II 

114TH CONGRESS 

1ST SESSION S. 786 

To provide paid family and medical leave benefits to certain individuals, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 18, 2015 

Mrs. GILLIBRAND (for herself, Mr. BROWN, Mr. BOOKER, Ms. HIRONO, Mr. 

MARKEY, Mr. MERKLEY, Ms. MIKULSKI, Mr. SCHATZ, Mr. WHITEHOUSE, Ms. BALDWIN, Mr. REED, Mr. BLUMENTHAL, and Ms. WARREN) 

introduced the following bill; which was read twice and referred to the 

Committee on Finance 

A BILL 

To provide paid family and medical leave benefits to certain 

individuals, 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 and Medical 

5 Insurance Leave Act’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 

8 (1) In nearly two-thirds of families with chil9 dren, all adults in the household work. Three in four 


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1 caregivers have worked at a paying job at some 

2 point during their caregiving experience. Without 

3 paid family and medical leave, many workers are un4 able to take time away from work to care for new5 born children, ill or aging parents and relatives, or 

6 themselves. 

7 (2) Both women and men need to be able to 

8 take time off work to participate in early care of 

9 their children, in the care of seriously ill family 

10 members, and to address their own serious health 

11 conditions. Yet, a mere 13 percent of workers in the 

12 United States have access to paid family leave 

13 through their employers, and fewer than 40 percent 

14 have access to short-term disability insurance pro15 vided by their employer to use for their own ill16 nesses. 

17 (3) Many workers cannot afford to take unpaid 

18 time off work to provide care. According to the De19 partment of Labor, nearly half of workers who quali20 fied for leave under the Family and Medical Leave 

21 Act of 1993 (FMLA) in 2011 were unable to take 

22 the leave because they could not afford to take time 

23 off without pay. Six in ten workers who took par24 tially paid or unpaid leave reported difficulty making 


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1 ends meet; half of these workers were forced to cut 

2 their leaves short due to financial constraints. 

3 (4) Only 13 percent of all workers had access 

4 to paid family leave in 2013 and it was available to 

5 only 4 percent of individuals working in the lowest 

6 paying jobs. Workers who lack paid family leave face 

7 lost wages or even job loss when they miss work be8 cause of their own illness or to care for an ill child 

9 or parent. In this way, access to paid leave plays a 

10 critical role in families’ efforts to maintain employ11 ment and economic security. 

12 (5) Caregiving has a high value but also comes 

13 at a high cost for family caregivers. The estimated 

14 value of unpaid family care provided in 2009 was 

15 $450 billion. Caregivers face financial, physical and 

16 emotional hardships, and in many cases their ca17 reers, incomes, and retirement security suffer be18 cause of their family responsibilities. Working care19 givers should not have to risk their family’s eco20 nomic security to fulfill their caregiving obligations. 

21 The average worker age 50 and older who leaves the 

22 workforce to care for an elderly parent loses more 

23 than $300,000 in earnings and retirement income. 

24 (6) The population over age 65 is expected to 

25 double within the next few decades. The number of 


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1 people with chronic conditions is expected to reach 

2 157 million by 2020. Many of these individuals will 

3 at some point require family care, and for older 

4 workers still in the workforce, many will need time 

5 off at some point to address serious health condi6 tions. 

7 (7) Ensuring working family caregivers have 

8 paid family leave to care for ailing elders could drive 

9 down Medicare costs by decreasing recurrences of 

10 ailments and re-admittance into hospitals. 

11 (8) Many workers are forced to quickly return 

12 to work after the birth or arrival of a child because 

13 they have no access to paid family and medical 

14 leave. Only half of new mothers take paid leave of 

15 any duration after the birth of their first child, and 

16 among women with less than a high school education 

17 the figure is less than 20 percent—a rate that has 

18 not changed in half a century. 

19 (9) When new mothers have no choice but to 

20 return to work without taking leave, children can ex21 perience a variety of negative outcomes including 

22 higher rates of infant mortality, lower rates of 

23 breastfeeding, lower rates of immunization, and a 

24 higher incidence of maternal physical and mental 

25 health concerns. California’s paid family leave insurVerDate Sep 11 2014 01:20 Mar 24, 2015 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S786.IS S786

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1 ance program has increased the number of weeks of 

2 leave that women take after childbirth, with larger 

3 effects among women in jobs that do not provide 

4 paid leave. 

5 (10) A nationwide paid family leave program 

6 would address the persistent sex discrimination in 

7 the utilization of leave benefits and reduce the dis8 parity between women and men regarding who takes 

9 time off from work to fulfill caregiving duties. This 

10 disparity is driven in part by the fact that men con11 tinue to earn more than women, and, as a result, it 

12 often makes more economic sense for women in two13 parent families to take unpaid leave and forgo their 

14 lower salary. 

15 (11) Many men would like to be more involved 

16 in caregiving and report greater work-family conflict 

17 than ever before. In California, men’s use of the 

18 State’s paid family leave insurance program to care 

19 for a new child has more than doubled since the pro20 gram’s implementation. 

21 (12) Paid family and medical leave promotes 

22 families’ financial security and independence, in23 creases worker retention, and promotes savings for 

24 taxpayers. Women who take paid leave after a 

25 child’s birth are more likely to be in the labor force 


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1 in the 9 to 12 months after a child’s birth and to 

2 earn higher wages in the year following their child’s 

3 birth. Both men and women who take paid leave 

4 after a child’s birth are less likely to receive food 

5 stamps and public assistance in the year following a 

6 child’s birth. 

7 (13) Without paid medical leave, workers who 

8 are ill or injured may return to work before being 

9 fully recovered, thus making them susceptible to a 

10 relapse or recurrence, and potentially placing addi11 tional burdens on the health care system. When a 

12 job requires physical stamina or ability, individuals 

13 who return to work too early may put themselves or 

14 others in jeopardy. 

