Provisions Related to Universal Paid Family and Medical Leave Developed by the House Committee on Ways and Means in Response to Reconciliation Directives
September 13, 2021
Provisions Related to Universal Paid Family and Medical Leave
Developed by the House Committee on Ways and Means in
Response to Reconciliation Directives
The reconciliation language developed by the House Ways
The reconciliation language defines the term qualified
and Means Committee in response to reconciliation
family member, with respect to the claimant, as a spouse
directives included in S.Con.Res. 14 includes provisions
(including a domestic partner) and a spouse’s parent; a
related to universal paid family and medical leave. The
child and a child’s spouse; a parent and a parent’s spouse; a
reconciliation language, often referred to as the Build Back
sibling and a sibling’s spouse; a grandparent, a grandchild,
Better Act, proposes a new federal cash benefit for eligible
or a spouse of a grandparent or grandchild; and any other
individuals engaged in certain types of family and medical
individual who is related by blood or affinity and whose
caregiving (including self-care). The reconciliation
association with the individual is equivalent of a family
language would amend the Social Security Act (42 U.S.C.
relationship (as determined under regulations issued by the
301 et seq.) by adding Title XXII: Paid Family and Medical
Secretary of the Treasury).
Leave Benefits.
The reconciliation language uses terms, as established
Qualified Caregiving
under the FMLA, to define certain qualified caregiving
The proposed cash benefits would be payable—no sooner
activities. Under FMLA a serious health condition is one
than July 2023—to eligible individuals engaged in qualified
that requires inpatient care or continuing treatment by a
caregiving for at least four hours in a week. Qualified
health care provider. A covered active duty for a regular
caregiving is defined as an unpaid activity engaged in by an
Armed Forces member means duty “during the deployment
individual in lieu of work that would qualify as a reason for
of the member with the Armed Forces to a foreign
leave under the Family and Medical Leave Act (FMLA,
country.” For reserve components, it refers to duty during
P.L. 103-3, as amended), except that the reconciliation
the “deployment of the member with the Armed Forces to a
language would permit individuals to care for a wider group
foreign country under a Federal call or order to active duty
of close family members than does the FMLA. Also, the
in support of a contingency operation.” A covered
reconciliation language would permit individuals to use a
servicemember, in general, is a current member of the
limited number of caregiving hours for bereavement (in
Armed Forces or a recent veteran (released under
general, 24 hours, per death, in a benefit year for a full-time
conditions other than dishonorable) who has a serious
worker), which is not an FMLA-protected use of leave
injury or illness that was sustained or aggravated in the line
under current law.
of duty while on active duty and for which the
servicemember is undergoing medical treatment,
Activities Included Under Qualified Caregiving
recuperation, or therapy; is otherwise in outpatient status; or
In particular, the proposed benefits may be claimed by
is otherwise on the temporary disability retired list.
eligible individuals for the following:
Benefit Duration and Amount
the birth and care of the individual’s child, within 12
Benefits would be paid on a monthly basis for up to a
months of the child’s birth;
maximum of 12 workweeks of qualified caregiving in a
benefit period (generally a 12-month period), although paid
the placement of an adopted or fostered child with the
monthly benefits would be calculated on a weekly basis.
individual, within 12 months of the child’s placement;
The monthly benefit would be equal to the sum of the
to care for a qualified family member with a serious
weekly benefit amounts for the weeks ending in that month.
health condition;
Benefits would be payable after the individual’s waiting
period, defined as the first week during an individual’s
the individual’s own serious health condition if the
benefit period in which at least four caregiving hours occur.
individual is unable to perform the essential functions of
his or her job;
Initial Weekly Benefit Rate Formula
qualified military exigencies arising from the fact that a
The weekly benefit amount would be equal to the product
qualified family member is on covered active duty;
of the weekly benefit rate multiplied by the ratio of number
of creditable caregiving hours in the week to number of
to care for a qualified family member who is a covered
hours in the regular workweek [i.e., weekly benefit rate x
servicemember with a serious injury or illness ; and
(hours of caregiving/ hours in regular workweek)].
the death of a spouse, parent, or child of the individual.
Creditable caregiving hours may not exceed the number of
hours in an individual’s regular workweek.
https://crsreports.congress.gov
Provisions Related to Universal Paid Family and Medical Leave Developed by the House Commit tee on Ways and Means in
Response to Reconciliation Directives
For July 2023 through December 2024, the week ly benefit
Administration
rate would be the sum of:
Benefits would be administered by the Secretary of the
Treasury. States that had enacted state leave insurance
85% x (the first $290.00 of average weekly earnings
program laws by the time the reconciliation language is
[AWE])
enacted would be permitted to administer the federal benefit
75% x (the portion of AWE between $290.01 and
for individuals in their states if certain conditions are met.
