—Subject to paragraph (2), an 

23 eligible employee’s leave benefit for any workday on 

24 which the employee takes leave as described in sub25 section (a) shall be calculated as— 


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1 (A) in the case of an employee with an an2 nual income of not more than $20,000, an 

3 amount equal to 100 percent of that employee’s 

4 daily earnings; 

5 (B) in the case of an employee with an an6 nual income of more than $20,000 and not 

7 more than $30,000, an amount equal to the 

8 greater of— 

9 (i) 75 percent of that employee’s daily 

10 earnings; or 

11 (ii) 100 percent of the daily earnings 

12 of an employee with an annual income of 

13 $20,000; 

14 (C) in the case of an employee with an an15 nual income of more than $30,000 and not 

16 more than $60,000, an amount equal to the 

17 greater of— 

18 (i) 55 percent of that employee’s daily 

19 earnings; or 

20 (ii) 75 percent of the daily earnings of 

21 an employee with an annual income of 

22 $30,000; 

23 (D) in the case of an employee with an an24 nual income of more than $60,000 and not 


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1 more than $97,000, an amount equal to the 

2 greater of— 

3 (i) 40 percent of that employee’s daily 

4 earnings; or 

5 (ii) 55 percent of the daily earnings of 

6 an employee with an annual income of 

7 $60,000; and 

8 (E) in the case of an employee with an an9 nual income of more than $97,000, an amount 

10 equal to 40 percent of the daily earnings of an 

11 employee with an annual income of $97,000. 

12 (2) INDEXING OF ANNUAL INCOME CAT13 EGORIES.— 

14 (A) IN GENERAL.—The Secretary shall 

15 index the annual income amounts specified in 

16 paragraph (1) for each calendar year, using the 

17 national average wage index, as determined 

18 under section 209(k) of the Social Security Act 

19 (42 U.S.C. 409(k)). 

20 (B) PUBLICATION.—Not later than the 

21 November 1 preceding each calendar year, the 

22 Secretary shall publish in the Federal Register 

23 the indexed amount determined under subpara24 graph (A) for that calendar year. 

25 (d) APPLICATION.— 


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1 (1) IN GENERAL.—To be eligible to receive a 

2 family and medical insurance benefit under this title 

3 in a State, an eligible employee shall submit an ap4 plication to the covered agency for the State at such 

5 time, in such manner, and containing the informa6 tion specified in paragraph (3) and such additional 

7 information as the agency may require. 

8 (2) IRREVOCABILITY FOR SELF-EMPLOYED IN9 DIVIDUALS.—An election by a self-employed indi10 vidual to participate in the Program shall be irrev11 ocable. 

12 (3) CERTIFICATION REQUIREMENTS.—The cov13 ered agency shall require each of the following, as 

14 part of the application for benefits under this section 

15 in connection with any leave: 

16 (A) A certification, submitted in a timely 

17 manner, issued by the health care provider of 

18 the eligible employee or of the child, spouse, 

19 parent, domestic partner, grandchild, grand20 parent or sibling of the employee, as appro21 priate, and similar to the certification described 

22 section 103(b) of the Family and Medical Leave 

23 Act of 1993 (29 U.S.C. 2613(b)) in connection 

24 with such leave. 


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1 (B) In any case in which the covered agen2 cy has reason to doubt the validity of the cer3 tification provided under subparagraph (A), the 

4 Secretary may require, at the expense of the 

5 covered agency, that the eligible employee ob6 tain the opinion of a second health care pro7 vider designated or approved by the agency con8 cerning any information certified under sub9 paragraph (A). 

10 (C) In any case in which the second opin11 ion described in subparagraph (B) differs from 

12 the opinion in the original certification provided 

13 under subparagraph (A), the covered agency 

14 may require, at the expense of the agency, that 

15 the employee obtain the opinion of a third 

16 health care provider designated or approved 

17 jointly by the agency and the employee con18 cerning the information certified under sub19 paragraph (A). The opinion of the third health 

20 care provider concerning such information shall 

21 be considered to be final and shall be binding 

22 on the agency and the employee. 

23 (e) PAYMENT OF BENEFITS.— 

24 (1) PAYMENT FROM INSURANCE FUND.—Pay25 ments of benefits required to be made under this 


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1 section shall be made only from the Insurance Fund 

2 established under section 301. 

3 (2) CERTIFICATION AND PAYMENT.—On the 

4 final decision of a covered agency or on the final 

5 judgment of any court of competent jurisdiction pur6 suant to paragraph (3) that any person is entitled 

7 to any payment under this section— 

8 (A) the covered agency shall certify to the 

9 Managing Trustee of the Board of Trustees of 

10 the Insurance Fund the name and address of 

11 the person entitled to receive such payment, the 

12 amount of such payment, and the time at which 

13 such payment shall be made; 

14 (B) the Managing Trustee shall pay the 

15 certified amount from the Insurance Fund to 

16 the covered agency; and 

17 (C) the covered agency shall make the pay18 ment to the person. 

