I 
117TH CONGRESS 
1ST SESSION H. R. 4248 
To amend the Employee Retirement Income Security Act of 1974 to include 
a voluntary option for qualified flexible workplace arrangements. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 30, 2021 
Mrs. MILLER-MEEKS (for herself, Ms. FOXX, Mrs. RODGERS of Washington, 
Mr. THOMPSON of Pennsylvania, and Mr. WALBERG) introduced the fol-
lowing bill; which was referred to the Committee on Education and Labor 
A BILL 
To amend the Employee Retirement Income Security Act 
of 1974 to include a voluntary option for qualified flexi-
ble workplace arrangements. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Workflex in the 21st 
Century Act’’. 
SEC. 2. QUALIFIED FLEXIBLE WORKPLACE ARRANGEMENT 
PLAN TREATED AS WELFARE PLAN. 
Section 3(1) of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1002(1)) is amended— 
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(1) by striking ‘‘or (B)’’ and inserting ‘‘(B)’’; 
and 
(2) by inserting before the period at the end the 
following: ‘‘, or (C) any qualified flexible workplace 
arrangement plan described in part 8 of subtitle B’’. 
SEC. 3. RELATIONSHIP TO OTHER LAWS. 
Section 514 of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1144) is amended by adding 
at the end the following: 
‘‘(f)(1) Subsection (a) shall apply with respect to any 
and all State laws insofar as they may now or hereafter 
relate to any qualified flexible workplace arrangement plan 
described in part 8, except that in the case of workflex 
options offered under such a plan— 
‘‘(A) except as provided in subparagraph (B), if 
only certain employees are eligible to enroll in a par-
ticular workflex option under the plan, such sub-
section shall apply with respect to any and all State 
laws insofar as they may now or hereafter relate to 
the particular workflex option solely with respect to 
those employees who are so eligible; and 
‘‘(B) in the case of a workflex option consisting 
of a biweekly work program or a compressed work 
schedule program, such subsection shall apply with 
respect to any and all State laws insofar as they 
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may now or hereafter relate to such workflex option 
solely with respect to those employees who enroll in 
such workflex option. 
‘‘(2) For purposes of paragraph (1)(B), a State over-
time law shall be considered to relate to any workflex op-
tion consisting of a biweekly work program or a com-
pressed work schedule program. 
‘‘(g) Subsection (d) shall not be construed to permit 
the application of any State law otherwise permitted under 
section 401(b) of the Family and Medical Leave Act of 
1993 (29 U.S.C. 2651(b)) that would impose require-
ments relating to a qualified flexible workplace arrange-
ment plan.’’. 
SEC. 4. REQUIREMENTS OF QUALIFIED FLEXIBLE WORK-
PLACE ARRANGEMENT PLAN. 
Subtitle B of title I of the Employee Retirement In-
come Security Act of 1974 (29 U.S.C. 1021 et seq.) is 
amended by adding at the end the following: 
‘‘PART 8—QUALIFIED FLEXIBLE WORKPLACE 
ARRANGEMENT PLANS 
‘‘SEC. 801. DEFINITION OF QUALIFIED FLEXIBLE WORK-
PLACE ARRANGEMENT PLAN. 
‘‘(a) IN GENERAL.—A qualified flexible workplace ar-
rangement plan is a plan that— 
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‘‘(1) subject to the requirements of this title, an 
employer administers in accordance with a written 
plan 
document, 
in 
accordance 
with 
section 
402(a)(1), which shall— 
‘‘(A) establish the requirements of the plan 
(which shall include requirements with respect 
to accrual of compensable leave, request and 
use of such leave, withdrawal from or termi-
nation of such a plan, determination of an em-
ployee’s service, and workflex options); and 
‘‘(B) as appropriate, incorporate the rights 
of employees to compensable leave and workflex 
options pursuant to one or more collective bar-
gaining agreements between the employer and 
the labor organization that has been certified or 
recognized as the representative of the employ-
ees under applicable law; and 
‘‘(2) provides— 
‘‘(A) compensable leave in accordance with 
section 802; and 
‘‘(B) workflex options in accordance with 
the requirements of section 803. 
