II 117th CONGRESS 1st Session S. 2390 IN THE SENATE OF THE UNITED STATES July 20, 2021 Ms. Duckworth (for herself, Mrs. Gillibrand , Mr. Blumenthal , and Ms. Baldwin ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To allow Americans to receive paid leave time to process and address their own health needs and the health needs of their partners during the period following a pregnancy loss, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, a failed adoption arrangement, a failed surrogacy arrangement, or a diagnosis or event that impacts pregnancy or fertility, to support related research and education, and for other purposes.

1. Short title This Act may be cited as the Support Through Loss Act . 2. Purposes The purposes of this Act are— (1) to allow individuals in the United States to receive supplementary paid leave time to process and address their own health needs and the health needs of their partners during the period following a pregnancy loss, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, a failed adoption arrangement, a failed surrogacy arrangement, or a diagnosis or event that impacts pregnancy or fertility; and (2) to support related research or education. I Paid leave following a pregnancy loss 101. Definitions In this title: (1) Assisted reproductive technology procedure The term assisted reproductive technology procedure has the meaning given the term assisted reproductive technology in section 8 of the Fertility Clinic Success Rate and Certification Act of 1992 ( 42 U.S.C. 263a–7 ). (2) Domestic partner The term domestic partner , used with respect to an unmarried employee, includes— (A) the person recognized as the domestic partner of the employee under any domestic partnership or civil union law of a State or political subdivision of a State; and (B) an unmarried, adult person who is in a committed, personal relationship with the employee, who is not a domestic partner as described in subparagraph (A) to or in such a relationship with any other person, and who is designated to the employee’s employer by such employee as that employee’s domestic partner. (3) Employee The term employee means an individual who is— (A) (i) an employee, as defined in section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ), who is not covered under subparagraph (E), except that a reference in such section to an employer shall be considered to be a reference to an employer described in clauses (i)(I) and (ii) of paragraph (4)(A); or (ii) an employee of the Government Accountability Office; (B) a State employee described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a)); (C) a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 ), other than an applicant for employment; (D) a covered employee, as defined in section 411(c) of title 3, United States Code, other than an applicant for employment; or (E) a Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code. (4) Employer (A) In general The term employer means a person who is— (i) (I) a covered employer, as defined in subparagraph (B), who is not covered under subclause (V); (II) an entity employing a State employee described in section 304(a) of the Government Employee Rights Act of 1991; (III) an employing office, as defined in section 101 of the Congressional Accountability Act of 1995; (IV) an employing office, as defined in section 411(c) of title 3, United States Code; or (V) an employing agency covered under subchapter V of chapter 63 of title 5, United States Code; and (ii) engaged in commerce (including government), or an industry or activity affecting commerce (including government), as defined in subparagraph (B)(iii). (B) Covered employer (i) In general In subparagraph (A)(i)(I), the term covered employer — (I) means any person engaged in commerce or in any industry or activity affecting commerce who employs 5 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding year; (II) includes— (aa) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and (bb) any successor in interest of an employer; (III) includes any public agency , as defined in section 3(x) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(x) ); and (IV) includes the Government Accountability Office. (ii) Public agency For purposes of clause (i)(III), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce. (iii) Definitions For purposes of this subparagraph: (I) Commerce The terms commerce and industry or activity affecting commerce mean any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and include commerce and any industry affecting commerce , as defined in paragraphs (1) and (3) of section 501 of the Labor Management Relations Act, 1947 (29 U.S.C. 142 (1) and (3)). (II) Employee The term employee has the same meaning given such term in section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ). (III) Person The term person has the same meaning given such term in section 3(a) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(a) ). (C) Predecessors Any reference in this paragraph to an employer shall include a reference to any predecessor of such employer. (5) Employment benefits The term employment benefits means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an employee benefit plan , as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1002(3) ). (6) Paid leave time The term paid leave time means an increment of compensated leave that can be granted to an employee for use during an absence from employment for any reason described in section 102(b). (7) Secretary The term Secretary means the Secretary of Labor. (8) Spouse The term spouse , with respect to an employee, has the meaning given such term by the