19 (3) REVIEW.—Any eligible employee dissatisfied 

20 with any initial determination under this section 

21 shall be entitled to reconsideration of the determina22 tion, and a hearing on the determination, by the 

23 Secretary to the same extent as is provided in sec24 tion 205(b) of the Social Security Act (42 U.S.C.22 

25 405(b)) and to judicial review of the final decision 


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1 after such hearing as is provided in section 205(g) 

2 of the Social Security Act (42 U.S.C. 405(g)). 

3 (4) WITHHOLDING OF CERTIFICATION.—In any 

4 case in which a review of the covered agency’s deci5 sion is or may be sought under paragraph (3), the 

6 covered agency may withhold certification of pay7 ment pending such review. 

8 (5) OTHER COMPENSATION.—Except as pro9 vided in section 105, no employee shall be eligible to 

10 receive paid leave benefits under this title for any 

11 period during which— 

12 (A) the employee is receiving worker’s 

13 compensation or compensation through unem14 ployment insurance in connection with the event 

15 for which the employee is taking the leave; or 

16 (B) the employee is receiving paid leave 

17 benefits from an employer under a voluntary 

18 employer plan approved under section 104. 

19 (f) REGULATIONS.—The Secretary shall issue regula20 tions to carry out this section, including the determination 

21 of benefits for leave taken intermittently or on a reduced 

22 leave schedule, or for leave taken by a part-time, seasonal, 

23 or intermittent employee. 


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1 SEC. 104. VOLUNTARY EMPLOYER PLAN. 

2 (a) IN GENERAL.—Any employer may submit an ap3 plication to the Secretary for approval of a voluntary plan. 

4 The Secretary may require the employer to resubmit the 

5 plan for approval on a annual basis. During a period for 

6 which the Secretary has approved a plan, the applicant 

7 shall provide a voluntary paid benefit under the plan rath8 er than participating in the Program. 

9 (b) APPROVAL.—The Secretary shall approve the vol10 untary plan of the applicant if the Secretary finds each 

11 of the following with respect to the applicant: 

12 (1) The rights afforded to the employees cov13 ered under the plan are equal to or greater than the 

14 rights afforded through the Program. 

15 (2) The plan has been made available to all of 

16 the employees of the applicant employed in the 

17 United States or to all employees at any 1 distinct, 

18 separate establishment maintained by the applicant 

19 in the United States. 

20 (3) A majority of the employees of the employer 

21 employed in the United States or a majority of the 

22 employees employed at any one distinct, separate es23 tablishment maintained by the employer in the 

24 United States have consented to the plan. 

25 (4) The plan provides for insurance to be issued 

26 by an admitted disability insurer approved by the 


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1 Secretary or equivalent insurance (which may be 

2 self-insurance). 

3 (5) The applicant has consented to the plan and 

4 has agreed to make the premium contributions re5 quired, if any, and transmit the proceeds to the dis6 ability insurer, if any. 

7 (6) The plan provides for the inclusion of future 

8 employees. 

9 (7)(A) The plan will be in effect for a period of 

10 not less than 1 year and, thereafter, continuously 

11 unless the Secretary finds that the applicant has 

12 given notice of intent to terminate the plan, as de13 scribed in subparagraph (B), and that the fee de14 scribed in subparagraph (C) has been paid. 

15 (B) The notice shall be filed in writing with the 

16 Secretary and shall be effective— 

17 (i) on the anniversary of the effective date 

18 of the plan next following the date of the filing 

19 of the notice; or 

20 (ii) if such anniversary would occur less 

21 than 30 days after the date of the filing of the 

22 notice, on the next anniversary of that effective 

23 date. 

24 (C) The applicant shall pay a fee to the Sec25 retary in such amount as the Secretary determines 


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1 to be adequate to provide leave benefits under this 

2 title to all eligible employees of the applicant for a 

3 period of at least 4 months, plus an amount to pay 

4 administrative costs related to processing and paying 

5 such benefits. 

6 (D) Amounts received by the Secretary under 

7 this paragraph shall be deposited in the Insurance 

8 Fund. 

9 (8) The amount of deductions from the wages 

10 of an employee that is in effect for the plan shall not 

11 be increased on any date other than on the date of 

12 an anniversary of the effective date of the plan. 

13 (c) ORDERS AND WITHDRAWAL OF APPROVAL.—If 

14 the Secretary finds that a voluntary plan employer is not 

15 paying voluntary paid benefits required under the vol16 untary plan to the employees under the plan, the Secretary 

17 may order the employer to make the payments. If the Sec18 retary finds that a voluntary plan employer is not com19 plying with the provisions of the plan, including by not 

20 paying voluntary paid benefits required under the plan, 

21 the Secretary may revoke the Secretary’s approval for the 

22 plan, and require the employer to participate in the Pro23 gram. 

24 SEC. 105. ADDITIONAL BENEFITS. 

25 (a) ADDITIONAL EMPLOYER BENEFITS.— 


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1 (1) COVERED EMPLOYERS.—Nothing in this 

2 title shall be construed to discourage a covered em3 ployer from providing an additional benefit in con4 junction with leave described in section 103(a) to an 

5 eligible employee, in addition to the leave benefit 

6 provided to that employee. The additional employer 

7 benefit shall not reduce the amount of the leave ben8 efit that an eligible employee receives under this 

9 title. 