‘‘(b) 
RELATIONSHIP
TO
EXECUTIVE
ORDER 
13706.—A qualified flexible workplace arrangement plan 
meeting all the requirements of this part shall be deemed 
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to satisfy the requirements established by Executive Order 
13706. 
‘‘(c) SUBSTANTIAL COMPLIANCE.—A plan shall not 
fail to be treated as a qualified flexible workplace arrange-
ment plan under this title so long as the plan substantially 
complies with the requirements of this part. 
‘‘(d) RULE OF CONSTRUCTION.—Nothing in this part 
shall be construed— 
‘‘(1) to relieve an employer that offers a quali-
fied flexible workplace arrangement plan from the 
requirements of this title that are otherwise applica-
ble to an employee welfare benefit plan, including 
the reporting and disclosure, fiduciary responsibility, 
and enforcement provisions of parts 1, 4, and 5 of 
this title; 
‘‘(2) to require an employer to adopt or main-
tain a qualified flexible workplace arrangement plan; 
or 
‘‘(3) in the case of an employer that has not 
adopted or is not maintaining such a plan, to require 
the employer to comply with any requirement under 
this part with respect to such a plan. 
‘‘SEC. 802. COMPENSABLE LEAVE REQUIREMENTS. 
‘‘(a) AMOUNT OF COMPENSABLE LEAVE.— 
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‘‘(1) IN GENERAL.—The minimum amount of 
compensable leave that shall be provided to an em-
ployee for each plan year under a qualified flexible 
workplace arrangement plan shall depend upon the 
size of the employer and an employee’s years of serv-
ice with the employer, and shall be not fewer than 
the minimum number of days as follows: 
‘‘Number of 
employees 
employed by 
an employer 
Minimum number of compensable days 
of leave per plan year 
Employees with 
5 or more years 
of service 
with the employer 
as of the 
beginning of the 
plan year: 
Employees with 
fewer than 
5 years of service 
with the employer 
as of the 
beginning of the 
plan year: 
1000 or more ..............
20 days 
16 days
250 to 999 ...................
18 days 
14 days
50 to 249 .....................
15 days 
13 days
less than 50 .................
14 days 
12 days. 
‘‘(2) MINIMUM REQUIREMENTS.— 
‘‘(A) IN GENERAL.—An employer that pro-
vides an unlimited number of compensable leave 
days per year to employees under a qualified 
flexible workplace arrangement plan shall be 
deemed to satisfy the amount of compensable 
leave required under paragraph (1), and noth-
ing in this section shall prohibit a qualified 
flexible workplace arrangement plan from pro-
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viding more than such minimum amount of 
compensable leave. 
‘‘(B) TREATMENT OF HOLIDAYS.—An em-
ployer that provides paid time off to employees 
for holidays recognized under Federal or State 
law may include up to 6 such paid holidays to-
wards satisfying the amount of compensable 
leave required under paragraph (1). 
‘‘(3) ACCRUAL PERMITTED.—A qualified flexi-
ble workplace arrangement plan of an employer 
shall— 
‘‘(A) provide all the compensable days of 
leave available to an employee for the plan year 
at the beginning of the plan year; or 
‘‘(B) provide that an employee’s compen-
sable leave for a plan year accrue during the 
plan year on a proportional basis in relation to 
the number of compensable days provided to 
such employee, and except as otherwise pro-
vided in subsection (b)(4), is available to an em-
ployee as the compensable leave accrues. 
‘‘(4) DETERMINING NUMBER OF EMPLOYEES.— 
‘‘(A) IN GENERAL.—The number of em-
ployees of an employer for a plan year shall be 
determined by calculating the average monthly 
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number of employees for the preceding plan 
year in accordance with subparagraph (B). 
