Public Health Emergency Response Act

I 118TH CONGRESS 1ST SESSION H. R. 4009 To establish emergency paid sick leave for individuals impacted by a public health emergency, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 12, 2023 Ms. BARRAGA´N (for herself, Ms. TOKUDA, Mr. LYNCH, Mr. CARSON, and Ms. NORTON) introduced the following bill; which was referred to the Com- mittee on Education and the Workforce, and in addition to the Commit- tees on Oversight and Accountability, House Administration, the Judici- ary, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To establish emergency paid sick leave for individuals im- pacted by a public health emergency, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Public Health Emer- 4 gency Response Act’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 4009 IH Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. References. DIVISION A—PUBLIC HEALTH EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT Sec. 101. Short title. Sec. 102. Amendments to the Family and Medical Leave Act of 1993. Sec. 103. Employment under multiemployer bargaining agreements. Sec. 104. Regulatory authority. DIVISION B—PUBLIC HEALTH EMERGENCY PAID SICK LEAVE ACT Sec. 201. Short title. Sec. 202. Paid sick time requirement. Sec. 203. Notice. Sec. 204. Prohibited acts. Sec. 205. Enforcement. Sec. 206. Employment under multiemployer bargaining agreements. Sec. 207. Rules of construction. Sec. 208. Definitions. Sec. 209. Regulatory authority. DIVISION C—TAX CREDITS FOR REQUIRED PAID PUBLIC HEALTH EMERGENCY LEAVE Sec. 301. Payroll credit for required paid public health emergency sick leave. Sec. 302. Credit for public health emergency sick leave for certain self-employed individuals. Sec. 303. Payroll credit for required paid public health emergency family leave. Sec. 304. Credit for public health emergency family leave for certain self-em- ployed individuals. Sec. 305. Special rule related to tax on employers. SEC. 3. REFERENCES. 1 Except as expressly provided otherwise, any reference 2 to ‘‘this Act’’ contained in any division of this Act shall 3 be treated as referring only to the provisions of that divi- 4 sion. 5 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 4009 IH DIVISION A—PUBLIC HEALTH 1 EMERGENCY FAMILY AND 2 MEDICAL LEAVE EXPANSION 3 ACT 4 SEC. 101. SHORT TITLE. 5 This Act may be cited as ‘‘Public Health Emergency 6 Family and Medical Leave Expansion Act’’. 7 SEC. 102. AMENDMENTS TO THE FAMILY AND MEDICAL 8 LEAVE ACT OF 1993. 9 (a) PUBLIC HEALTH EMERGENCY LEAVE.— 10 (1) IN GENERAL.—Section 102(a) of the Fam- 11 ily and Medical Leave Act of 1993 (29 U.S.C. 12 2612(a)(1)) is amended by adding at the end the 13 following: 14 ‘‘(6) PUBLIC HEALTH EMERGENCY LEAVE.— 15 ‘‘(A) IN GENERAL.—An eligible employee 16 shall be entitled to the number of workweeks of 17 leave determined under section 111(b)(3) be- 18 cause of a qualifying need related to a public 19 health emergency in accordance with section 20 111.’’. 21 (2) PAID LEAVE REQUIREMENT.—Section 22 102(c) of the Family and Medical Leave Act of 1993 23 (29 U.S.C. 2612(c)) is amended by striking ‘‘under 24 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 4009 IH subsection (a)(1)(F)’’ and inserting ‘‘under sub- 1 sections (a)(1)(F) and (a)(1)(G)’’. 2 (b) REQUIREMENTS.—Title I of the Family and Med- 3 ical Leave Act of 1993 (29 U.S.C. 2611 et seq.) is amend- 4 ed by adding at the end the following: 5 ‘‘SEC. 111. PUBLIC HEALTH EMERGENCY LEAVE. 6 ‘‘(a) DEFINITIONS.—The following shall apply with 7 respect to leave under section 102(a)(6): 8 ‘‘(1) APPLICATION OF CERTAIN TERMS.—The 9 definitions in section 101 shall apply, except as fol- 10 lows: 11 ‘‘(A) ELIGIBLE EMPLOYEE.—In lieu of the 12 definition in sections 101(2)(A) and 13 101(2)(B)(ii), the term ‘eligible employee’ 14 means an employee who has been employed for 15 at least 30 calendar days by the employer with 16 respect to whom leave is requested under sec- 17 tion 102(a)(6). 18 ‘‘(B) EMPLOYER THRESHOLD.—Section 19 101(4)(A)(i) shall be applied by substituting ‘1 20 or more employees’ for ‘50 or more employees 21 for each working day during each of 20 or more 22 calendar workweeks in the current or preceding 23 calendar year’. 24 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 4009 IH ‘‘(2) ADDITIONAL DEFINITIONS.—In addition to 1 the definitions described in paragraph (1), the fol- 2 lowing definitions shall apply with respect to leave 3 under section 102(a)(6): 4 ‘‘(A) QUALIFYING NEED RELATED TO A 5 PUBLIC HEALTH EMERGENCY.