10 (2) VOLUNTARY PLAN EMPLOYERS.—Nothing 

11 in this title shall be construed to discourage a vol12 untary plan employer from providing an additional 

13 benefit in conjunction with leave described in section 

14 103(a) to an employee, in addition to the voluntary 

15 paid benefit provided to that employee. The addi16 tional employer benefit shall not reduce the amount 

17 of the voluntary paid benefit that an employee re18 ceives under a voluntary plan described in section 

19 104. 

20 (b) COLLECTIVE BARGAINING.— 

21 (1) MORE PROTECTIVE.—Nothing in this title 

22 shall be construed to diminish the obligation of a 

23 covered employer or voluntary plan employer to com24 ply with any collective bargaining agreement or any 

25 employment benefit program or plan that provides 


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1 greater paid leave rights to employees than the 

2 rights established under this title (including rights 

3 established under a plan described in section 104). 

4 (2) LESS PROTECTIVE.—The rights established 

5 for employees under this title (including rights es6 tablished under a plan described in section 104) 

7 shall not be diminished by any collective bargaining 

8 agreement or any employment benefit program or 

9 plan. 

10 SEC. 106. PROHIBITED ACTS BY EMPLOYER. 

11 (a) INTERFERENCE WITH RIGHTS.—It shall be un12 lawful for any covered employer to interfere with, restrain, 

13 or deny the exercise of or the attempt to exercise, any 

14 right provided under this title. 

15 (b) DISCRIMINATION.—It shall be unlawful for any 

16 covered employer to discharge or in any other manner dis17 criminate against any individual for opposing any practice 

18 made unlawful by this title. 

19 (c) INTERFERENCE WITH PROCEEDINGS OR INQUIR20 IES.—It shall be unlawful for any person to discharge or 

21 in any other manner discriminate against any individual 

22 because such individual— 

23 (1) has filed any charge, or has instituted or 

24 caused to be instituted any proceeding, under or re25 lated to this title; 


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1 (2) has given, or is about to give, any informa2 tion in connection with any inquiry or proceeding re3 lating to any right provided under this title; or 

4 (3) has testified, or is about to testify, in any 

5 inquiry or proceeding relating to any right provided 

6 under this title. 

7 SEC. 107. ENFORCEMENT. 

8 (a) CIVIL ACTION BY EMPLOYEES.— 

9 (1) LIABILITY.—Any covered employer who vio10 lates section 106 shall be liable to any eligible em11 ployee affected— 

12 (A) for damages equal to— 

13 (i) the amount of— 

14 (I) any wages, salary, employ15 ment benefits, or other compensation 

16 denied or lost to such employee by 

17 reason of the violation; or 

18 (II) in a case in which wages, 

19 salary, employment benefits, or other 

20 compensation have not been denied or 

21 lost to the employee, any actual mone22 tary losses sustained by the employee 

23 as a direct result of the violation, such 

24 as the cost of providing care, up to a 


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1 sum equal to 8 weeks of wages or sal2 ary for the employee; 

3 (ii) the interest on the amount de4 scribed in clause (i) calculated at the pre5 vailing rate; and 

6 (iii) an additional amount as liq7 uidated damages equal to the sum of the 

8 amount described in clause (i) and the in9 terest described in clause (ii), except that 

10 if a covered employer who has violated sec11 tion 106 proves to the satisfaction of the 

12 court that the act or omission which vio13 lated section 106 was in good faith and 

14 that the employer had reasonable grounds 

15 for believing that the act or omission was 

16 not a violation of section 106, such court 

17 may, in the discretion of the court, reduce 

18 the amount of the liability to the amount 

19 and interest determined under clauses (i) 

20 and (ii), respectively; and 

21 (B) for such equitable relief as may be ap22 propriate, including employment, reinstatement, 

23 and promotion. 

24 (2) RIGHT OF ACTION.— 


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1 (A) IN GENERAL.—Except as provided in 

2 subparagraph (B), an action to recover the 

3 damages or equitable relief prescribed in para4 graph (1) may be maintained against any cov5 ered employer (including a public agency) in 

6 any Federal or State court of competent juris7 diction by any 1 or more employees for and on 

8 behalf of— 

9 (i) the employees; or 

10 (ii) the employees and other employ11 ees similarly situated. 

12 (B) LIMITATION.—The right provided by 

13 subparagraph (A) to bring an action by or on 

14 behalf of any employee shall terminate— 

15 (i) on the filing of a complaint by the 

16 Secretary in an action under subsection 

17 (b)(3) in which restraint is sought of any 

18 further delay in the payment of the 

19 amount described in paragraph (1)(A) to 

20 such employee by an employer responsible 

21 under paragraph (1) for the payment; or 

22 (ii) on the filing of a complaint by the 

23 Secretary in an action under paragraph (1) 

24 or (2) of subsection (b) in which a recovery 

25 is sought of the damages described in 


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1 paragraph (1)(A) owing to an eligible em2 ployee by an employer liable under para3 graph (1), 

4 unless the action described in clause (i) or (ii) 

5 is dismissed without prejudice on motion of the 

6 Secretary. 

7 (3) FEES AND COSTS.—The court in an action 

8 brought under this subsection shall, in addition to 

9 any judgment awarded to the plaintiff, allow a rea10 sonable attorneys’ fee, reasonable expert witness 

11 fees, and other costs of the action to be paid by the 

12 defendant. 