‘‘(B) CALCULATION.—The average month-
ly number of employees for a plan year shall be 
calculated by adding the total number of 
monthly employees for each month of such pre-
ceding plan year and dividing by 12. 
‘‘(C) SERVICE
REQUIREMENT.—An indi-
vidual shall be considered an employee for a 
month if such individual is an employee on at 
least the first day and last day of the month. 
‘‘(5) YEARS OF SERVICE.—The determination 
of an employee’s years of service shall be made by 
the employer in a manner consistent with section 
203(b)(2), except that, upon adoption of a qualified 
flexible workplace arrangement plan, all employees’ 
prior years of service with the employer maintaining 
the plan shall be taken into account when calcu-
lating the employee’s years of service for the purpose 
of this subsection. 
‘‘(6) CARRYOVER.—An employer may permit 
employees to carry over unused compensable leave 
from one plan year to the subsequent plan year. 
‘‘(7) CASHOUT.—An employer may permit em-
ployees to cash out unused compensable leave after 
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‘‘(4) RESTRICTIONS REGARDING NEW EMPLOY-
EES PERMITTED.—In the case of a new employee, 
the employer may restrict the employee’s right to 
use compensable leave during the first 90 days of 
employment with the employer. 
‘‘(c) USE OF COMPENSABLE LEAVE.—In a qualified 
flexible workplace arrangement plan the employer may— 
‘‘(1) determine whether the use of compensable 
leave at the time requested by an employee would 
unduly disrupt the operations of the employer; and 
‘‘(2) determine whether an employee may use 
compensable leave in full-day or partial-day incre-
ments. 
‘‘SEC. 803. WORKFLEX OPTIONS. 
‘‘(a) WORKFLEX OPTIONS.— 
‘‘(1) IN GENERAL.—Under a qualified flexible 
workplace arrangement plan, an employer shall offer 
each employee meeting the requirements of para-
graph (2) at least one of the following workflex op-
tions: 
‘‘(A) A biweekly work program that meets 
the requirements of section 804. 
‘‘(B) A compressed work schedule program 
that meets the requirements of section 805. 
‘‘(C) A telework program. 
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‘‘(D) A job sharing program. 
‘‘(E) Flexible scheduling. 
‘‘(F) Predictable scheduling. 
‘‘(2) SERVICE REQUIREMENT.— 
‘‘(A) IN GENERAL.—For purposes of this 
section, an employee is eligible to participate in 
a workflex option if such employee— 
‘‘(i) has been employed for at least 12 
months by the employer and for at least 
1,000 hours of service with such employer 
during such 12-month period, determined 
by the employer to mean— 
‘‘(I) the calendar year; or 
‘‘(II) any fixed 12-month plan 
year; or 
‘‘(ii) meets eligibility requirements of 
the plan that otherwise permit participa-
tion prior to the date described in clause 
(i). 
‘‘(B) HOURS OF SERVICE.—For the pur-
poses of this paragraph, the determination of 
an employee’s hours of service shall be made in 
a manner consistent with section 202(a)(3)(C), 
except that the number of such hours may be 
estimated by the employer. 
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‘‘(3) EMPLOYMENT
POSITIONS.—A qualified 
flexible workplace arrangement plan may specify 
which employment position or positions are offered 
participation in a particular workflex option de-
scribed in paragraph (1). 
‘‘(4) 
CLARIFICATION.—A 
qualified 
flexible 
workplace arrangement plan shall not be required to 
offer an employee more than one workflex option 
without regard to whether another employee is of-
fered more than one workflex option. 
‘‘(b) CONDITIONS.—A qualified flexible workplace ar-
rangement plan shall offer a workflex option under sub-
section (a) to employees pursuant to the following: 
‘‘(1) VOLUNTARY PARTICIPATION.— 
‘‘(A) IN GENERAL.—Except as provided in 
subparagraph (B)(i), an employee’s participa-
tion in any workflex option offered under a 
qualified flexible workplace arrangement plan 
shall be voluntary and the acceptance of a 
workflex option may not be a condition of em-
ployment. 