15 (14) A social insurance model of providing paid 

16 family leave pioneered by the states of California, 

17 New Jersey, and Rhode Island has worked well for 

18 workers, their families, and employers. Between 

19 2004 and 2014, Californians filed more than 

20 1,900,000 claims to care for a family member or 

21 bond with a new child. The overwhelming majority 

22 of California employers report that the program had 

23 a positive or neutral effect on their business. 

24 (15) Between 2009 and 2014, more than 

25 160,000 New Jersey workers filed eligible claims for 


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1 family leave. Since January 2014, when Rhode Is2 land’s program started, more than 4,200 workers 

3 have filed paid family leave claims. 

4 (16) Researchers conclude that some employers 

5 experienced cost savings by coordinating their own 

6 benefits with those offered through the State paid 

7 family leave program. 

8 (17) Employers and employees benefit when 

9 workers have access to paid leave. Social Security is 

10 one of the Nation’s primary social insurance systems 

11 and it provides retirement assistance and disability 

12 benefits. When Social Security was created in 1934, 

13 most families had a stay at home caregiver. That is 

14 no longer the case. For the first time in the Nation’s 

15 history, half of all workers in the United States are 

16 women. The system needs to be changed to reflect 

17 the realities of today’s workforce and provide work18 ers with income when they need leave from work due 

19 to the birth of a child or a serious health condition. 

20 (18) When workers can care for themselves and 

21 their loved ones, employers experience positive im22 pacts. More than four times as many worksites cov23 ered by FMLA reported positive effects on employee 

24 productivity, absenteeism, turnover, career advance25 ment and morale, as well as the business’ profitVerDate Sep 11 2014 01:20 Mar 24, 2015 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S786.IS S786

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1 ability as reported negative effects in the Depart2 ment of Labor’s 2012 survey on the FMLA. 

3 (b) PURPOSE.—It is the purpose of this Act— 

4 (1) to help working families, including single 

5 working parents and dual-earner families, afford to 

6 take time away from work to provide care for a fam7 ily member and be good workers; 

8 (2) to provide workers with a reasonable level 

9 of wage replacement during time away from work 

10 for a serious health condition, for the birth or adop11 tion of a child, for the care of a child, spouse, or 

12 parent who has a serious health condition, for the 

13 care of an injured servicemember, or for qualifying 

14 exigencies arising from the deployment of a service15 member; 

16 (3) to address sex discrimination, promote the 

17 goal of equal employment opportunity for women 

18 and men, and to provide relief when employers vio19 late the law; and 

20 (4) to accomplish the purposes described in 

21 paragraphs (1), (2), and (3) in a manner that ac22 commodates the legitimate interests of employers. 

23 SEC. 3. DEFINITIONS. 

24 In this Act, the following definitions apply: 


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1 (1) CAREGIVING DAY.—The term ‘‘caregiving 

2 day’’ means, with respect to an individual, a cal3 endar day in which the individual engaged in quali4 fied caregiving. 

5 (2) COMMISSIONER.—The term ‘‘Commis6 sioner’’ means the Commissioner of Social Security. 

7 (3) DEPUTY COMMISSIONER.—The term ‘‘Dep8 uty Commissioner’’ means the Deputy Commissioner 

9 who heads the Office of Paid Family and Medical 

10 Leave established under section 4(a). 

11 (4) ELIGIBLE INDIVIDUAL.—The term ‘‘eligible 

12 individual’’ means an individual who is entitled to a 

13 benefit under section 5 for a particular month, upon 

14 filing an application for such benefit for such month. 

15 (5) INITIAL WAITING PERIOD.—The term ‘‘ini16 tial waiting period’’ means a period beginning with 

17 the first caregiving day of an individual occurring 

18 during the individual’s benefit period and ending 

19 after the earlier of— 

20 (A) the fifth caregiving day of the indi21 vidual occurring during the benefit period; or 

22 (B) the month preceding the first month in 

23 the benefit period during which occur not less 

24 than 15 caregiving days of the individual. 


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1 (6) QUALIFIED CAREGIVING.—The term ‘‘quali2 fied caregiving’’ means any activity engaged in by an 

3 individual, other than regular employment, for a rea4 son for which an eligible employee would be entitled 

5 to leave under subparagraphs (A) through (E) of 

6 paragraph (1) of section 102(a) of the Family and 

7 Medical Leave Act of 1993 (29 U.S.C. 2612(a)). 

8 (7) SELF-EMPLOYMENT INCOME.—The term 

9 ‘‘self-employment income’’ has the same meaning as 

10 such term in section 211(b) of such Act (42 U.S.C. 

11 411(b)). 

12 (8) STATE.—The term ‘‘State’’ means any 

13 State of the United States or the District of Colum14 bia or any Territory or possession of the United 

15 States. 

16 (9) WAGES.—The term ‘‘wages’’, except as such 

17 term is used in subsection (h)(2) of section 5, has 

18 the same meaning as such term in section 209 of the 

19 Social Security Act (42 U.S.C. 409). 

20 (10) 60-DAY LIMITATION PERIOD.—The term 

21 ‘‘60-day limitation period’’ means a period— 

22 (A) beginning with the first caregiving day 

23 of an individual occurring during the individ24 ual’s benefit period and after the expiration of 


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1 the individual’s 5-day waiting period, if applica2 ble; and 

3 (B) ending with the 60th caregiving day of 

4 the individual occurring during the benefit pe5 riod and after the expiration of the 5-day wait6 ing period, 

7 disregarding any caregiving day of the individual oc8 curring during any month in the benefit period after 

9 the first 20 caregiving days of the individual occur10 ring during such month. 