13 (b) ACTIONS BY THE SECRETARY.— 

14 (1) ADMINISTRATIVE ACTION.—The Secretary 

15 shall receive, investigate, and attempt to resolve 

16 complaints of violations of section 106 in the same 

17 manner that the Secretary receives, investigates, and 

18 attempts to resolve complaints of violations of sec19 tions 6 and 7 of the Fair Labor Standards Act of 

20 1938 (29 U.S.C. 206 and 207). 

21 (2) CIVIL ACTION.— 

22 (A) RIGHT OF ACTION.—The Secretary 

23 may bring an action in any court of competent 

24 jurisdiction to recover the damages described in 

25 subsection (a)(1)(A). 


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1 (B) SUMS RECOVERED.—Any sums recov2 ered by the Secretary pursuant to this para3 graph shall be held in a special deposit account 

4 and shall be paid, on order of the Secretary, di5 rectly to each employee affected. Any such sums 

6 not paid to an employee because of inability to 

7 do so within a period of 3 years shall be depos8 ited into the Treasury of the United States as 

9 miscellaneous receipts. 

10 (3) ACTION FOR INJUNCTION BY THE SEC11 RETARY.—The district courts of the United States 

12 shall have jurisdiction, for cause shown, in an action 

13 brought by the Secretary— 

14 (A) to restrain violations of section 106, 

15 including the restraint of any withholding of 

16 payment of wages, salary, employment benefits, 

17 or other compensation, plus interest, found by 

18 the court to be due to eligible employees; or 

19 (B) to award such other equitable relief as 

20 may be appropriate, including employment, re21 instatement, and promotion. 

22 (4) SOLICITOR OF LABOR.—The Solicitor of 

23 Labor may appear for and represent the Secretary 

24 on any litigation brought under this subsection. 

25 (c) LIMITATION.— 


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1 (1) Except as provided in paragraph (2), an ac2 tion may be brought under subsections (a) or (b) not 

3 later than 2 years after the date of the last event 

4 constituting the alleged violation for which the ac5 tion is brought. 

6 (2) WILLFUL VIOLATION.—In the case of such 

7 action brought for a willful violation of section 106, 

8 such action may be brought within 3 years of the 

9 date of the last event constituting the alleged viola10 tion for which such action is brought. 

11 (3) COMMENCEMENT.—In determining when an 

12 action is commenced by the Secretary for the pur13 poses of this subsection, it shall be considered to be 

14 commenced on the date when the complaint is filed. 

15 (d) INVESTIGATIVE AUTHORITY.— 

16 (1) IN GENERAL.—To ensure compliance with 

17 the provisions of this title, or any regulation or order 

18 issued under this title, the Secretary shall have, sub19 ject to paragraph (3), the investigative authority 

20 provided under section 11(a) of the Fair Labor 

21 Standards Act of 1938 (29 U.S.C. 211(a)). 

22 (2) OBLIGATION TO KEEP AND PRESERVE

23 RECORDS.—Any covered employer shall make, keep, 

24 and preserve records pertaining to compliance with 

25 this title in accordance with section 11(c) of the Fair 


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1 Labor Standards Act of 1938 (29 U.S.C. 211(c)) 

2 and in accordance with regulations issued by the 

3 Secretary. The Secretary shall have access to the 

4 records for purposes of conducting audits. 

5 (3) REQUIRED SUBMISSIONS GENERALLY LIM6 ITED TO AN ANNUAL BASIS.—The Secretary shall 

7 not under the authority of this subsection require 

8 any covered employer or any plan, fund, or program 

9 to submit to the Secretary any books or records 

10 more than once during any 12-month period, unless 

11 the Secretary has reasonable cause to believe there 

12 may exist a violation of this title or any regulation 

13 or order issued pursuant to this title, or is inves14 tigating a charge pursuant to subsection (b). 

15 (4) SUBPOENA POWER.—For the purposes of 

16 any investigation provided for in this section, the 

17 Secretary shall have the subpoena authority provided 

18 for under section 9 of the Fair Labor Standards Act 

19 of 1938 (29 U.S.C. 209). 

20 SEC. 108. PENALTIES. 

21 (a) PENALTIES FOR SUBMISSION OF FALSE CERTIFI22 CATIONS.—If the Secretary finds that any individual sub23 mits a false certification of the health condition of any 

24 person in order to obtain leave benefits under this title 

25 with the intent to defraud, the Secretary shall assess a 


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1 penalty against the individual in an amount up to 100 per2 cent of the benefits paid as a result of the false certifi3 cation. Penalties collected under this subsection shall be 

4 deposited in the Insurance Fund, notwithstanding the pro5 visions of title 31, United States Code and used to reim6 burse the covered employers involved for the amount of 

7 the leave benefits. 