—The term 6 ‘qualifying need related to a public health emer- 7 gency’, with respect to leave, means the em- 8 ployee has a need for leave because the em- 9 ployee is caring for a child or family member of 10 such employee due to disruptions to childcare, 11 school, or caregiver services as a result of a 12 public health emergency. 13 ‘‘(B) PUBLIC HEALTH EMERGENCY.—The 14 term ‘public health emergency’ means an emer- 15 gency with respect to an infectious disease de- 16 clared by the Secretary of Health and Human 17 Services on or after January 1, 2022. 18 ‘‘(C) CHILD.—The term ‘child’ means a bi- 19 ological, foster, or adopted child, a stepchild, a 20 child of a domestic partner, a legal ward, or a 21 child of a person standing in loco parentis 22 under 18 years of age. 23 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 4009 IH ‘‘(D) FAMILY MEMBER.—The term ‘family 1 member’, with respect to an employee, means 2 the following: 3 ‘‘(i) A spouse or domestic partner. 4 ‘‘(ii) A son or daughter. 5 ‘‘(iii) A son-in-law or daughter-in-law. 6 ‘‘(iv) A parent. 7 ‘‘(v) A parent-in-law. 8 ‘‘(vi) A grandchild. 9 ‘‘(vii) A sibling. 10 ‘‘(viii) An uncle or aunt. 11 ‘‘(ix) A nephew or niece. 12 ‘‘(x) Any other individual whose close 13 association is the equivalent of a family re- 14 lationship with the employee. 15 ‘‘(E) DOMESTIC PARTNER.— 16 ‘‘(i) IN GENERAL.—The term ‘domes- 17 tic partner’, with respect to an individual, 18 means another individual with whom the 19 individual is in a committed relationship. 20 ‘‘(ii) COMMITTED RELATIONSHIP DE- 21 FINED.—The term ‘committed relationship’ 22 means a relationship between individuals, 23 each at least 18 years of age, in which 24 each individual is the other individual’s 25 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 4009 IH sole domestic partner and both individuals 1 share responsibility for a significant meas- 2 ure of each other’s common welfare. The 3 term includes any such relationship be- 4 tween 2 individuals that is granted legal 5 recognition by a State or political subdivi- 6 sion of a State as a marriage or analogous 7 relationship, including a civil union or do- 8 mestic partnership. 9 ‘‘(F) SCHOOL.—The term ‘school’ means 10 an ‘elementary school’ or ‘secondary school’ as 11 such terms are defined in section 8101 of the 12 Elementary and Secondary Education Act of 13 1965 (20 U.S.C. 7801). 14 ‘‘(b) PAID LEAVE.— 15 ‘‘(1) AVAILABILITY OF PAID LEAVE.— 16 ‘‘(A) IN GENERAL.—An employer shall 17 provide paid leave for each day of leave under 18 section 102(a)(6) that an employee takes. 19 ‘‘(B) CALCULATION.—Paid leave under 20 subparagraph (A) for an employee shall be cal- 21 culated based on— 22 ‘‘(i) the employee’s regular rate of pay 23 (as determined under section 7(e) of the 24 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 4009 IH Fair Labor Standards Act of 1938 (29 1 U.S.C. 207(e))); and 2 ‘‘(ii) the number of hours the em- 3 ployee would otherwise be normally sched- 4 uled to work (or the number of hours cal- 5 culated under paragraph (2)). 6 ‘‘(C) CLARIFICATION.—In no event shall 7 such paid leave exceed $511 per day. 8 ‘‘(2) VARYING SCHEDULE HOURS CALCULA- 9 TION.—In the case of an employee whose schedule 10 varies from week to week to such an extent that an 11 employer is unable to determine with certainty the 12 number of hours the employee would have worked if 13 such employee had not taken leave under section 14 102(a)(6), the employer shall use the following in 15 place of such number: 16 ‘‘(A) Subject to subparagraph (B), a num- 17 ber equal to the average number of hours that 18 the employee was scheduled per day over the 6- 19 month period ending on the date on which the 20 employee takes such leave, including hours for 21 which the employee took leave of any type. 22 ‘‘(B) If the employee did not work over 23 such period, the reasonable expectation of the 24 employee at the time of hiring of the average 25 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 4009 IH number of hours per day that the employee 1 would normally be scheduled to work. 2 ‘‘(3) LENGTH OF PUBLIC HEALTH EMERGENCY 3 LEAVE.—The number of workweeks of leave to 4 which an employee is entitled for the purposes of 5 this section shall be the greater of— 6 ‘‘(A) 12 workweeks, or 7 ‘‘(B) the number of workweeks determined 8 by the Secretary of Labor, in consultation with 9 the Director of the Centers for Disease Control 10 and Prevention, to be appropriate in relation to 11 such public health emergency. 