11 SEC. 4. OFFICE OF PAID FAMILY AND MEDICAL LEAVE. 

12 (a) ESTABLISHMENT OF OFFICE.—There is estab13 lished within the Social Security Administration an office 

14 to be known as the Office of Paid Family and Medical 

15 Leave. The Office shall be headed by a Deputy Commis16 sioner who shall be appointed by the Commissioner. 

17 (b) RESPONSIBILITIES OF DEPUTY COMMIS18 SIONER.—The Commissioner, acting through the Deputy 

19 Commissioner, shall be responsible for— 

20 (1) hiring personnel and making employment 

21 decisions with regard to such personnel; 

22 (2) issuing such regulations as may be nec23 essary to carry out the purposes of this Act; 


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1 (3) entering into cooperative agreements with 

2 other agencies and departments to ensure the effi3 ciency of the administration of the program; 

4 (4) determining eligibility for family and med5 ical leave insurance benefits under section 5; 

6 (5) determining benefit amounts for each 

7 month of such eligibility and making timely pay8 ments of such benefits to entitled individuals in ac9 cordance with such section; 

10 (6) establishing and maintaining a system of 

11 records relating to the administration of such sec12 tion; 

13 (7) preventing fraud and abuse relating to such 

14 benefits; 

15 (8) providing information on request regarding 

16 eligibility requirements, the claims process, benefit 

17 amounts, maximum benefits payable, notice require18 ments, non-discrimination rights, confidentiality, co19 ordination of leave under this Act and other laws, 

20 collective bargaining agreements, and employer poli21 cies; 

22 (9) annually providing employers a notice in23 forming employees of the availability of such bene24 fits; 


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1 (10) annually making available to the public a 

2 report that includes the number of individuals who 

3 received such benefits, the purposes for which such 

4 benefits were received, and an analysis of utilization 

5 rates of such benefits by gender, race, ethnicity, and 

6 income levels; and 

7 (11) tailoring culturally and linguistically com8 petent education and outreach toward increasing uti9 lization rates of benefits under such section. 

10 (c) AVAILABILITY OF DATA.—The Commissioner 

11 shall make available to the Deputy Commissioner such 

12 data as the Commissioner determines necessary to enable 

13 the Deputy Commissioner to effectively carry out the re14 sponsibilities described in subsection (b). 

15 SEC. 5. FAMILY AND MEDICAL LEAVE INSURANCE BENEFIT 

16 PAYMENTS. 

17 (a) IN GENERAL.—Every individual who— 

18 (1) is insured for disability insurance benefits 

19 (as determined under section 223(c) of the Social 

20 Security Act (42 U.S.C. 423(c))) at the time such 

21 individual’s application is filed; 

22 (2) has earned income from employment during 

23 the 12 months prior to the month in which the ap24 plication is filed; 


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1 (3) has filed an application for a family and 

2 medical leave insurance benefit in accordance with 

3 subsection (d); and 

4 (4) was engaged in qualified caregiving, or an5 ticipates being so engaged, during the period that 

6 begins 90 days before the date on which such appli7 cation is filed or within 30 days after such date, 

8 shall be entitled to such a benefit for each month in the 

9 benefit period specified in subsection (c), not to exceed 60 

10 caregiving days per benefit period. 

11 (b) BENEFIT AMOUNT.— 

12 (1) IN GENERAL.—Except as otherwise pro13 vided in this subsection, the benefit amount to which 

14 an individual is entitled under this section for a 

15 month shall be an amount equal to the greater of— 

(A) the lesser of 1 16 ⁄18 of the wages and self17 employment income of the individual for the 

18 calendar year in which such wages and self-em19 ployment income are the highest among the 

20 most recent three calendar years, or the max21 imum benefit amount determined under para22 graph (2); or 

23 (B) the minimum benefit amount deter24 mined under paragraph (2), 


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1 multiplied by the quotient (not greater than 1) ob2 tained by dividing the number of caregiving days of 

3 the individual in such month by 20. 

4 (2) ANNUAL INCREASE OF MAXIMUM AND MIN5 IMUM BENEFIT AMOUNTS.— 

6 (A) For individuals who initially become el7 igible for family and medical leave insurance 

8 benefits in the first full calendar year after the 

9 date of enactment of this Act, the maximum 

10 monthly benefit amount and the minimum 

11 monthly benefit amount shall be $4,000 and 

12 $580, respectively. 

13 (B) For individuals who initially become el14 igible for family and medical leave insurance 

15 benefits in any calendar year after such first 

16 full calendar year the maximum benefit amount 

17 and the minimum benefit amount shall be, re18 spectively, the product of the corresponding 

19 amount determined with respect to the first cal20 endar year under subparagraph (A) and the 

21 quotient obtained by dividing— 

22 (i) the national average wage index 

23 (as defined in section 209(k)(1) of the So24 cial Security Act (42 U.S.C. 409(k)(1))) 

25 for the second calendar year preceding the 


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1 first calendar year for which the deter2 mination is made, by 

3 (ii) the national average wage index 

4 (as so defined) for 2015. 

5 (3) LIMITATIONS ON BENEFITS PAID.— 

6 (A) NONPAYABLE WAITING PERIOD.—Any 

7 calendar day during an individual’s benefit pe8 riod which occurs before the expiration of an 

9 initial waiting period shall not be taken into ac10 count under this subsection as a caregiving day 

11 of the individual. 

12 (B) LIMITATION ON TOTAL BENEFITS

13 PAID.—Any calendar day during an individual’s 

14 benefit period which occurs after the expiration 

15 of a 60-day limitation period shall not be taken 

16 into account under this subsection as a 

17 caregiving day of the individual. 