‘‘(B) AGREEMENT OR UNDERSTANDING.— 
A workflex option shall be carried out pursuant 
to— 
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‘‘(i) applicable provisions of one or 
more agreements described in section 
801(a)(1)(B); or 
‘‘(ii) in the case of an employee who 
is not subject to an agreement referred to 
in clause (i), a written agreement— 
‘‘(I) setting forth the employee’s 
work schedule; 
‘‘(II) including a description of 
the workflex option in which the em-
ployee is participating; 
‘‘(III) executed before the em-
ployee begins to participate in such 
workflex option; and 
‘‘(IV) entered into knowingly and 
voluntarily by such employee. 
‘‘(2) TERMINATION, MODIFICATION, OR WITH-
DRAWAL.— 
‘‘(A) TERMINATION
OR
MODIFICATION.— 
Subject to section 803(a)(1), an employer may 
amend a qualified flexible workplace arrange-
ment to eliminate— 
‘‘(i) any workflex option described in 
subsection (a)(1); or 
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‘‘(ii) the eligibility of an employee or 
group of employees to participate in a 
workflex option after the employer has pro-
vided 30-day written notice. 
‘‘(B) WITHDRAWAL.—An employee may 
withdraw from a workflex option offered under 
a qualified flexible workplace arrangement plan 
at any time, except as otherwise specified for a 
biweekly work program under section 804(e)(2) 
or a compressed work schedule program under 
section 805(d)(2). 
‘‘(3) 
RECORDKEEPING
REQUIREMENT.—The 
employer shall maintain— 
‘‘(A) written descriptions of workflex op-
tion offerings made available to employees; and 
‘‘(B) written agreements described in para-
graph (1)(B)(ii). 
‘‘SEC. 804. BIWEEKLY WORK PROGRAM. 
‘‘(a) IN GENERAL.—Notwithstanding any other pro-
vision of law, as part of a qualified flexible workplace ar-
rangement plan, an employer may establish a biweekly 
work program as a workflex option for eligible employees 
that allows the use of a biweekly work schedule— 
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‘‘(1) that consists of a basic work requirement 
of not more than 80 hours, over one 2-week period; 
and 
‘‘(2) in which more than 40 hours but not more 
than 60 hours of the work requirement may occur 
in a week of the 2-week period. 
‘‘(b) CONDITIONS.—A biweekly work program shall 
meet the conditions described in section 803(b). 
‘‘(c) ELIGIBLE EMPLOYEE.—For purposes of this 
section, an ‘eligible employee’ means an employee who is 
subject to the minimum wage and overtime requirements 
of sections 6 and 7 of the Fair Labor Standards Act of 
1938 (29 U.S.C. 206; 207). 
‘‘(d) COMPENSATION FOR HOURS IN SCHEDULE.— 
In the case of an eligible employee participating in a bi-
weekly work program— 
‘‘(1) the eligible employee shall be compensated 
for each hour in such biweekly work schedule at a 
rate not less than the regular rate at which the eligi-
ble employee is employed; 
‘‘(2) any hour worked in excess of such a bi-
weekly work schedule for a week of the 2-week pe-
riod, or in excess of 80 hours in the 2-week period, 
shall be overtime hours; and 
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‘‘(3) the eligible employee shall be compensated 
for each such overtime hour at a rate not less than 
one and one-half times the regular rate at which the 
eligible employee is employed, in accordance with 
section 7(a)(1) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 207(a)(1)). 
‘‘(e) DISCONTINUANCE
OF
PROGRAM
OR
WITH-
DRAWAL.— 
‘‘(1) DISCONTINUANCE OF PROGRAM.—An em-
ployer who has established a biweekly work program 
under subsection (a) may discontinue the program, 
after providing 30 days written notice to the eligible 
employees who are subject to the employer’s agree-
ment 
or 
understanding 
described 
in 
section 
803(b)(1)(B). 