marriage laws of the State in which the marriage was celebrated. (9) State The term State has the meaning given the term in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). (10) Unpaid leave time The term unpaid leave time means the leave granted and used in the same manner and under the same conditions as paid leave time for the purposes of this title, except that no compensation shall be paid. 102. Paid leave time (a) Granting leave time (1) In general An employer shall grant to each employee employed by the employer, 24 hours of paid leave time on the employee's first workday of each calendar year. The employee shall use the paid leave time as needed during that calendar year for reasons described in subsection (b). (2) Carryover Paid leave time granted under this section shall not carry over from 1 year to the next. (3) Employers with existing policies Any employer with a paid leave policy who makes available an amount of paid leave that is sufficient to meet the requirements of this section and that is made available for all stated reasons and under all stated conditions that are the same as the reasons and conditions outlined in subsection (b) shall not be required to grant an employee additional paid leave time under this section. (4) Construction Nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement, or other separation from employment for granted paid leave time that has not been used. (5) Prohibition An employer may not require, as a condition of providing paid leave time under this title, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid leave time. (b) Uses Paid leave time granted under this section may be used by an employee for either of the following: (1) An absence resulting from— (A) a pregnancy loss; (B) an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure; (C) a failed adoption match or an adoption that is not finalized because it is contested by another party; (D) a failed surrogacy arrangement; or (E) a diagnosis or event that impacts pregnancy or fertility. (2) An absence to care for a spouse or domestic partner who experiences a circumstance described in paragraph (1). (c) Procedures Paid leave time shall be provided upon the oral or written request of an employee. Such request shall— (1) include the expected duration of the period of such time; and (2) be provided as soon as practicable after the employee is aware of the need for such period. 103. Notice requirement (a) In general Each employer shall notify each employee and include in any employee handbook the information described in paragraphs (1) through (3). Each employer shall post and keep posted a notice, to be prepared or approved in accordance with procedures specified in regulations prescribed under section 110, setting forth excerpts from, or summaries of, the pertinent provisions of this title including— (1) information describing paid leave time available to employees under this title; (2) information pertaining to the filing of an action under this title; and (3) information that describes— (A) the protections that an employee has in exercising rights under this title; and (B) how the employee can contact the Secretary (or other appropriate authority as described in section 105) if any of the rights are violated. (b) Location The notice described under subsection (a) shall be posted— (1) in conspicuous places on the premises of the employer, where notices to employees (including applicants) are customarily posted; or (2) in employee handbooks. (c) Violation; penalty Any employer who willfully violates the posting requirements of this section shall be subject to a civil fine in an amount not to exceed $100 for each separate offense. 104. Prohibited acts (a) Interference with rights (1) Exercise of rights It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this title, including— (A) discharging or discriminating against (including retaliating against) any individual, including a job applicant, for exercising, or attempting to exercise, any right provided under this title; (B) using the taking of paid leave time or unpaid leave time under this title as a negative factor in an employment action, such as hiring, promotion, reducing hours or number of shifts, or a disciplinary action; or (C) counting the paid leave time or unpaid leave time under a no-fault attendance policy or any other absence control policy. (2) Discrimination It shall be unlawful for any employer to discharge or in any other manner discriminate against (including retaliating against) any individual, including a job applicant, for opposing any practice made unlawful by this title. (b) Interference with proceedings or inquiries It shall be unlawful for any person to discharge or in any other manner discriminate against (including retaliating against) any individual, including a job applicant, because such individual— (1) has filed an action, or has instituted or caused to be instituted any proceeding, under or related to this title; (2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this title; or (3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this title. (c) Construction Nothing in this section shall be construed to state or imply that the scope of the activities prohibited by section 105 of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2615 ) or the Civil Rights Act of 1964 ( 42 U.S.C. 2000a et seq. ) is less than the scope of the activities prohibited by this section or is otherwise altered by the activities prohibited by this section. 