18 (4) REDUCTION IN BENEFIT AMOUNT ON AC19 COUNT OF RECEIPT OF CERTAIN BENEFITS.—A ben20 efit under this section for a month shall be reduced 

21 by the amount, if any, in certain benefits (as deter22 mined under regulations issued by the Commis23 sioner) as may be otherwise received by an indi24 vidual. For purposes of the preceding sentence, cer25 tain benefits include— 


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1 (A) periodic benefits on account of such in2 dividual’s total or partial disability under a 

3 workmen’s compensation law or plan of the 

4 United States or a State; and 

5 (B) periodic benefits on account of an indi6 vidual’s employment status under an unemploy7 ment law or plan of the United States or a 

8 State. 

9 (5) COORDINATION OF BENEFIT AMOUNT WITH

10 CERTAIN STATE BENEFITS.—A benefit received 

11 under this section shall be coordinated, in a manner 

12 determined by regulations issued by the Commis13 sioner, with the periodic benefits received from tem14 porary disability insurance or family leave insurance 

15 programs under any law or plan of a State, a polit16 ical subdivision (as that term is used in section 

17 218(b)(2) of the Social Security Act (42 U.S.C. 

18 418(b)(2))), or an instrumentality of 2 or more 

19 States (as that term is used in section 218(g) of 

20 such Act of the Social Security Act (42 U.S.C. 

21 418(g))). 

22 (c) BENEFIT PERIOD.— 

23 (1) IN GENERAL.—Except as provided in para24 graph (2), the benefit period specified in this sub25 section shall begin on the 1st day of the 1st month 


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1 in which the individual meets the criteria specified in 

2 paragraphs (1), (2), and (3) of subsection (a), and 

3 shall end on the date that is 365 days after the 1st 

4 day of the benefit period. 

5 (2) RETROACTIVE BENEFITS.—In the case of 

6 an application for benefits under this section for 

7 qualified caregiving in which the individual was en8 gaged at any time during the 90-day period pre9 ceding the date on which such application is sub10 mitted, the benefit period specified in this subsection 

11 shall begin on the later of— 

12 (A) the 1st day of the 1st month in which 

13 the individual engaged in such qualified 

14 caregiving; or 

15 (B) the 1st day of the 1st month that be16 gins during such 90-day period, 

17 and shall end on the date that is 365 days after the 

18 1st day of the benefit period. 

19 (d) APPLICATION.—An application for a family and 

20 medical leave insurance benefit shall include— 

21 (1) a statement that the individual was engaged 

22 in qualified caregiving, or anticipates being so en23 gaged, during the period that begins 90 days before 

24 the date on which the application is submitted or 

25 within 30 days after such date; 


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1 (2) if the qualified caregiving described in the 

2 statement in paragraph (1) is engaged in by the in3 dividual because of a serious health condition of the 

4 individual or a relative of the individual, a certifi5 cation, issued by the health care provider treating 

6 such serious health condition, that affirms the infor7 mation specified in paragraph (1) and contains such 

8 information as the Commissioner shall specify in 

9 regulations, which shall be no more than the infor10 mation that is required to be stated under section 

11 103(b) of the Family and Medical Leave Act of 

12 1993 (29 U.S.C. 2613(b)); 

13 (3) if such qualified caregiving is engaged in by 

14 the individual for any other authorized reason, a cer15 tification, issued by a relevant authority determined 

16 under regulations issued by the Commissioner, that 

17 affirms the circumstances giving rise to such reason; 

18 and 

19 (4) an attestation from the applicant that his or 

20 her employer has been provided with written notice 

21 of the individual’s intention to take family or med22 ical leave, if the individual has an employer, or to 

23 the Commissioner in all other cases. 

24 (e) INELIGIBILITY; DISQUALIFICATION.— 


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1 (1) INELIGIBILITY FOR BENEFIT.—An indi2 vidual shall be ineligible for a benefit under this sec3 tion for any month for which the individual is enti4 tled to— 

5 (A) disability insurance benefits under sec6 tion 223 of the Social Security Act (42 U.S.C. 

7 423) or a similar permanent disability program 

8 under any law or plan of a State or political 

9 subdivision or instrumentality of a State (as 

10 such terms are used in section 218 of the Social 

11 Security Act (42 U.S.C. 418)); 

12 (B) monthly insurance benefits under sec13 tion 202 of such Act (42 U.S.C. 402) based on 

14 such individual’s disability (as defined in sec15 tion 223(d) of such Act (42 U.S.C. 423(d))); or 

16 (C) benefits under title XVI of such Act 

17 (42 U.S.C. 1381 et seq.) based on such individ18 ual’s status as a disabled individual (as deter19 mined under section 1614 of such Act (42 

20 U.S.C. 1382c)). 

21 (2) DISQUALIFICATION.—An individual who has 

22 been convicted of a violation under section 208 of 

23 the Social Security Act (42 U.S.C. 408) or who has 

24 been found to have used false statements to secure 

25 benefits under this section, shall be ineligible for 


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1 benefits under this section for a 1-year period fol2 lowing the date of such conviction. 

3 (f) REVIEW OF ELIGIBILITY AND BENEFIT PAYMENT

4 DETERMINATIONS.— 

5 (1) ELIGIBILITY DETERMINATIONS.— 

6 (A) IN GENERAL.—The Commissioner 

7 shall provide notice to an individual applying 

8 for benefits under this section of the initial de9 termination of eligibility for such benefits, and 

10 the estimated benefit amount for a month in 

11 which one caregiving day of the individual oc12 curs, as soon as practicable after the applica13 tion is received. 

14 (B) REVIEW.—An individual may request 

15 review of an initial adverse determination with 

16 respect to such application at any time before 

17 the end of the 20-day period that begins on the 

18 date notice of such determination is received, 

19 except that such 20-day period may be extended 

20 for good cause. As soon as practicable after the 

21 individual requests review of the determination, 

22 the Commissioner shall provide notice to the in23 dividual of a final determination of eligibility 

24 for benefits under this section. 

25 (2) BENEFIT PAYMENT DETERMINATIONS.— 


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1 (A) IN GENERAL.—The Commissioner 

2 shall make any monthly benefit payment to an 

3 individual claiming benefits for a month under 

4 this section, or provide notice of the reason 

5 such payment will not be made if the Commis6 sioner determines that the individual is not en7 titled to payment for such month, not later 

8 than 20 days after the individual’s monthly 

9 benefit claim report for such month is received. 