‘‘(2) WITHDRAWAL.— 
‘‘(A) IN GENERAL.—An eligible employee 
may withdraw from an agreement or under-
standing described in section 803(b)(1)(B), 
with respect to a biweekly work program estab-
lished under subsection (a), by submitting a 
written notice of withdrawal to the employer. 
‘‘(B) EFFECTIVE
DATE.—Not later than 
30 calendar days after receiving an eligible em-
ployee’s written notice of withdrawal, an em-
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ployer shall restore the employee to one of the 
employer’s regular schedules. 
‘‘SEC. 805. COMPRESSED WORK SCHEDULE PROGRAM. 
‘‘(a) IN GENERAL.—Notwithstanding any other pro-
vision of law, as part of a qualified flexible workplace ar-
rangement plan, an employer may establish a compressed 
work schedule program as a workflex option for employees 
that allows the employee to work the equivalent of full- 
time employment by increasing the number of daily hours 
worked, such as a four-day workweek. 
‘‘(b) CONDITIONS.—A compressed work schedule pro-
gram shall meet the conditions described in section 
803(b). 
‘‘(c) COMPENSATION FOR HOURS IN COMPRESSED 
WORK SCHEDULE.—In the case of an employee who is 
participating in a compressed work schedule program and 
who is subject to the minimum wage and overtime require-
ments of sections 6 and 7 of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 206; 207)— 
‘‘(1) the employee shall be compensated for 
each hour in such 40-hour compressed work sched-
ule at a rate not less than the regular rate at which 
the employee is employed; and 
‘‘(2) the employee shall be compensated for 
each overtime hour at a rate not less than one and 
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one-half times the regular rate at which the em-
ployee is employed, in accordance with section 
7(a)(1) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 207(a)(1)). 
‘‘(d) DISCONTINUANCE
OF PROGRAM
OR WITH-
DRAWAL.— 
‘‘(1) DISCONTINUANCE OF PROGRAM.—An em-
ployer who has established a compressed work sched-
ule program under subsection (a) may discontinue 
the program after providing 30 days written notice 
to the employees who are subject to an agreement or 
understanding described in section 803(b)(1)(B). 
‘‘(2) WITHDRAWAL.— 
‘‘(A) IN
GENERAL.—An employee may 
withdraw from an agreement or understanding 
described in section 803(b)(1)(B), with respect 
to a compressed work schedule program estab-
lished under subsection (a), by submitting a 
written notice of withdrawal to the employer. 
‘‘(B) EFFECTIVE
DATE.—Not later than 
30 calendar days after receiving a written no-
tice of withdrawal, an employer shall restore the 
employee to one of the employer’s regular 
schedules. 
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‘‘SEC. 806. RELATIONSHIP TO FAMILY AND MEDICAL LEAVE 
ACT. 
‘‘Consistent with section 102(d)(2)(A) of the Family 
and 
Medical 
Leave 
Act 
of 
1993 
(29 
U.S.C. 
2612(d)(2)(A)), an employee may elect, or an employer 
may require the employee, to substitute compensable leave 
for leave provided under subparagraph (A), (B), (C), or 
(E) of section 102(a)(1) of the Family and Medical Leave 
Act (29 U.S.C. 2612(a)(1)) for any part of the 12-week 
period of such leave under such section. 
‘‘SEC. 807. REINSTATEMENT RIGHTS. 
‘‘(a) IN GENERAL.—Except as provided in sub-
sections (b) and (c), an employee who uses compensable 
leave under a qualified flexible workplace arrangement 
plan shall be entitled— 
‘‘(1) to be restored to the position of employ-
ment held by the employee when the leave com-
menced; or 
‘‘(2) to be restored to an employment position 
equivalent to the employment position described in 
paragraph (1), with equivalent employment benefits, 
pay, and other terms and conditions of employment. 