$658.62)
Such states—called legacy states—would be reimbursed for
program costs up to a maximum amount. The reconciliation
55% x (the portion of AWE between $658.63 and
language would also permit certain employers to pay
$1,384.62)
benefits through an approved employer-sponsored leave
25% x (the portion of AWE between $1,384.63 and
program if certain conditions are met. Such employers
$1,923.08)
would be reimbursed for a portion of the actual or national
average costs associated with providing such paid leave
5% x (the portion of AWE between $1,923.09 and
benefits, up to a maximum amount. Individuals who are
$4,807.69)
eligible for leave benefits from approved employer-
For qualified caregiving that occurs in weeks that end
sponsored plans or under a legacy state program may not
within the year 2024, the maximum weekly benefit would
claim the federal benefit paid by the Treasury Department.
be of $1,201.09. A minimum benefit has not been proposed.
Small Business Assistance Grants
An individual’s AWE would be calculated as the quotient
Certain small businesses with no more than 50 employees
of total wages (including self-employment income) during
may apply for federal grants to help cover costs associated
the most recent eight-quarter calendar quarter period (a
with paid family and medical leave costs that are in excess
two-year period) that ends four months prior to the
of the cost of providing wages to employees on leave (e.g.,
beginning of the individual’s benefit period by 104 (i.e., the
the cost of hiring a temporary replacement for an employee
number of weeks in two years). After calendar year 2024,
on leave). Eligible employers can receive up to one grant
the “bend points” of the weekly benefit formula—the dollar
per employee on leave per year, and up to 10 grants total
amounts used to calculate the weekly benefit rate—would
per year, in an amount equal to 2.5 times the average
increase annually by the growth in the national average
weekly wage in the state in which the employee works.
wage index (42 U.S.C. §409(k)(1)) or would remain at the
previous year’s level if the average wage index does not
Relationship to Job-Protected Leave
increase.
In general, the reconciliation language does not propose to
create a new entitlement to job-protected leave. Exceptions
Eligibility Requirements
are employers who are reimbursed for providing paid
In general, in order to claim the proposed federal benefit, an
family and medical leave or who receive small business
individual must have filed an application for benefits and
assistance grants. Such employers must return an employee
have (or anticipate having) at least four caregiving hours in
to the same job or to one that is equivalent in terms of pay,
a week ending at any time during the period that begins 90
benefits, and employment terms and conditions to the one
days before the date on which such application is filed or
held prior to taking leave. Individuals claiming the benefit
not later than 180 days after such date. In addition, the
may otherwise receive job protection if they are entitled to
individual must have wages or self-employment income at
leave under the FMLA, state leave laws, or their employer’s
any time during the period that begins with the most recent
leave policy and coordinate such job-protected leave with
calendar quarter that ends at least four months prior to the
the receipt of the proposed benefit.
beginning of the individual’s benefit period and ends with
the month before the month in which such benefit period
Financing
begins. (For example, to be eligible for benefits starting in
The reconciliation language proposes that there would be
August 2024, an applicant would need to show earnings at
appropriated “out of any funds in the Treasury not
any time during the period from January 2024 to July
otherwise appropriated, such sums as may be necessary to
2024.) Individuals would not need to be employed to claim
pay” for benefits and associated program costs (e.g.,
the benefit.
administrative costs, small business assistance, assistance to
legacy states). The reconciliation language also proposes to
In general, individuals who receive wage compensation
finance education and outreach activities—to facilitate
(including fully paid leave) from an employer while
awareness of and access to the new benefit—from “any
engaged in caregiving may not claim the proposed benefit.
funds in the Treasury not otherwise appropriated” in the
However, individuals who receive employer-provided paid
amount of $150,000,000 for each of FY2022-FY2026 and
leave may claim the benefit if the sum of employer-
research activities from “any funds in the Treasury not
provided paid leave and the proposed federal benefit do not
otherwise appropriated” in the amount of $150,000,000 for
exceed 100% of the individual’s regular rate of pay.
each of FY2023-FY2027.
Individuals who have been found to have used false
statements or representation to obtain the federal benefit are
Sarah A. Donovan, Specialist in Labor Policy
disqualified from benefits for five years following such a
Barry F. Huston, Analyst in Social Policy
finding.
IF11922
https://crsreports.congress.gov
Provisions Related to Universal Paid Family and Medical Leave Developed by the House Committee on Ways and Means in
Response to Reconciliation Directives
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