8 (b) CRIMINAL PENALTIES FOR FALSE STATEMENTS

9 AND SOLICITATIONS.—Whoever— 

10 (1) makes or causes to be made any false state11 ment in support of an application for leave benefits 

12 under this title; 

13 (2) knowingly presents or causes to be pre14 sented any false written or oral material statement 

15 in support of any claim for leave benefits under this 

16 title; 

17 (3) knowingly solicits, receives, offers, pays, or 

18 accepts any rebate, refund, commission, preference, 

19 patronage, dividend, discount, or other consider20 ation, whether in the form of money or otherwise, as 

21 compensation or inducement for soliciting a claimant 

22 to apply for leave benefits under this title, except to 

23 the extent authorized by a law of the United States; 

24 or 


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1 (4) knowingly assists, abets, solicits, or con2 spires with any person to engage in an act that is 

3 prohibited under paragraph (1), (2), or (3), 

4 shall be guilty of a felony and upon conviction shall be 

5 fined under title 18, United States Code, or imprisoned 

6 for not more than 5 years, or both. 

7 SEC. 109. EDUCATION PROGRAMS. 

8 (a) AUTHORITY.—The Secretary shall develop and 

9 maintain a program of education concerning the rights 

10 and leave benefits under this title. 

11 (b) NOTICE TO EMPLOYERS.—The Secretary shall 

12 provide to each covered employer a notice informing em13 ployees of the rights and leave benefits available under this 

14 title. The notice shall be given by every covered employer 

15 to each employee hired, and to each employee taking leave 

16 as described in section 103(a). 

17 SEC. 110. REGULATIONS. 

18 The Secretary shall issue regulations to carry out this 

19 title. 

20 SEC. 111. EFFECTIVE DATE. 

21 This title shall take effect on January 1, 2011, and 

22 apply to periods of leave that commence on or after Janu23 ary 1, 2012. 


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1 TITLE II—CIVIL SERVICE FAM2 ILY AND MEDICAL LEAVE IN3 SURANCE PROGRAM 

4 SEC. 201. PROGRAM DEFINITIONS. 

5 In this title: 

6 (1) AGENCY.—The term ‘‘agency’’ means an 

7 agency covered under subchapter V of chapter 63 of 

8 title 5, United States Code. 

9 (2) AGENCY EMPLOYEE.—The term ‘‘agency 

10 employee’’ means an employee who— 

11 (A) meets the requirements of paragraph 

12 (1) of section 6381 of title 5, United States 

13 Code; and 

14 (B) has earned wages with an agency for 

15 12 of the last 18 months, prior to filing an ap16 plication for leave benefits under this title. 

17 SEC. 202. ESTABLISHMENT OF PROGRAM. 

18 (a) IN GENERAL.—The Director of the Office of Per19 sonnel Management shall establish a Civil Service Family 

20 and Medical Leave Insurance Program, and shall issue 

21 regulations providing for the implementation of the pro22 gram. In issuing the regulations, the Director shall require 

23 that the Director shall provide, or that the agencies shall 

24 provide, family and medical leave insurance benefits de25 scribed in section 103 to agency employees. The regulaVerDate Nov 24 2008 05:41 Mar 26, 2009 Jkt 079200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H1723.IH H1723

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1 tions issued under this subsection shall include provisions 

2 that are the same as regulations issued by the Secretary 

3 to implement the statutory provisions of sections 103, 

4 105, 109, and 110, except insofar as the Director may 

5 determine, for good cause shown and stated together with 

6 the regulations, that a modification of the regulations 

7 would be more effective for the implementation of the 

8 rights and protections under those sections. The regula9 tions shall provide for appropriate remedies and proce10 dures for violations of this title. 

11 (b) PAYMENT.—At the direction of the Director or 

12 the head of an agency, as specified in the regulations, the 

13 Managing Trustee shall pay funds from the Insurance 

14 Fund for the leave benefits. 

15 TITLE III—FAMILY AND MED16 ICAL LEAVE INSURANCE 

17 FUND 

18 SEC. 301. ESTABLISHMENT. 

19 (a) IN GENERAL.—There is created in the Treasury 

20 of the United States a trust fund to be known as the Fam21 ily and Medical Leave Insurance Fund. The Insurance 

22 Fund shall consist of such amounts as may be deposited 

23 in, or appropriated to, such fund as provided in this sec24 tion. 

25 (b) APPROPRIATIONS TO INSURANCE FUND.— 


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1 (1) AMOUNTS APPROPRIATED.—There is appro2 priated to the Insurance Fund for fiscal year 2011 

3 and each fiscal year thereafter, out of any moneys 

4 in the Treasury not otherwise appropriated, amounts 

5 equivalent to 100 percent of— 

6 (A) the family and medical leave premiums 

7 imposed by sections 3101(c) and 3111(c) of the 

8 Internal Revenue Code of 1986 with respect to 

9 wages (as defined in section 3121 of such Code) 

10 reported to the Secretary of the Treasury or the 

11 Secretary’s delegate under subtitle F of such 

12 Code after December 31, 2009, as determined 

13 by the Secretary of the Treasury by applying 

14 the applicable rates of premium payment under 

15 such sections to such wages, which wages shall 

16 be certified by the Commissioner of Social Se17 curity; 

18 (B) on the basis of the records of wages 

19 established and maintained by the Commis20 sioner of the Social Security Administration in 

21 accordance with such reports; 

22 (C) the family and medical leave premiums 

23 imposed by section 1401(c) of such Code with 

24 respect to self-employment income (as defined 

25 in section 1402 of such Code) reported to the 


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1 Secretary of the Treasury or the Secretary’s 

2 delegate on tax returns under subtitle F of such 

3 Code after December 31, 2009, as determined 

4 by the Secretary of the Treasury by applying 

5 the applicable rate of premium payment under 

6 such section 1401(c) to such self-employment 

7 income, which self-employment income shall be 

8 certified by the Commissioner of Social Secu9 rity; and 

10 (D) on the basis of the records of self-em11 ployment income established and maintained by 

12 the Commissioner of Social Security in accord13 ance with such returns. 

