Build Back Better Act: Universal Comprehensive Paid Leave

Build Back Better Act: Universal Comprehensive Paid Leave

December 9, 2021
Build Back Better Act: Universal Comprehensive Paid Leave
The Build Back Better Act (BBBA; H.R. 5376), passed by
requires either two or more in-person visits with a
the House on November 19, 2021, proposes a new federal
health care provider, or a single in-person visit that
cash benefit for eligible individuals engaged in certain types
results in a course of continuing treatment under a
of family and medical caregiving (Title XIII, Subtitle A). In
health care provider’s supervision.
particular, the act proposes to amend the Social Security
3. Pregnancy or prenatal care: any period of incapacity
Act (42 U.S.C. §§301 et seq.) by adding Title XXII:
due to pregnancy or for prenatal care, with no
Comprehensive Paid Leave Benefits, which would entitle
requirements concerning a specific duration of
eligible individuals to up to four workweeks of cash
incapacity or treatment by a health care provider.
benefits in each benefit period (generally, a 12-month
4. Chronic conditions: a condition that requires periodic
period). Benefits would be payable starting January 2024,
visits for medical treatment, continues over an
and the program would be permanently authorized.
extended period of time, and may cause episodic or
Qualified Caregiving
continuing periods of incapacity (e.g., asthma, diabetes,
epilepsy).
The proposed cash benefits would be payable to eligible
individuals engaged in qualified caregiving for at least four
5. Long-term or permanent conditions: a period of
hours in a week. Qualified caregiving is defined as an
incapacity due to a condition for which treatment may
unpaid activity engaged in by an individual in lieu of work
not be effective. To qualify as a serious health
for the following:
condition, the individual must be under the continuing

supervision of a health care provider.
the birth and care of the individual’s child within 12
6. Certain conditions requiring multiple treatments:
months of the child’s birth,
restorative surgery after an injury or accident, or a
 the placement of an adopted or fostered child with the
condition that would likely result in a period of
individual within 12 months of the child’s placement,
incapacity lasting three or more consecutive calendar
 the care for a qualified family member with a serious
days if not treated (e.g., dialysis for kidney disease).
health condition, and
A serious health condition generally does not describe a

minor ailment (such as the common cold), barring special
the individual’s own serious health condition if the
circumstances or medical complications, or a need for a
individual is unable to perform the essential functions of
routine doctor’s appointments (such as an annual physical).
his or her job.
Eligibility Requirements
Qualified Family Member
In general, in order to claim the proposed federal benefit, an
The act defines qualified family member, with respect to the
individual must have filed an application for benefits and
claimant, as a spouse (including a domestic partner) and a
have (or anticipate having) at least four caregiving hours in
spouse’s parent; a child and a child’s spouse; a parent and a
a week ending at any time during the period that begins 90
parent’s spouse; a sibling and a sibling’s spouse; a
days before the date on which such application is filed or
grandparent, a grandchild, or a spouse of a grandparent or
not later than 180 days after such date. In addition, the
grandchild; and any other individual who is related by
individual must have wages or self-employment income at
blood or affinity and whose association with the individual
some point during the period that begins with the most
is equivalent of a family relationship (as per regulations to
recent calendar quarter that ends at least four months prior
be issued by the Social Security administrator).
to the beginning of the individual’s benefit period and ends
with the month before the month in which such benefit
Serious Health Condition
period begins. (For example, to be eligible for benefits
BBBA uses the Family and Medical Leave Act (FMLA,
starting in August 2024, an applicant would need to show
P.L. 103-3, as amended) definition of serious health
earnings at any time during the period from January 2024 to
condition. Under FMLA, a serious health condition is one
July 2024.) Finally, an individual must have at least the
that requires inpatient care or continuing treatment by a
specified amount of wages or self-employment income
health care provider. These terms are further defined by
($2,000 in 2024 and adjusted thereafter) at any time during
Department of Labor regulations, resulting in six scenarios
the most recent eight-calendar quarter period that ends at
that qualify as a serious health condition:
least four months prior to the beginning of the individual’s
1. Inpatient care: care that includes an overnight stay in
benefit period. Individuals would not need to be employed
a medical facility and any associated period of
to claim the benefit.
incapacitation and treatment.
In general, individuals who receive wage compensation
2. Incapacity and treatment: a period of incapacity that
(including fully paid leave) from an employer while
lasts more than three consecutive calendar days and
engaged in caregiving may not claim the proposed benefit.
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Build Back Better Act: Universal Comprehensive Paid Leave
However, individuals who receive employer-provided paid
Weekly Benefit Amount Examples
leave may claim the benefit if the sum of employer-
Eligible individuals who regularly work 40 hours/week
provided paid leave and the proposed federal benefit do not
with average earnings of $15,080/year (AWE of $290)
exceed 100% of the individual’s regular rate of pay.
could claim a weekly benefit of $261.40 if they engaged in
at least 40 caregiving hours. For such individuals, the
Individuals who have been found to have used false
weekly claim would be $130.70 (i.e., ½ x $261.40) if they
statements or representation to obtain the federal benefit are
provided 20 hours of caregiving.
disqualified from benefits for five years.
Benefit Duration and Amount
Individuals who regularly work 40 hours/week and have
average earnings of $62,000/year (AWE of $1,192.31) or
Benefits would be calculated on a weekly basis and paid as
more could claim a weekly benefit of $814.10 if they
a monthly benefit. Benefits would be payable after a
engaged in at least 40 caregiving hours; the weekly claim
waiting period, defined as the first week during the benefit
would be $407.05 (i.e., ½ x $814.10) if they provided 20
period in which at least four caregiving hours occur.
hours of caregiving.
Eligible individuals may claim benefits for weeks in which
they had at least four qualified caregiving hours and in total
Administration
may claim up to the equivalent of four workweeks of
The Social Security Administration (SSA) would
qualified caregiving hours in a benefit period (typically 12
administer the program and pay benefits. States that had
months). For example, an individual who regularly works
enacted state leave insurance program laws by the time the
25 hours weekly may claim up to 100 caregiving hours in a
bill is enacted would be permitted to administer the federal
benefit period and no more than 25 hours in a given week.
benefit for individuals in their states if certain conditions
The monthly benefit would be equal to the sum of the
are met. Such states—called legacy states—would be
weekly benefit amounts for the weeks ending in that month.
reimbursed for benefits and program costs up to a
Initial Weekly Benefit Rate Formula
maximum amount.
The weekly benefit amount would be equal to the product
The act would also permit certain employers to pay benefits
of the weekly benefit rate multiplied by the ratio of the
through an approved employer-sponsored leave program if
creditable caregiving hours in the week to the hours in the
certain conditions are met. Such employers would be
regular workweek (i.e., weekly benefit rate x [hours of
reimbursed for a portion of actual benefits or national
caregiving/ hours in regular workweek]). Creditable
average costs associated with providing such paid leave
caregiving hours may not exceed the number of hours in an
individual’s regular workweek.
benefits up to a maximum amount. Individuals who are