10 Such monthly report shall be filed with the 

11 Commissioner not later than 15 days after the 

12 end of each month. 

13 (B) REVIEW.—If the Commissioner deter14 mines that payment will not be made to an in15 dividual for a month, or if the Commissioner 

16 determines that payment shall be made based 

17 on a number of caregiving days in the month 

18 inconsistent with the number of caregiving days 

19 in the monthly benefit claim report of the indi20 vidual for such month, the individual may re21 quest review of such determination at any time 

22 before the end of the 20-day period that begins 

23 on the date notice of such determination is re24 ceived, except that such 20-day period may be 

25 extended for good cause. Not later than 20 days 


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1 after the individual requests review of the deter2 mination, the Commissioner shall provide notice 

3 to the individual of a final determination of 

4 payment for such month, and shall make pay5 ment to the individual of any additional amount 

6 not included in the initial payment to the indi7 vidual for such month to which the Commis8 sioner determines the individual is entitled. 

9 (3) BURDEN OF PROOF.—An application for 

10 benefits under this section and a monthly benefit 

11 claim report of an individual shall each be presumed 

12 to be true and accurate, unless the Commissioner 

13 demonstrates by a preponderance of the evidence 

14 that information contained in the application is 

15 false. 

16 (4) DEFINITION OF MONTHLY BENEFIT CLAIM

17 REPORT.—For purposes of this subsection, the term 

18 ‘‘monthly benefit claim report’’ means, with respect 

19 to an individual for a month, the individual’s report 

20 to the Commissioner of the number of caregiving 

21 days of the individual in such month, which shall be 

22 filed no later than 15 days after the end of each 

23 month. 

24 (5) REVIEW.—All final determinations of the 

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1 able according to the procedures set out in section 

2 205 of the Social Security Act (42 U.S.C. 405). 

3 (g) RELATIONSHIP WITH STATE LAW; EMPLOYER

4 BENEFITS.— 

5 (1) IN GENERAL.—This section does not pre6 empt or supercede any provision of State or local 

7 law that authorizes a State or local municipality to 

8 provide paid family and medical leave benefits simi9 lar to the benefits provided under this section. 

10 (2) GREATER BENEFITS ALLOWED.—Nothing 

11 in this Act shall be construed to diminish the obliga12 tion of an employer to comply with any contract, col13 lective bargaining agreement, or any employment 

14 benefit program or plan that provides greater paid 

15 leave or other leave rights to employees than the 

16 rights established under this Act. 

17 (h) PROHIBITED ACTS; ENFORCEMENT.— 

18 (1) IN GENERAL.—It shall be unlawful for any 

19 person to discharge or in any other manner discrimi20 nate against an individual because the individual has 

21 applied for, indicated an intent to apply for, or re22 ceived family and medical leave insurance benefits. 

23 (2) CIVIL ACTION BY AN INDIVIDUAL.— 

24 (A) LIABILITY.—Any person who violates 

25 paragraph (1) shall be liable to any individual 


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1 employed by such person who is affected by the 

2 violation— 

3 (i) for damages equal to the sum of— 

4 (I) the amount of— 

5 (aa) any wages, salary, em6 ployment benefits, or other com7 pensation denied or lost to such 

8 individual by reason of the viola9 tion; or 

10 (bb) in a case in which 

11 wages, salary, employment bene12 fits, or other compensation have 

13 not been denied or lost to the in14 dividual, any actual monetary 

15 losses sustained by the individual 

16 as a direct result of the violation, 

17 such as the cost of providing 

18 care, up to a sum equal to 60 

19 calendar days of wages or salary 

20 for the individual; 

21 (II) the interest on the amount 

22 described in subclause (I) calculated 

23 at the prevailing rate; and 

24 (III) an additional amount as liq25 uidated damages equal to the sum of 


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1 the amount described in subclause (I) 

2 and the interest described in sub3 clause (II), except that if a person 

4 who has violated paragraph (1) proves 

5 to the satisfaction of the court that 

6 the act or omission which violated 

7 paragraph (1) was in good faith and 

8 that the person had reasonable 

9 grounds for believing that the act or 

10 omission was not a violation of para11 graph (1), such court may, in the dis12 cretion of the court, reduce the 

13 amount of the liability to the amount 

14 and interest determined under sub15 clauses (I) and (II), respectively; and 

16 (ii) for such equitable relief as may be 

17 appropriate, including employment, rein18 statement, and promotion. 

19 (B) RIGHT OF ACTION.—An action to re20 cover the damages or equitable relief prescribed 

21 in subparagraph (A) may be maintained against 

22 any person in any Federal or State court of 

23 competent jurisdiction by any individual for and 

24 on behalf of— 

25 (i) the individual; or 


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1 (ii) the individual and other individ2 uals similarly situated. 

3 (C) FEES AND COSTS.—The court in such 

4 an action shall, in addition to any judgment 

5 awarded to the plaintiff, allow a reasonable at6 torney’s fee, reasonable expert witness fees, and 

7 other costs of the action to be paid by the de8 fendant. 

9 (D) LIMITATIONS.—The right provided by 

10 subparagraph (B) to bring an action by or on 

11 behalf of any individual shall terminate— 

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

13 Commissioner in an action under para14 graph (5) in which restraint is sought of 

15 any further delay in the payment of the 

16 amount described in subparagraph (A)(I) 

17 to such individual by the person respon18 sible under subparagraph (A) for the pay19 ment; or 

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

21 Commissioner in an action under para22 graph (3) in which a recovery is sought of 

23 the damages described in subparagraph 

24 (A)(I) owing to an individual by a person 

25 liable under subparagraph (A), 


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

2 is dismissed without prejudice on motion of the 

3 Commissioner. 

4 (3) ACTION BY THE COMMISSIONER.— 

5 (A) CIVIL ACTION.—The Commissioner 

6 may bring an action in any court of competent 

7 jurisdiction to recover the damages described in 

8 paragraph (2)(A)(I). 