14 (2) TRANSFERS.—Such appropriated amounts 

15 shall be transferred from time to time from the gen16 eral fund of the Treasury to the Insurance Fund. 

17 Such amounts shall be determined on the basis of 

18 estimates by the Secretary of the Treasury of the 

19 premiums, specified in paragraph (1), paid to or de20 posited into the Treasury, and proper adjustments 

21 shall be made in amounts subsequently transferred 

22 to the extent prior estimates were in excess of or 

23 were less than such premiums. 

24 (3) INVESTMENTS.—All amounts transferred to 

25 the Insurance Fund under paragraph (2) shall be inVerDate Nov 24 2008 05:41 Mar 26, 2009 Jkt 079200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\H1723.IH H1723

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1 vested by the Managing Trustee referred to in sec2 tion 302(c) in the same manner and to the same ex3 tent as the other assets of the Insurance Fund. 

4 SEC. 302. BOARD OF TRUSTEES. 

5 (a) ESTABLISHMENT AND MEMBERSHIP.—With re6 spect to the Insurance Fund, there is established a body 

7 to be known as the Board of Trustees of the Insurance 

8 Fund which shall be composed of the Secretary of the 

9 Treasury, the Secretary of Labor, the Commissioner of 

10 Social Security, and the Secretary of Health and Human 

11 Services, all ex officio, and of two members of the public 

12 (both of whom may not be from the same political party), 

13 who shall be nominated by the President, by and with the 

14 advice and consent of the Senate. 

15 (b) TERMS AND VACANCIES.—Members of the Board 

16 of Trustees shall serve for a period of 4 years. A member 

17 of the Board of Trustees nominated and confirmed as a 

18 member of the public to fill a vacancy occurring during 

19 a term shall be nominated and confirmed only for the re20 mainder of such term. An individual nominated and con21 firmed as a member of the public may serve in such posi22 tion after the expiration of such member’s term until the 

23 earlier of the date on which the member’s successor takes 

24 office or the date on which a report of the Board is first 


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1 issued under paragraph (2) after the expiration of the 

2 member’s term. 

3 (c) MANAGING TRUSTEE AND SECRETARY.—The 

4 Secretary of the Treasury shall be the Managing Trustee 

5 of the Board of Trustees. The Secretary of Labor shall 

6 serve as the Secretary of the Board of Trustees. 

7 (d) BASIC DUTIES OF THE BOARD OF TRUSTEES.— 

8 The Board of Trustees shall meet not less frequently than 

9 once each calendar year. It shall be the duty of the Board 

10 of Trustees to— 

11 (1) hold the Insurance Fund; 

12 (2) report to Congress not later than April 1 of 

13 each year— 

14 (A) on the operation and status of the In15 surance Fund during the fiscal year preceding 

16 the fiscal year in which the report is made; and 

17 (B) on the expected operation and status 

18 of the Insurance Fund during the fiscal year in 

19 which the report is made and the next 2 fiscal 

20 years; 

21 (3) report immediately to Congress whenever 

22 the Board is of the opinion that the amount in the 

23 Insurance Fund is unduly small; and 

24 (4) review the general policies followed in man25 aging the Insurance Fund, and recommend changes 


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1 in such policies, including necessary changes in the 

2 provisions of law that govern the way in which the 

3 Insurance Fund is to be managed. 

4 (e) REQUIREMENTS RELATING TO ANNUAL RE5 PORT.—The report provided for in subsection (d)(2) shall 

6 include a statement of the assets of, and the disburse7 ments made from, the Insurance Fund during the fiscal 

8 year preceding the fiscal year in which the report is made, 

9 an estimate of the expected income to, and disbursements 

10 to be made from, the Insurance Fund during the fiscal 

11 year in which the report is made and each of the next 

12 two fiscal years, and a statement of the actuarial status 

13 of the Insurance Fund. Such report shall also include an 

14 actuarial opinion by an appropriate employee of the De15 partment of Labor certifying that the techniques and 

16 methodologies used for the report are generally accepted 

17 within the actuarial profession and that the assumptions 

18 and cost estimates used for the report are reasonable. 

19 (f) LIABILITY.—A person serving as a member of the 

20 Board of Trustees shall not be considered to be a fiduciary 

21 and shall not be personally liable for actions taken in such 

22 capacity with respect to the Insurance Fund. 


