Sec. 404. Family and Medical Leave Insurance benefit payments

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Every individual who— is insured for disability insurance benefits (as determined under section 223(c) of the Social Security Act ( 42 U.S.C. 423(c) )) at the time such individual’s application is filed; has earned income from employment during the 12 months prior to the month in which the application is filed; has filed an application for a family and medical leave insurance benefit in accordance with subsection (d); and was engaged in qualified caregiving, or anticipates being so engaged, during the period that begins 90 days before the date on which such application is filed or within 30 days after such date, shall be entitled to such a benefit for each month in the benefit period specified in subsection (c), not to exceed 60 caregiving days per benefit period.

Except as otherwise provided in this subsection, the benefit amount to which an individual is entitled under this section for a month shall be an amount equal to the greater of— the lesser of 1/18 of the wages and self-employment income of the individual for the calendar year in which such wages and self-employment income are the highest among the most recent three calendar years, or the maximum benefit amount determined under paragraph (2); or the minimum benefit amount determined under paragraph (2), multiplied by the quotient (not greater than 1) obtained by dividing the number of caregiving days of the individual in such month by 20.

For individuals who initially become eligible for family and medical leave insurance benefits in calendar year 2022, the maximum monthly benefit amount and the minimum monthly benefit amount shall be $4,000 and $580, respectively. For individuals who initially become eligible for family and medical leave insurance benefits in any calendar year after calendar year 2022 the maximum benefit amount and the minimum benefit amount shall be, respectively, the product of the corresponding amount determined with respect to calendar year 2022 and the quotient obtained by dividing— the national average wage index (as defined in section 209(k)(1) of the Social Security Act ( 42 U.S.C. 409(k)(1) )) for the second calendar year preceding the calendar year for which the determination is made, by the national average wage index (as so defined) for 2020.

Any calendar day during an individual’s benefit period which occurs before the expiration of an initial waiting period shall not be taken into account under this subsection as a caregiving day of the individual. Any calendar day during an individual’s benefit period which occurs after the expiration of a 60-day limitation period shall not be taken into account under this subsection as a caregiving day of the individual. A benefit under this section for a month shall be reduced by the amount, if any, in certain benefits (as determined under regulations issued by the Commissioner) as may be otherwise received by an individual.

For purposes of the preceding sentence, certain benefits include— periodic benefits on account of such individual’s total or partial disability under a workmen’s compensation law or plan of the United States or a State; and periodic benefits on account of an individual’s employment status under an unemployment law or plan of the United States or a State. A benefit received under this section shall be coordinated, in a manner determined by regulations issued by the Commissioner, with the periodic benefits received from temporary disability insurance or family leave insurance programs under any law or plan of a State, a political subdivision (as that term is used in section 218(b)(2) of the Social Security Act ( 42 U.S.C. 418(b)(2) )), or an instrumentality of two or more States (as that term is used in section 218(g) of such Act ( 42 U.S.C. 418(g) )).

Except as provided in paragraph (2), the benefit period specified in this subsection shall begin on the 1st day of the 1st month in which the individual meets the criteria specified in paragraphs (1), (2), and

(3)of subsection (a), and shall end on the date that is 365 days after the 1st day of the benefit period. In the case of an application for benefits under this section for qualified caregiving in which the individual was engaged at any time during the 90-day period preceding the date on which such application is submitted, the benefit period specified in this subsection shall begin on the later of— the 1st day of the 1st month in which the individual engaged in such qualified caregiving; or the 1st day of the 1st month that begins during such 90-day period, and shall end on the date that is 365 days after the 1st day of the benefit period. An application for a family and medical leave insurance benefit shall include— a statement that the individual was engaged in qualified caregiving, or anticipates being so engaged, during the period that begins 90 days before the date on which the application is submitted or within 30 days after such date; if the qualified caregiving described in the statement in paragraph

(1)is engaged in by the individual because of a serious health condition of the individual or a relative of the individual, a certification, issued by the health care provider treating such serious health condition, that affirms the information specified in paragraph