9 (B) SUMS RECOVERED.—Any sums recov10 ered by the Commissioner pursuant to subpara11 graph (A) shall be held in a special deposit ac12 count and shall be paid, on order of the Com13 missioner, directly to each individual affected. 

14 Any such sums not paid to an individual be15 cause of inability to do so within a period of 3 

16 years shall be deposited into the Federal Family 

17 and Medical Leave Insurance Trust Fund. 

18 (4) LIMITATION.— 

19 (A) IN GENERAL.—An action may be 

20 brought under this subsection not later than 3 

21 years after the date of the last event consti22 tuting the alleged violation for which the action 

23 is brought. 

24 (B) COMMENCEMENT.—An action brought 

25 by the Commissioner under this subsection shall 


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1 be considered to be commenced on the date 

2 when the complaint is filed. 

3 (5) ACTION FOR INJUNCTION BY COMMIS4 SIONER.—The district courts of the United States 

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

6 brought by the Commissioner— 

7 (A) to restrain violations of paragraph (1), 

8 including the restraint of any withholding of 

9 payment of wages, salary, employment benefits, 

10 or other compensation, plus interest, found by 

11 the court to be due to an individual; or 

12 (B) to award such other equitable relief as 

13 may be appropriate, including employment, re14 instatement, and promotion. 

15 (i) SPECIAL RULE FOR RAILROAD EMPLOYEES.—For 

16 purposes of subsection (a)(1), an individual shall be 

17 deemed to be insured for disability insurance benefits if 

18 the individual would be so insured if the individual’s serv19 ice as an employee (as defined in the section 1(b) of the 

20 Railroad Retirement Act of 1974) after December 31, 

21 1936, were included within the meaning of the term ‘‘em22 ployment’’ for purposes of title II of the Social Security 

23 Act (42 U.S.C. 401 et seq.). 

24 (j) DETERMINATION OF WHETHER AN ACTIVITY

25 CONSTITUTES QUALIFIED CAREGIVING.— 


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1 (1) IN GENERAL.—For purposes of determining 

2 whether an activity engaged in by an individual con3 stitutes qualified caregiving under this section— 

4 (A) the term ‘‘spouse’’ (as used in section 

5 102(a) of the Family and Medical Leave Act 

6 (29 U.S.C. 2612(a))) includes the individual’s 

7 domestic partner; and 

8 (B) the term ‘‘son or daughter’’ (as used 

9 in such section) includes a son or daughter (as 

10 defined in section 101 of such Act) of the indi11 vidual’s domestic partner. 

12 (2) DOMESTIC PARTNER.— 

13 (A) IN GENERAL.—For purposes of para14 graph (1), the term ‘‘domestic partner’’, with 

15 respect to an individual, means another indi16 vidual with whom the individual is in a com17 mitted relationship. 

18 (B) COMMITTED RELATIONSHIP DE19 FINED.—The term ‘‘committed relationship’’ 

20 means a relationship between two individuals 

21 (each at least 18 years of age) in which each 

22 individual is the other individual’s sole domestic 

23 partner and both individuals share responsi24 bility for a significant measure of each other’s 

25 common welfare. The term includes any such 


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•S 786 IS

1 relationship between two individuals, including 

2 individuals of the same sex, that is granted 

3 legal recognition by a State or political subdivi4 sion of a State as a marriage or analogous rela5 tionship, including a civil union or domestic 

6 partnership. 

7 (k) APPLICABILITY OF CERTAIN SOCIAL SECURITY

8 ACT PROVISIONS.—The provisions of sections 204, 205, 

9 206, and 208 of the Social Security Act shall apply to 

10 benefit payments authorized by and paid out pursuant to 

11 this section in the same way that such provisions apply 

12 to benefit payments authorized by and paid out pursuant 

13 to title II of such Act. 

14 (l) EFFECTIVE DATE FOR APPLICATIONS.—Applica15 tions described in this section may be filed beginning 18 

16 months after the date of enactment of this Act. 

17 SEC. 6. ESTABLISHMENT OF FAMILY AND MEDICAL LEAVE 

18 INSURANCE TRUST FUND. 

19 (a) IN GENERAL.—There is hereby created on the 

20 books of the Treasury of the United States a trust fund 

21 to be known as the ‘‘Federal Family and Medical Leave 

22 Insurance Trust Fund’’. The Federal Family and Medical 

23 Leave Insurance Trust Fund shall consist of such gifts 

24 and bequests as may be made as provided in section 

25 201(i)(1) of the Social Security Act (42 U.S.C. 401(i)(1)) 


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1 and such amounts as may be appropriated to, or deposited 

2 in, the Federal Family and Medical Leave Insurance 

3 Trust Fund as provided in this section. 

4 (b) AUTHORIZATION OF APPROPRIATIONS.— 

5 (1) IN GENERAL.—There is authorized to be 

6 appropriated to the Federal Family and Medical 

7 Leave Insurance Trust Fund out of moneys in the 

8 Treasury not otherwise appropriated— 

9 (A) for the first three fiscal years begin10 ning after the date of enactment of this Act, 

11 such sums as may be necessary for the Com12 missioner to administer the office established 

13 under section 4 and pay the benefits under sec14 tion 5; 

15 (B) 100 percent of the taxes imposed by 

16 sections 3101(c) and 3111(c) of the Internal 

17 Revenue Code of 1986 with respect to wages 

18 (as defined in section 3121 of such Code) re19 ported to the Secretary of the Treasury pursu20 ant to subtitle F of such Code, as determined 

21 by the Secretary of the Treasury by applying 

22 the applicable rate of tax under such sections to 

23 such wages; 

24 (C) 100 percent of the taxes imposed by 

25 section 1401(c) of such Code with respect to 


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•S 786 IS

1 self-employment income (as defined in section 

2 1402 of such Code) reported to the Secretary of 

3 the Treasury on tax returns under subtitle F of 

4 such Code, as determined by the Secretary of 

5 the Treasury by applying the applicable rate of 

6 tax under such section to such self-employment 

7 income; and 

8 (D) 100 percent of the taxes imposed by 

9 sections 3201(c), 3211(c), and 3221(c) of such 

10 Code with respect to compensation (as defined 

11 in section 3231 of such Code) reported to the 

12 Secretary of the Treasury on tax returns under 

13 subtitle F of such Code, as determined by the 

14 Secretary of the Treasury by applying the ap15 plicable rate of tax under such sections to such 

16 compensation. 