‘‘(b) LIMITATIONS.—An employee shall be entitled to 
such reinstatement after using compensable leave even if 
the employee has been replaced or the employee’s employ-
ment position has been restructured to accommodate the 
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employee’s absence, except that the reinstatement rights 
shall not apply— 
‘‘(1) to an employee who uses more than 12 
workweeks of compensable leave during a 12-month 
period; or 
‘‘(2) to an affected employee, as defined under 
section 104(b)(2) of the Family and Medical Leave 
Act (29 U.S.C. 2614(b)(2)). 
‘‘(c) REINSTATEMENT OF LEAVE.—In the case of an 
employee who is rehired following termination of employ-
ment, any compensable leave that has not been used prior 
to such termination may be reinstated by the employer. 
‘‘SEC. 808. RELATIONSHIP TO AMERICANS WITH DISABIL-
ITIES ACT AND THE REHABILITATION ACT OF 
1973. 
‘‘Nothing in this part shall be construed to modify 
or relieve an employer from any obligation imposed by the 
Americans with Disabilities Act (42 U.S.C. 12111 et seq.) 
and the Rehabilitation Act of 1973 (29 U.S.C. 791 et 
seq.). 
‘‘SEC. 809. EDUCATION AND TECHNICAL ASSISTANCE; LIMI-
TATION ON RULES. 
‘‘(a) EDUCATION AND TECHNICAL ASSISTANCE.— 
The Secretary shall provide education and technical assist-
ance to employers and employees with regard to qualified 
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flexible workplace arrangement plans, and shall maintain 
an electronic database available online consisting of exam-
ples of workflex options. 
‘‘(b) LIMITATION ON RULES.— 
‘‘(1) IN
GENERAL.—No regulation or other 
guidance issued by the Secretary to carry out this 
part may result in new restrictions with respect to 
the establishment or administration of a qualified 
flexible workplace arrangement plan under section 
801. 
‘‘(2) INVALIDATION.—Any rule or regulation 
issued in contravention of paragraph (1) shall have 
no force or effect. 
‘‘SEC. 810. DEFINITIONS AND OTHER SPECIAL RULES. 
‘‘For purposes of this part: 
‘‘(1) COMPENSABLE LEAVE.—The term ‘com-
pensable leave’ means paid leave to be used for— 
‘‘(A) paid time off, sick leave, personal 
leave, or vacation, the use of which is subject to 
the terms of a qualified flexible work arrange-
ment plan; and 
‘‘(B) paid holidays provided in accordance 
with section 802(a)(2)(B). 
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‘‘(2) WORKFLEX OPTION.—The term ‘workflex 
option’ means any of the programs described in sec-
tion 803(a)(1). 
‘‘(3) EMPLOYER.—For purposes of determining 
whether an employer is maintaining a qualified flexi-
ble workplace arrangement plan, sections 210(c) and 
210(d) shall apply. 
‘‘(4) JOB SHARING PROGRAM.—The term ‘job 
sharing program’ means an arrangement under 
which an employer approves the sharing of one em-
ployment position amongst two or more employees. 
‘‘(5) PLAN YEAR.—The term ‘plan year’ means 
any 365-day period designated in a qualified flexible 
workplace arrangement plan. 
‘‘(6) FLEXIBLE SCHEDULING.—The term ‘flexi-
ble scheduling’ means an arrangement under which 
an employee’s regular work schedule is altered. 
‘‘(7) PREDICTABLE
SCHEDULING.—The term 
‘predictable scheduling’ means an arrangement 
under which an employer provides a work schedule 
to an employee— 
‘‘(A) with reasonable advanced notice; and 
‘‘(B) that is subject to as few alterations 
as are reasonably possible. 
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‘‘(8) 
TELEWORK
PROGRAM.—The 
term 
‘telework program’ means an arrangement under 
which an employee performs the duties and respon-
sibilities of such employee’s employment position, 
and other activities authorized by the employer, from 
a worksite approved by the employer other than the 
location from which the employee would otherwise 
work.’’. 
Æ 
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