105. Enforcement authority (a) In general (1) Definition In this subsection— (A) the term employee means an employee described in subparagraph (A) or (B) of section 101(3); and (B) the term employer means an employer described in subclause (I) or (II) of section 101(4)(A)(i). (2) Investigative authority (A) In general To ensure compliance with the provisions of this title, or any regulation or order issued under this title, the Secretary shall have, subject to subparagraph (C), the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(a) ), with respect to employers, employees, and other individuals affected. (B) Obligation to keep and preserve records An employer shall make, keep, and preserve records pertaining to compliance with this title in accordance with section 11(c) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(c) ) and in accordance with regulations prescribed by the Secretary. (C) Required submissions generally limited to an annual basis The Secretary shall not require, under the authority of this paragraph, an employer to submit to the Secretary any books or records more than once during any 12-month period, unless the Secretary has reasonable cause to believe there may exist a violation of this title or any regulation or order issued pursuant to this title, or is investigating a charge pursuant to paragraph (4). (D) Subpoena authority For the purposes of any investigation provided for in this paragraph, the Secretary shall have the subpoena authority provided for under section 9 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 209 ). (3) Civil action by employees or individuals (A) Right of action An action to recover the damages or equitable relief prescribed in subparagraph (B) may be maintained against any employer in any Federal or State court of competent jurisdiction by one or more employees or individuals or their representative for and on behalf of— (i) the employees or individuals; or (ii) the employees or individuals and others similarly situated. (B) Liability Any employer who violates section 104 (including a violation relating to rights provided under section 102) shall be liable to any employee or individual affected— (i) for damages equal to— (I) the amount of— (aa) any wages, salary, employment benefits, or other compensation denied or lost by reason of the violation; or (bb) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost, any actual monetary losses sustained as a direct result of the violation up to a sum equal to 24 hours of wages or salary for the employee or individual; (II) the interest on the amount described in subclause (I) calculated at the prevailing rate; and (III) an additional amount as liquidated damages; and (ii) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. (C) Fees and costs The court in an action under this paragraph shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. (4) Action by the Secretary (A) Administrative action The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 104 (including a violation relating to rights provided under section 102) in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207). (B) Civil action The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in paragraph (3)(B)(i). (C) Sums recovered Any sums recovered by the Secretary pursuant to subparagraph (B) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each employee or individual affected. Any such sums not paid to an employee or individual affected because of inability to do so within a period of 3 years shall be deposited into the Treasury of the United States as miscellaneous receipts. (5) Limitation (A) In general Except as provided in subparagraph (B), an action may be brought under paragraph (3), (4), or (6) not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought. (B) Willful violation In the case of an action brought for a willful violation of section 104 (including a willful violation relating to rights provided under section 102), such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought. (C) Commencement In determining when an action is commenced under paragraph (3), (4), or (6) for the purposes of this paragraph, it shall be considered to be commenced on the date when the complaint is filed. (6) Action for injunction by Secretary The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary— (A) to restrain violations of section 104 (including a violation relating to rights provided under section 102), including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to employees or individuals eligible under this title; or (B) to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion. (7) Solicitor of Labor The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under paragraph (4) or (6). (8) Government Accountability Office Notwithstanding any other provision of this subsection, in the case of the Government Accountability Office, the authority of the Secretary of Labor under this subsection shall be exercised by the Comptroller General of the United States. (b) Employees covered by Congressional Accountability Act of 1995 The powers, remedies, and procedures provided in the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 et seq. ) to the Board (as defined in section 101 of that Act ( 2 U.S.C. 1301 )), or any person, alleging a violation of section 202(a)(1) of that Act ( 2 U.S.C. 1312(a)(1) ) shall be the powers, remedies, and procedures this title provides to that Board, or any person, alleging an unlawful employment practice in violation of this title against an employee described in section 101(3)(C). (c) Employees covered by chapter 5 of title 3 , United States Code The powers, remedies, and procedures provided in chapter 5 of title 3, United States Code, to the President, the Merit Systems Protection Board, or any