eligible for leave benefits from approved employer-
sponsored plans or under legacy state programs may not
For January 2024 through December 2024, the weekly
claim the federal benefit paid by SSA.
benefit rate would be the sum of:
 90.138% x (the first $290.00 of average weekly earnings Relationship to Job-Protected Leave
[AWE])
In general, the act does not propose to create a new

entitlement to job-protected leave. However, employers
73.171% x (the portion of AWE between $290.01 and
who are reimbursed for providing paid leave must return an
$658.62)
employee to the same job or to one that is equivalent in
 53.023% x (the portion of AWE between $658.63 and
terms of pay, benefits, and employment terms and
$1,192.31)
conditions to the one held prior to taking leave. Individuals
claiming the benefit may otherwise receive job protection if
An individual’s AWE would be calculated as the quotient
entitled to job-protected leave under the FMLA, state leave
of total wages (including self-employment income) during
laws, or their employers’ leave policies, and coordinate
the most recent eight-quarter calendar quarter period (two-
such job-protected leave with the receipt of the proposed
year period) that ends four months prior to the beginning of
benefit. Some individuals eligible for the benefit may not
the individual’s benefit period and 104 (the number of
have any access to job-protected leave.
weeks in two years). After calendar year 2024, the “bend
points” of the weekly benefit formula—the dollar amounts
Financing
used to calculate the weekly benefit rate—would increase
The bill proposes open-ended mandatory spending for paid
annually by the growth in the national average wage index
leave benefits, grants to legacy states, grants to employers
(42 U.S.C. §409(k)(1)) or would remain at the previous
that provide the paid leave benefit, and capped mandatory
year’s level if the average wage index does not increase.
spending for program administration costs starting in
FY2022. It proposes to appropriate funds for FY2022 for
For qualified caregiving that occurs in weeks that end
necessary administrative expenses of the SSA and
within 2024 (after which a portion of the benefit formula
additional emergency funds for program administration
will be adjusted), the maximum weekly benefit rate would
starting in FY2024 if certain conditions are met.
be $814.10. A minimum benefit is not proposed explicitly.
However, because the proposal would require claimants to
Sarah A. Donovan, Specialist in Labor Policy
have at least $2,000 in earnings in the eight-quarter period
used to calculate AWE, the implicit minimum weekly
Barry F. Huston, Analyst in Social Policy
benefit rate would be $34.67 in 2024.
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Build Back Better Act: Universal Comprehensive Paid Leave

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