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1 SEC. 303. INVESTMENT OF THE FAMILY AND MEDICAL 

2 LEAVE INSURANCE FUND. 

3 (a) OBLIGATIONS.—It shall be the duty of the Man4 aging Trustee to invest such portion of the Insurance 

5 Fund as is not, in the trustee’s judgment, required to meet 

6 current withdrawals. Such investments may be made only 

7 in interest-bearing obligations of the United States or in 

8 obligations guaranteed as to both principal and interest 

9 by the United States. 

10 (b) ACQUISITION.—The obligations referred to in 

11 subsection (a) may be acquired— 

12 (1) on original issue at the issue price; or 

13 (2) by purchase of outstanding obligations at 

14 the market price. 

15 (c) OBLIGATIONS ISSUED FOR PURCHASE BY

16 FUND.—The purposes for which obligations of the United 

17 States may be issued under chapter 31 of title 31, United 

18 States Code, are extended to authorize the issuance at par 

19 of public debt obligations for purchase by the Insurance 

20 Fund. Such obligations issued for purchase by the Insur21 ance Fund shall have dates of maturity fixed with due re22 gard for the needs of the Insurance Fund. Such obliga23 tions shall bear interest at a rate equal to— 

24 (1) except as provided in paragraph (2), the av25 erage market yield (computed by the Managing 

26 Trustee on the basis of market quotations as of the 


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1 end of the calendar month preceding the date of 

2 such issue) on all marketable interest-bearing obliga3 tions of the United States forming a part of the 

4 public debt that are not due or callable until after 

5 the expiration of four years from the end of such 

6 calendar month; or 

7 (2) in a case in which such average market 

8 yield is not a multiple of 0.1 percent, the multiple 

9 of 0.1 percent nearest such market yield. 

10 (d) OTHER OBLIGATIONS.—The Managing Trustee 

11 may purchase interest-bearing obligations of the United 

12 States that are not described in subsection (c) or obliga13 tions guaranteed as to both principal and interest by the 

14 United States, on original issue or at the market price, 

15 only in cases in which the trustee determines that the pur16 chase of obligations described in this paragraph is in the 

17 public interest. 

18 (e) DISPOSITION AND REDEMPTION OF OBLIGA19 TIONS.—Any obligations acquired by the Insurance Fund 

20 (except public debt obligations issued exclusively to the In21 surance Fund) may be sold by the Managing Trustee at 

22 the market price, and such public debt obligations may 

23 be redeemed at par plus accrued interest. 

24 (f) CREDITING OF INTEREST AND PROCEEDS.—The 

25 interest on, and the proceeds from the sale or redemption 


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1 of, any obligations held in the Insurance Fund shall be 

2 credited to and form a part of the Insurance Fund. 

3 SEC. 304. PAYMENTS FROM FAMILY AND MEDICAL LEAVE 

4 INSURANCE FUND. 

5 The Managing Trustee shall pay from time to time 

6 from the Insurance Fund such amounts as the Secretary 

7 of Labor certifies are necessary to make the payments pro8 vided for by section 103, and payments with respect to 

9 administrative expenses under section 305. 

10 SEC. 305. ADMINISTRATIVE EXPENSES. 

11 (a) AVAILABILITY OF INSURANCE FUND.—Under 

12 regulations that shall be prescribed by the Secretary of 

13 Labor, funds shall be made available from the Insurance 

14 Fund in connection with the administration of this Act 

15 and the administration of related provisions of the Inter16 nal Revenue Code of 1986 in the same manner and extent 

17 as funds are made available from the trust funds referred 

18 to in section 201(g) of the Social Security Act (42 U.S.C. 

19 401(g)) in connection with the administration of the rel20 evant provisions referred to in such section. 

21 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

22 are authorized to be made available for expenditure such 

23 amounts as Congress may determine to be appropriate to 

24 pay the costs of the part of the administration of this Act 

25 (including start-up costs, technical assistance, and costs 


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1 for small employers electing to participate in the Family 

2 and Medical Leave Insurance Program) for which the Sec3 retary of Labor is responsible. 

4 (c) GIFTS AND BEQUESTS.—The Managing Trustee 

5 may accept on behalf of the United States money gifts 

6 and bequests made unconditionally to the Insurance Fund 

7 for the benefit of the Insurance Fund or any activity fi8 nanced through the Insurance Fund and such gifts and 

9 bequests shall be deposited into the Insurance Fund. 

10 (d) PROCESSING OF TAX DATA.—Section 232 of the 

11 Social Security Act (42 U.S.C. 432) shall apply with re12 spect to this Act, in the same manner and to the same 

13 extent as such section applies with respect to title II of 

14 the Social Security Act (42 U.S.C. 401 et seq.). 

15 SEC. 306. AMENDMENTS TO THE INTERNAL REVENUE CODE 

16 OF 1986. 

17 (a) EMPLOYEE PREMIUMS.—Section 3101 of the In18 ternal Revenue Code of 1986 (relating to tax on employ19 ees) is amended— 

20 (1) by redesignating subsection (c) as sub21 section (d); and 

22 (2) by inserting after subsection (c) the fol23 lowing new subsection: 

24 ‘‘(c) FAMILY AND MEDICAL LEAVE PREMIUMS.— 


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1 ‘‘(1) IN GENERAL.—In addition to the taxes im2 posed by subsections (a) and (b), there is imposed 

3 on the income of every individual a family and med4 ical leave premium equal to the applicable percent5 age of the wages (as defined in section 3121(a)) re6 ceived by the individual with respect to employment 

7 (as defined in section 3121(b)). 