(1)and contains such information as the Commissioner shall specify in regulations, which shall be no more than the information that is required to be stated under section 103(b) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2613(b) ); if such qualified caregiving is engaged in by the individual for any other authorized reason, a certification, issued by a relevant authority determined under regulations issued by the Commissioner, that affirms the circumstances giving rise to such reason; and an attestation from the applicant that his or her employer has been provided with written notice of the individual’s intention to take family or medical leave, if the individual has an employer, or to the Commissioner in all other cases. An individual shall be ineligible for a benefit under this section for any month for which the individual is entitled to— disability insurance benefits under section 223 of the Social Security Act ( 42 U.S.C. 423 ) or a similar permanent disability program under any law or plan of a State or political subdivision or instrumentality of a State (as such terms are used in section 218 of the Social Security Act ( 42 U.S.C. 418 )); monthly insurance benefits under section 202 of such Act ( 42 U.S.C. 402 ) based on such individual's disability (as defined in section 223(d) of such Act ( 42 U.S.C. 423(d) )); or benefits under title XVI of such Act ( 42 U.S.C. 1381 et seq.) based on such individual’s status as a disabled individual (as determined under section 1614 of such Act ( 42 U.S.C. 1382c )). An individual who has been convicted of a violation under section 208 of the Social Security Act ( 42 U.S.C. 408 ) or who has been found to have used false statements to secure benefits under this section, shall be ineligible for benefits under this section for a 1-year period following the date of such conviction. The Commissioner shall provide notice to an individual applying for benefits under this section of the initial determination of eligibility for such benefits, and the estimated benefit amount for a month in which one caregiving day of the individual occurs, as soon as practicable after the application is received. An individual may request review of an initial adverse determination with respect to such application at any time before the end of the 20-day period that begins on the date notice of such determination is received, except that such 20-day period may be extended for good cause. As soon as practicable after the individual requests review of the determination, the Commissioner shall provide notice to the individual of a final determination of eligibility for benefits under this section. The Commissioner shall make any monthly benefit payment to an individual claiming benefits for a month under this section, or provide notice of the reason such payment will not be made if the Commissioner determines that the individual is not entitled to payment for such month, not later than 20 days after the individual’s monthly benefit claim report for such month is received. Such monthly report shall be filed with the Commissioner not later than 15 days after the end of each month. If the Commissioner determines that payment will not be made to an individual for a month, or if the Commissioner determines that payment shall be made based on a number of caregiving days in the month inconsistent with the number of caregiving days in the monthly benefit claim report of the individual for such month, the individual may request review of such determination at any time before the end of the 20-day period that begins on the date notice of such determination is received, except that such 20-day period may be extended for good cause. Not later than 20 days after the individual requests review of the determination, the Commissioner shall provide notice to the individual of a final determination of payment for such month, and shall make payment to the individual of any additional amount not included in the initial payment to the individual for such month to which the Commissioner determines the individual is entitled. An application for benefits under this section and a monthly benefit claim report of an individual shall each be presumed to be true and accurate, unless the Commissioner demonstrates by a preponderance of the evidence that information contained in the application is false. For purposes of this subsection, the term monthly benefit claim report means, with respect to an individual for a month, the individual’s report to the Commissioner of the number of caregiving days of the individual in such month, which shall be filed no later than 15 days after the end of each month. All final determinations of the Commissioner under this subsection shall be reviewable according to the procedures set out in section 205 of the Social Security Act ( 42 U.S.C. 405 ). This section does not preempt or supercede any provision of State or local law that authorizes a State or local municipality to provide paid family and medical leave benefits similar to the benefits provided under this section. 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 than the rights established under this title. It shall be unlawful for any person to discharge or in any other manner discriminate against an individual because the individual has applied for, indicated an intent to apply for, or received family and medical leave insurance benefits. Any person who violates paragraph

(1)shall be liable to any individual employed by such person who is affected by the violation— for damages equal to the sum of— the amount of— any wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation, such as the cost of providing care, up to a sum equal to 60 calendar days of wages or salary for the individual; the interest on the amount described in subclause

(I)calculated at the prevailing rate; and an additional amount as liquidated damages equal to the sum of the amount described in subclause

(I)and the interest described in subclause (II), except that if a person who has violated paragraph

(1)proves to the satisfaction of the court that the act or omission which violated paragraph

(1)was in good faith and that the person had reasonable grounds for believing that the act or omission was not a violation of paragraph (1), such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under subclauses

(I)and (II), respectively; and for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. An action to recover the damages or equitable relief prescribed in subparagraph

(A)may be maintained against any person in any Federal or State court of competent jurisdiction by any individual for and on behalf of— the individual; or the individual and other individuals similarly situated. The court in such an action 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. The right provided by subparagraph

(B)to bring an action by or on behalf of any individual shall terminate— on the filing of a complaint by the Commissioner in an action under paragraph

(5)in which restraint is sought of any further delay in the payment of the amount described in subparagraph (A)(I) to such individual by the person responsible under subparagraph

(A)for the payment; or on the filing of a complaint by the Commissioner in an action under paragraph

(3)in which a recovery is sought of the damages described in subparagraph (A)(I) owing to an individual by a person liable under subparagraph (A), unless the action described in clause

(i)or

(ii)is dismissed without prejudice on motion of the Commissioner. The Commissioner may bring an action in any court of competent jurisdiction to recover the damages described in paragraph (2)(A)(I). Any sums recovered by the Commissioner pursuant to subparagraph

(A)shall be held in a special deposit account and shall be paid, on order of the Commissioner, directly to each individual affected. Any such sums not paid to an individual because of inability to do so within a period of 3 years shall be deposited into the Federal Family and Medical Leave Insurance Trust Fund. An action may be brought under this subsection not later than 3 years after the date of the last event constituting the alleged violation for which the action is brought. An action brought by the Commissioner under this subsection shall be considered to be commenced on the date when the complaint is filed. The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Commissioner— to restrain violations of paragraph (1), 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 an individual; or to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion. For purposes of subsection (a)(1), an individual shall be deemed to be insured for disability insurance benefits if the individual would be so insured if the individual’s service as an employee (as defined in the section 1(b) of the Railroad Retirement Act of 1974) after December 31, 1936, were included within the meaning of the term employment for purposes of title II of the Social Security Act ( 42 U.S.C. 401 et seq.). For purposes of determining whether an activity engaged in by an individual constitutes qualified caregiving under this section— the term spouse (as used in section 102(a) of the Family and Medical Leave Act ( 29 U.S.C. 2612(a) )) includes the individual’s domestic partner; and the term son or daughter (as used in such section) includes a son or daughter (as defined in section 101 of such Act) of the individual’s domestic partner. For purposes of paragraph (1), the term domestic partner , with respect to an individual, means another individual with whom the individual is in a committed relationship. The term committed relationship means a relationship between two individuals (each at least 18 years of age) in which each individual is the other individual’s sole domestic partner and both individuals share responsibility for a significant measure of each other’s common welfare. The term includes any such relationship between two individuals, including individuals of the same sex, that is granted legal recognition by a State or political subdivision of a State as a marriage or analogous relationship, including a civil union or domestic partnership. The provisions of sections 204, 205, 206, and 208 of the Social Security Act shall apply to benefit payments authorized by and paid out pursuant to this section in the same way that such provisions apply to benefit payments authorized by and paid out pursuant to title II of such Act. Applications described in this section may be filed after January 1, 2022.

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