12 ‘‘(c) NOTICE.—In any case where the necessity for 13 leave under section 102(a)(6) for the purpose described 14 in subsection (a)(2)(A) is foreseeable, an employee shall 15 provide the employer with such notice of leave as is prac- 16 ticable. 17 ‘‘(d) RESTORATION TO POSITION.— 18 ‘‘(1) IN GENERAL.—Section 104(a)(1) shall not 19 apply with respect to an employee of an employer 20 who employs fewer than 25 employees if the condi- 21 tions described in paragraph (2) are met. 22 ‘‘(2) CONDITIONS.—The conditions described in 23 this paragraph are the following: 24 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 4009 IH ‘‘(A) The employee takes leave under sec- 1 tion 102(a)(6). 2 ‘‘(B) The position held by the employee 3 when the leave commenced does not exist due to 4 economic conditions or other changes in oper- 5 ating conditions of the employer— 6 ‘‘(i) that affect employment; and 7 ‘‘(ii) are caused by a public health 8 emergency during the period of leave. 9 ‘‘(C) The employer makes reasonable ef- 10 forts to restore the employee to a position 11 equivalent to the position the employee held 12 when the leave commenced, with equivalent em- 13 ployment benefits, pay, and other terms and 14 conditions of employment. 15 ‘‘(D) If the reasonable efforts of the em- 16 ployer under subparagraph (C) fail, the em- 17 ployer makes reasonable efforts during the pe- 18 riod described in paragraph (3) to contact the 19 employee if an equivalent position described in 20 subparagraph (C) becomes available. 21 ‘‘(3) CONTACT PERIOD.—The period described 22 under this paragraph is the 1-year period beginning 23 on the earlier of— 24 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 4009 IH ‘‘(A) the date on which the qualifying need 1 related to an infectious disease concludes; or 2 ‘‘(B) the date that is a number of weeks 3 equal to the number of workweeks of leave to 4 which an employee is entitled under subsection 5 (b)(3) after the date on which the employee’s 6 leave under section 102(a)(6) commences.’’. 7 SEC. 103. EMPLOYMENT UNDER MULTIEMPLOYER BAR- 8 GAINING AGREEMENTS. 9 (a) EMPLOYERS.—An employer signatory to a multi- 10 employer collective bargaining agreement may, consistent 11 with its bargaining obligations and its collective bar- 12 gaining agreement, fulfill its obligations under section 13 111(b)(2) of title I of the Family and Medical Leave Act 14 of 1993, as added by the Public Health Emergency Re- 15 sponse Act, by making contributions to a multiemployer 16 fund, plan, or program based on the paid leave each of 17 its employees is entitled to under such section while work- 18 ing under the multiemployer collective bargaining agree- 19 ment, provided that the fund, plan, or program enables 20 employees to secure pay from such fund, plan, or program 21 based on hours they have worked under the multiemployer 22 collective bargaining agreement for paid leave taken under 23 section 102(a)(6) of title I of the Family and Medical 24 VerDate Sep 11 2014 04:29 Jul 11, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4009.IH H4009 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 4009 IH Leave Act of 1993, as added by the Public Health Emer- 1 gency Response Act. 2 (b) EMPLOYEES.—Employees who work under a mul- 3 tiemployer collective bargaining agreement into which 4 their employers make contributions as provided in sub- 5 section (a) may secure pay from such fund, plan, or pro- 6 gram based on hours they have worked under the multiem- 7 ployer collective bargaining agreement for paid leave taken 8 under section 102(a)(6) of title I of the Family and Med- 9 ical Leave Act of 1993, as added by the Public Health 10 Emergency Response Act. 11 SEC. 104. REGULATORY AUTHORITY. 12 The Secretary of Labor shall have the authority to 13 issue regulations for good cause under sections 553(b)(B) 14 and 553(d)(3) of title 5, United States Code, as necessary, 15 to carry out the purposes of this Act, including to ensure 16 consistency between this Act and Division B and Division 17 C of the Public Health Emergency Response Act. 18 DIVISION B—PUBLIC HEALTH 19 EMERGENCY PAID SICK 20 LEAVE ACT 21 SEC. 201. SHORT TITLE. 22 This Act may be cited as the ‘‘Public Health Emer- 23 gency P [Text truncated for display. Full text available on Congress.gov.]