person, alleging a violation of section 412(a)(1) of that title, shall be the powers, remedies, and procedures this title provides to the President, that Board, or any person, respectively, alleging an unlawful employment practice in violation of this title against an employee described in section 101(3)(D). (d) Employees covered by chapter 63 of title 5, United States Code The powers, remedies, and procedures provided in title 5, United States Code, to an employing agency, provided in chapter 12 of that title to the Merit Systems Protection Board, or provided in that title to any person, alleging a violation of chapter 63 of that title, shall be the powers, remedies, and procedures this title provides to that agency, that Board, or any person, respectively, alleging an unlawful employment practice in violation of this title against an employee described in section 101(3)(E). (e) Remedies for State employees (1) Waiver of sovereign immunity A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution or otherwise, to a suit brought by an employee of that program or activity under this title for equitable, legal, or other relief authorized under this title. (2) Official capacity An official of a State may be sued in the official capacity of the official by any employee who has complied with the procedures under subsection (a)(3), for injunctive relief that is authorized under this title. In such a suit the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes ( 42 U.S.C. 1988 ). (3) Applicability With respect to a particular program or activity, paragraph (1) applies to conduct occurring on or after the day, after the date of enactment of this title, on which a State first receives or uses Federal financial assistance for that program or activity. (4) Definition of program or activity In this subsection, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d–4a ). 106. Authorization of appropriations for education and outreach There is authorized to be appropriated to the Secretary of Labor such sums as may be necessary in order that the Secretary may conduct a public awareness campaign to educate and inform the public of the requirements for paid leave time required by this title. 107. Effect on other laws (a) Federal and State antidiscrimination laws Nothing in this title shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability. (b) Federal, State, and local laws Nothing in this title shall be construed to supersede (including preempting) any provision of any Federal, State, or local law that provides greater paid or unpaid family or medical leave rights than the rights established under this title. 108. Effect on existing employment benefits (a) More protective Nothing in this title shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater paid leave or other leave rights to employees or individuals than the rights established under this title. (b) Less protective The rights established for employees under this title shall not be diminished by any contract, collective bargaining agreement, or any employment benefit program or plan. 109. Encouragement of more generous leave policies Nothing in this title shall be construed to discourage employers from adopting or retaining leave policies more generous than policies that comply with the requirements of this title. 110. Regulations (a) In general (1) Authority Except as provided in paragraph (2), not later than 180 days after the date of enactment of this title, the Secretary shall prescribe such regulations as are necessary to carry out this title with respect to employees described in subparagraph (A) or (B) of section 101(3) and other individuals affected by employers described in subclause (I) or (II) of section 101(4)(A)(i). (2) Government Accountability Office The Comptroller General of the United States shall prescribe the regulations with respect to employees of the Government Accountability Office and the Library of Congress, respectively, and other individuals affected by the Comptroller General of the United States. (b) Employees covered by Congressional Accountability Act of 1995 (1) Authority Not later than 90 days after the Secretary prescribes regulations under subsection (a), the Board of Directors of the Office of Compliance shall prescribe (in accordance with section 304 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1384 )) such regulations as are necessary to carry out this title with respect to employees described in section 101(3)(C) and other individuals affected by employers described in section 101(4)(A)(i)(III). (2) Agency regulations The regulations prescribed under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary to carry out this title except insofar as the Board may determine, for good cause shown and stated together with the regulations prescribed under paragraph (1), that a modification of such regulations would be more effective for the implementation of the rights and protections involved under this section. (c) Employees covered by chapter 5 of title 3 , United States Code (1) Authority Not later than 90 days after the Secretary prescribes regulations under subsection (a), the President (or the designee of the President) shall prescribe such regulations as are necessary to carry out this title with respect to employees described in section 101(3)(D) and other individuals affected by employers described in section 101(4)(A)(i)(IV). (2) Agency regulations The regulations prescribed under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary to carry out this title except insofar as the President (or designee) may determine, for good cause shown and stated together with