17 (2) REPAYMENT OF INITIAL APPROPRIATION.— 

18 Amounts appropriated pursuant to subparagraph 

19 (A) of paragraph (1) shall be repaid to the Treasury 

20 of the United States not later than 10 years after 

21 the first appropriation is made pursuant to such 

22 subparagraph. 

23 (3) TRANSFER TO TRUST FUND.—The amounts 

24 described in paragraph (2) shall be transferred from 

25 time to time from the general fund in the Treasury 


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•S 786 IS

1 to the Federal Family and Medical Leave Insurance 

2 Trust Fund, such amounts to be determined on the 

3 basis of estimates by the Secretary of the Treasury 

4 of the taxes, specified in such paragraph, paid to or 

5 deposited into the Treasury. Proper adjustments 

6 shall be made in amounts subsequently transferred 

7 to the extent prior estimates were inconsistent with 

8 the taxes specified in such paragraph. 

9 (c) MANAGEMENT OF TRUST FUND.—The provisions 

10 of subsections (c), (d), (e), (f), (i), and (m) of section 201 

11 of the Social Security Act (42 U.S.C. 401) shall apply with 

12 respect to the Federal Family and Medical Leave Insur13 ance Trust Fund in the same manner as such provisions 

14 apply to the Federal Old-Age and Survivors Insurance 

15 Trust Fund and the Disability Insurance Trust Fund. 

16 (d) BENEFITS PAID FROM TRUST FUND.—Benefit 

17 payments required to be made under section 5 shall be 

18 made only from the Federal Family and Medical Leave 

19 Insurance Trust Fund. 

20 (e) ADMINISTRATION.—There are authorized to be 

21 made available for expenditure, out of the Federal Family 

22 and Medical Leave Insurance Trust Fund, such sums as 

23 may be necessary to pay the costs of the administration 

24 of section 5, including start-up costs, technical assistance, 

25 outreach, education, evaluation, and reporting. 


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1 (f) PROHIBITION.—No funds from the Social Secu2 rity Trust Fund or appropriated to the Social Security Ad3 ministration to administer Social Security programs may 

4 be used for Federal Family and Medical Leave Insurance 

5 benefits or administration set forth under this Act. 

6 SEC. 7. INTERNAL REVENUE CODE PROVISIONS. 

7 (a) IN GENERAL.— 

8 (1) EMPLOYEE CONTRIBUTION.—Section 3101 

9 of the Internal Revenue Code of 1986 is amended— 

10 (A) by redesignating subsection (c) as sub11 section (d), and 

12 (B) by inserting after subsection (b) the 

13 following: 

14 ‘‘(c) FAMILY AND MEDICAL LEAVE INSURANCE.— 

15 ‘‘(1) IN GENERAL.—In addition to other taxes, 

16 there is hereby imposed on the income of every indi17 vidual a tax equal to the applicable percentage of the 

18 wages (as defined in section 3121(a)) received by the 

19 individual with respect to employment (as defined in 

20 section 3121(b)). 

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

22 of paragraph (1), the term ‘applicable percentage’ 

23 means 0.2 percent in the case of wages received in 

24 any calendar year.’’. 


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1 (2) EMPLOYER CONTRIBUTION.—Section 3111 

2 of such Code is amended— 

3 (A) by redesignating subsections (c) 

4 through (e) as subsections (d) through (f), re5 spectively, and 

6 (B) by inserting after subsection (b) the 

7 following: 

8 ‘‘(c) FAMILY AND MEDICAL LEAVE INSURANCE.— 

9 ‘‘(1) IN GENERAL.—In addition to other taxes, 

10 there is hereby imposed on every employer an excise 

11 tax, with respect to having individuals in his employ, 

12 equal to the applicable percentage of the wages (as 

13 defined in section 3121(a)) paid by the employer 

14 with respect to employment (as defined in section 

15 3121(b)). 

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

17 of paragraph (1), the term ‘applicable percentage’ 

18 means 0.2 percent in the case of wages paid in any 

19 calendar year.’’. 

20 (3) SELF-EMPLOYMENT INCOME CONTRIBU21 TION.— 

22 (A) IN GENERAL.—Section 1401 of such 

23 Code is amended— 

24 (i) by redesignating subsection (c) as 

25 subsection (d), and 


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•S 786 IS

1 (ii) by inserting after subsection (b) 

2 the following: 

3 ‘‘(c) FAMILY AND MEDICAL LEAVE INSURANCE.— 

4 ‘‘(1) IN GENERAL.—In addition to other taxes, 

5 there is hereby imposed for each taxable year, on the 

6 self-employment income of every individual, a tax 

7 equal to the applicable percentage of the amount of 

8 the self-employment income for such taxable year. 

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

10 of paragraph (1), the term ‘applicable percentage’ 

11 means 0.4 percent in the case of self-employment in12 come in any taxable year.’’. 

13 (B) EXCLUSION OF CERTAIN NET EARN14 INGS FROM SELF-EMPLOYMENT.—Section 

15 1402(b)(1) of such Code is amended by striking 

16 ‘‘tax imposed by section 1401(a)’’ and inserting 

17 ‘‘taxes imposed by subsections (a) and (c) of 

18 section 1401’’. 