8 ‘‘(2) APPLICABLE PERCENTAGE.—For purposes 

9 of paragraph (1), the applicable percentage is— 

10 ‘‘(A) 0.1 percent with respect to periods of 

11 employment by a small employer (as defined in 

12 section 3(b) of the Family Leave Insurance Act 

13 of 2009) electing to participate in the Family 

14 and Medical Leave Insurance Program (estab15 lished under section 102 of such Act); and 

16 ‘‘(B) 0.2 percent with respect to all other 

17 periods of employment. 

18 ‘‘(3) EXCEPTION FOR CERTAIN EMPLOY19 MENT.—Paragraph (1) shall not apply with respect 

20 to a period of employment— 

21 ‘‘(A) by an employer during which the Sec22 retary of Labor determines the employer has in 

23 effect a plan which is equivalent to or better 

24 than the Family and Medical Leave Insurance 


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1 Program (established under section 102 of the 

2 Family Leave Insurance Act of 2009); or 

3 ‘‘(B) by a small employer (as so defined) 

4 who has not elected to participate in such Pro5 gram. 

6 For purposes of the preceding sentence, the Sec7 retary of Labor shall prescribe such regulations as 

8 may be appropriate or necessary, including regula9 tions requiring documentation of employer pro10 grams.’’. 

11 (b) EMPLOYER PREMIUMS.—Section 3111 of the In12 ternal Revenue Code of 1986 (relating to tax on employ13 ers) is amended— 

14 (1) by redesignating subsection (c) as sub15 section (d); and 

16 (2) by inserting after subsection (c) the fol17 lowing new subsection: 

18 ‘‘(c) FAMILY AND MEDICAL LEAVE PREMIUMS.— 

19 ‘‘(1) IN GENERAL.—In addition to the excise 

20 taxes imposed by subsections (a) and (b), there is 

21 imposed on every employer a family and medical 

22 leave premium, with respect to having individuals in 

23 such employer’s employ, equal to the applicable per24 centage of the wages (as defined in section 3121(a)) 


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1 paid by such employer with respect to employment 

2 (as defined in section 3121(b)). 

3 ‘‘(2) APPLICABLE PERCENTAGE.—For purposes 

4 of paragraph (1), the applicable percentage is— 

5 ‘‘(A) 0.1 percent with respect to small em6 ployers (as defined in section 3(b) of the Fam7 ily Leave Insurance Act of 2009) electing to 

8 participate in the Family and Medical Leave In9 surance Program (established under section 

10 102 of such Act); and 

11 ‘‘(B) 0.2 percent with respect to all other 

12 employers. 

13 ‘‘(3) EXCEPTION FOR CERTAIN EMPLOYERS.— 

14 Paragraph (1) shall not apply for any period with 

15 respect to an employer to whom paragraph (1) of 

16 section 3101(c) does not apply by reason of para17 graph (3) thereof.’’. 

18 (c) SELF-EMPLOYED PREMIUMS.—Section 1401 of 

19 the Internal Revenue Code of 1986 is amended— 

20 (1) by redesignating subsection (c) as sub21 section (d); and 

22 (2) by inserting after subsection (b) the fol23 lowing new subsection: 

24 ‘‘(c) FAMILY AND MEDICAL LEAVE PREMIUMS.— 


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1 ‘‘(1) IN GENERAL.—In addition to the taxes im2 posed by subsections (a) and (b), there is imposed 

3 for each taxable year, on the self-employment income 

4 of every individual, a family and medical leave pre5 mium equal to 0.4 percent of the amount of the self6 employment income for such taxable year. 

7 ‘‘(2) EXCEPTION FOR CERTAIN EMPLOYERS.— 

8 Paragraph (1) shall not apply for any period with 

9 respect to an employer who has not elected to par10 ticipate in the Family and Medical Leave Insurance 

11 Program (established under section 102 of the Fam12 ily Leave Insurance Act of 2009).’’. 

13 (d) CONFORMING AMENDMENTS TO SOCIAL SECU14 RITY ACT.—Section 201 of the Social Security Act (42 

15 U.S.C. 401) is amended— 

16 (1) by striking ‘‘sections 3101(b) and 3111(b)’’ 

17 both places it appears in subsection (a)(3) and in18 serting ‘‘sections 3101(b), 3101(c), 3111(b), and 

19 3111(c)’’, and 

20 (2) by striking ‘‘section 1401(b)’’ both places it 

21 appears in subsection (a)(4) and inserting ‘‘sections 

22 1401(b) and 1401(c)’’. 

23 (e) EFFECTIVE DATE.— 


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1 (1) EMPLOYMENT PREMIUMS.—The amend2 ments made by subsections (a), (b), and (d)(1) shall 

3 apply to wages paid after December 31, 2010. 

4 (2) SELF-EMPLOYMENT PREMIUMS.—The 

5 amendments made by subsections (c) and (d)(2) 

6 shall apply to taxable years beginning after Decem7 ber 31, 2010. 

Æ 


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