the regulations prescribed under paragraph (1), that a modification of such regulations would be more effective for the implementation of the rights and protections involved under this section. (d) Employees covered by chapter 63 of title 5 , United States Code (1) Authority Not later than 90 days after the Secretary prescribes regulations under subsection (a), the Director of the Office of Personnel Management shall prescribe such regulations as are necessary to carry out this title with respect to employees described in section 101(3)(E) and other individuals affected by employers described in section 101(4)(A)(i)(V). (2) Agency regulations The regulations prescribed under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary to carry out this title except insofar as the Director may determine, for good cause shown and stated together with the regulations prescribed under paragraph (1), that a modification of such regulations would be more effective for the implementation of the rights and protections involved under this section. 111. Effective dates (a) Effective date This title, other than section 110, shall take effect 6 months after the date of issuance of regulations under section 110(a)(1). (b) Collective bargaining agreements In the case of a collective bargaining agreement in effect on the effective date prescribed by subsection (a), this title shall take effect on the earlier of— (1) the date of the termination of such agreement; or (2) the date that occurs 18 months after the date of issuance of regulations under section 110(a)(1). II Research and education 201. Pregnancy loss public education program (a) In general The Secretary of Health and Human Services, acting through the Director of the Centers for Disease Control and Prevention, shall develop and disseminate to the public information regarding pregnancy loss, including information on— (1) awareness of pregnancy loss, and the incidence and prevalence of pregnancy loss among pregnant people; and (2) the accessibility of the range of evidence-based treatment options, as medically appropriate, for pregnancy loss, including miscarriage and recurrent miscarriage, including comprehensive mental health supports, necessary procedures and medications, and culturally responsive supports including pregnancy-loss doula care. (b) Dissemination of information In carrying out subsection (a), the Secretary may disseminate information to the public directly or through arrangements with agencies carrying out intra-agency initiatives, nonprofit organizations, consumer groups, community organizations, institutions of higher education (as defined in section 101 of the Higher Education Act of 1965 ( 20 U.S.C. 1001 )), or Federal, State, or local public-private partnerships. (c) Authorization of appropriations There is authorized to be appropriated to carry out this section such sums as may be necessary for each of fiscal years 2022 through 2025. 202. Research with respect to pregnancy loss (a) In general The Director of the National Institutes of Health (in this section referred to as the Director of NIH ) shall expand and coordinate programs for conducting and supporting evidence-based research with respect to causes of and current and novel treatment options and procedures for pregnancy loss. (b) Administration and coordination The Director of NIH, acting through the Director of the Office of Research on Women’s Health, shall carry out evidence-based research conducted pursuant to subsection (a), in coordination with the appropriate institutes, offices, and centers of the National Institutes of Health, including the National Institute of Child Health and Human Development, the National Institute of Environmental Health Sciences, the National Institute of Mental Health, and the Office on Women’s Health of the Department of Health and Human Services. (c) Authorization of appropriations There is authorized to be appropriated to carry out this section $45,000,000 for each of fiscal years 2022 through 2025. 203. Education and dissemination of information to perinatal health care workers with respect to pregnancy loss (a) In general The Secretary of Health and Human Services, acting through the Administrator of the Health Resources and Services Administration and the Director of the Agency for Healthcare Research and Quality shall, in consultation with and in accordance with guidelines from relevant medical societies, develop and disseminate to perinatal health care workers, including midwives, physician assistants, nurse practitioners, clinical nurse specialists, and non-clinical perinatal health care workers, information on pregnancy loss for the purpose of ensuring that such perinatal health care workers remain informed about current information (as of the date of dissemination) regarding pregnancy loss, including miscarriage and recurrent miscarriage, and prioritizing both the physical and mental health care of the patient. (b) Perinatal health care worker For purposes of this section, the term perinatal health care worker includes any doula, community health worker, peer supporter, breastfeeding and lactation educator or counselor, nutritionist or dietitian, childbirth educator, social worker, home visitor, language interpreter, or navigator. 204. Data collection regarding pregnancy loss The Secretary of Health and Human Services shall, in an manner that protects personal privacy, collect and assess data regarding pregnancy loss, including information (disaggregated by race, ethnicity, health insurance status, disability, income level, and geography) on the prevalence of, the incidence of, and knowledge about pregnancy loss.