19 (b) RAILROAD RETIREMENT TAX ACT.— 

20 (1) EMPLOYEE CONTRIBUTION.—Section 3201 

21 of such Code is amended— 

22 (A) by redesignating subsection (c) as sub23 section (d), and 

24 (B) by inserting after subsection (b) the 

25 following: 


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•S 786 IS

1 ‘‘(c) FAMILY AND MEDICAL LEAVE INSURANCE.— 

2 ‘‘(1) IN GENERAL.—In addition to other taxes, 

3 there is hereby imposed on the income of each em4 ployee a tax equal to the applicable percentage of 

5 the compensation received during any calendar year 

6 by such employee for services rendered by such em7 ployee. 

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

9 of paragraph (1), the term ‘applicable percentage’ 

10 means 0.2 percent in the case of compensation re11 ceived in any calendar year.’’. 

12 (2) EMPLOYEE REPRESENTATIVE CONTRIBU13 TION.—Section 3211 of such Code is amended— 

14 (A) by redesignating subsection (c) as sub15 section (d), and 

16 (B) by inserting after subsection (b) the 

17 following: 

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

19 ‘‘(1) IN GENERAL.—In addition to other taxes, 

20 there is hereby imposed on the income of each em21 ployee representative a tax equal to the applicable 

22 percentage of the compensation received during any 

23 calendar year by such employee representative for 

24 services rendered by such employee representative. 


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

2 of paragraph (1), the term ‘applicable percentage’ 

3 means 0.2 percent in the case of compensation re4 ceived in any calendar year.’’. 

5 (3) EMPLOYER CONTRIBUTION.—Section 3221 

6 of such Code is amended— 

7 (A) by redesignating subsections (c) and 

8 (d) as subsections (d) and (e), respectively, and 

9 (B) by inserting after subsection (b) the 

10 following: 

11 ‘‘(c) FAMILY AND MEDICAL LEAVE INSURANCE.— 

12 ‘‘(1) IN GENERAL.—In addition to other taxes, 

13 there is hereby imposed on every employer an excise 

14 tax, with respect to having individuals in his employ, 

15 equal to the applicable percentage of the compensa16 tion paid during any calendar year by such employer 

17 for services rendered to such employer. 

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

19 of paragraph (1), the term ‘applicable percentage’ 

20 means 0.2 percent in the case of compensation paid 

21 in any calendar year.’’. 

22 (c) CONFORMING AMENDMENTS.— 

23 (1) Section 6413(c) of the Internal Revenue 

24 Code of 1986 is amended— 

25 (A) in paragraph (1)— 


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1 (i) by inserting ‘‘, section 3101(c),’’ 

2 after ‘‘by section 3101(a)’’; and 

3 (ii) by striking ‘‘both’’ and inserting 

4 ‘‘each’’; and 

5 (B) in paragraph (2), by inserting ‘‘or 

6 3101(c)’’ after ‘‘3101(a)’’ each place it appears. 

7 (2) Section 15(a) of the Railroad Retirement 

8 Act of 1974 (45 U.S.C. 231n(a)) is amended by in9 serting ‘‘(other than sections 3201(c), 3211(c), and 

10 3221(c))’’ before the period at the end. 

11 (d) EFFECTIVE DATE.—The amendments made by 

12 this section shall take effect 120 days after the date of 

13 the enactment of this Act. 

14 SEC. 8. REGULATIONS. 

15 The Commissioner, in consultation with the Secretary 

16 of Labor, shall prescribe regulations necessary to carry out 

17 this Act. In developing such regulations, the Commissioner 

18 shall consider the input from a volunteer advisory body 

19 comprised of not more than 15 individuals, including ex20 perts in the relevant subject matter and officials charged 

21 with implementing State paid family and medical leave in22 surance programs. The Commissioner shall take such pro23 grams into account when proposing regulations. Such indi24 viduals shall be appointed as follows: 


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1 (1) Five individuals to be appointed by the 

2 President. 

3 (2) Three individuals to be appointed by the 

4 majority leader of the Senate. 

5 (3) Two individuals to be appointed by the mi6 nority leader of the Senate. 

7 (4) Three individuals to be appointed by the 

8 Speaker of the House of Representatives. 

9 (5) Two individuals to be appointed by the mi10 nority leader of the House of Representatives. 

11 SEC. 9. GAO STUDY. 

12 Not later than 3 years after the date of enactment 

13 of this Act, the Comptroller General shall submit to Con14 gress a report on family and medical leave insurance bene15 fits paid under section 5 for any month during the 1-year 

16 period beginning on January 1, 2017. The report shall in17 clude the following: 

18 (1) An identification of the total number of ap19 plications for such benefits filed for any month dur20 ing such 1-year period, and the average number of 

21 days occurring in the period beginning on the date 

22 on which such an application is received and ending 

23 on the date on which the initial determination of eli24 gibility with respect to the application is made. 


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•S 786 IS

1 (2) An identification of the total number of re2 quests for review of an initial adverse determination 

3 of eligibility for such benefits made during such 1- 

4 year period, and the average number of days occur5 ring in the period beginning on the date on which 

6 such review is requested and ending on the date on 

7 which the final determination of eligibility with re8 spect to such review is made. 

9 (3) An identification of the total number of 

10 monthly benefit claim reports for such benefits filed 

11 during such 1-year period, and the average number 

12 of days occurring in the period beginning on the 

13 date on which such a claim report is received and 

14 ending on the date on which the initial determina15 tion of eligibility with respect to the claim report is 

16 made. 

17 (4) An identification of the total number of re18 quests for review of an initial adverse determination 

19 relating to a monthly benefit claim report for such 

20 benefits made during such 1-year period, and the av21 erage number of days occurring in the period begin22 ning on the date on which such review is requested 

23 and ending on the date on which the final deter24 mination of eligibility with respect to such review is 

25 made. 


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1 (5) An identification of any excessive delay in 

2 any of the periods described in paragraphs (1) 

3 through (4), and a description of the causes for such 

4 delay. 

Æ 


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