How to Handle Requests for Flexible Work Arrangements
Author: Barton A. Bixenstine, Vorys, Sater, Seymour and Pease LLP
Shifts in the demographics of the US labor market have led to a dramatic growth in the number of employees who must juggle family and work responsibilities. At the same time, market and technology forces have given many employers an economic incentive to adopt more flexible work arrangements for some jobs so they can respond quickly to changes in product demand and new market developments, and manage economic uncertainties. Together, these forces have contributed to an explosive growth in so-called flexible work arrangements, such as such as flextime, telework and compressed workweeks.
The Department of Labor (DOL) highlighted the increasing importance of workplace flexibility with the creation of an online Workplace Flexibility Toolkit. The toolkit supplies employers, job seekers, employees, policymakers and researchers with over 170 resources devoted to promoting programs for providing workplace flexibility.
Under the Americans with Disabilities Act (ADA), an employee with a covered disability may be entitled to some form of flexible work arrangement as a reasonable accommodation to enable the employee to perform the essential functions of the job. Even absent a legal obligation, employers may have economic incentives to provide employees with flexible work arrangements, such as to keep competitive, increase employee morale and get workers out on leave or workers' compensation back to work sooner.
An employer should follow these steps for handing an employee's accommodation request for a flexible work arrangement.
Step 1: Determine Whether a Flexible Work Arrangement Request Implicates the ADA
Even if an employee does not clearly relate a flexible work arrangement request to a disability under the ADA, an employer must determine if the request should be treated as a request for an ADA accommodation.
In general, an employer does not have a reasonable accommodation obligation under the ADA unless the employee requests an accommodation that the employee relates to an impairment that qualifies as an ADA disability. However, there is no requirement that an employee use the term accommodation or any "magic words." An employee who requests a flexible work arrangement only needs to relate the request to a disability. Even if the employee does not disclose that he or she has a disability, the employer may already have reason to know that the employee has a disabling condition, based on what the individual does disclose or information already known about the employee's health condition, including information from workers' compensation proceedings or the employee's prior leave requests.
There is no requirement to speculate as to whether the employee is requesting a flexible work arrangement as an ADA accommodation, but if the employee has an obvious impairment that could qualify as an ADA disability or discloses having such an impairment, or the employer's medical records concerning the employee indicate that the employee has such an impairment, the prudent course is to conclude that the ADA applies and address the employee as requesting an ADA accommodation.
Step 2: Decide Whether to Place the Employee in a Temporary Position While Addressing the Request
There is no clear legal obligation to pay wages to an employee who is out on leave, for example, during the process of addressing a possible accommodation issue, but there may be reasons to do so, such as to promote an atmosphere of good will and deter legal challenges if the process takes some time. Another reason could be because the employee can perform some valued functions even if he or she is unable to return to full duty. If such a temporary assignment is made, it must be made clear to the employee, preferably in writing, that the initial assignment is temporary.
Step 3: Decide Whether to Treat the Employee As Having an ADA-Protected Disability
Under the ADA, an employee has an ADA-protected disability if, as a result of a physical or mental impairment, he or she is unable to perform one or more major life activities or is significantly restricted in performing one or more major life activities as compared to the average person in the general population. Under the more liberal construction of disability established by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), disability is to be construed "broadly in favor of expansive coverage," so that doubts about whether an employee's impairments rise to the level of an ADA-protected disability generally should be resolved in favor of treating the employee as disabled. The focus of attention should be on whether there is a reasonable accommodation available.
If the requested flexible work arrangement raises no significant operational issues, it may be possible to implement the requested arrangement without the need to look into whether the individual has an ADA-protected disability. Otherwise, if the employee's impairment or its seriousness is not obvious (as may be the case with impairments such as migraines, back impairments and psychological impairments), and the requested work arrangement is burdensome or expensive, it may be necessary to take the time and effort (and the expense) to address whether the employee has an impairment, even under the liberalized legal standard, that should be treated as an ADA-protected disability.
As reflected in litigation, requests for flexible work arrangements are often justified by psychological conditions such as insomnia, chronic depression, anxiety or insomnia or by nonobvious physical conditions such as chronic fatigue syndrome, Chiari malformation or spinal arthritis. While doubts should be resolved in favor of treating the employee as having an ADA-protected disability, there may be reasons to question whether the employee has an impairment that, even under the liberalized legal standard, should be treated as an ADA-protected disability.
When the existence of a disability is not known or obvious based on information already available, an employer should get the additional information needed to determine whether the individual should be treated as having a disability. The first source of additional information should be the employee, who should be asked to provide medical confirmation that he or she has an impairment that is sufficiently limiting to be treated as a disability. If an employee responds with inadequate documentation, the employee must be informed of why the documentation is inadequate and allowed an opportunity to correct the inadequacy in a timely manner. If the information from the employee remains inadequate or is reasonably suspect, then it is appropriate to request the employee's consent, through an appropriate Health Insurance Portability and Accountability Act (HIPAA)-compliant authorization form, to communicate directly with the employee's heath care provider(s) through an appropriate medical representative.
Only if the employee's information and that of the employee's health care provider(s) remains insufficient or suspect should the employee be requested to consent to be examined by an employer-designated health care provider to get the necessary information. If an individual and/or the individual's health care provider submits sufficient documentation to show the existence of an ADA disability and the need for a reasonable accommodation, continued efforts by the employer to require that the employee submit to an independent medical examination (IME) could be considered retaliation.
In making the decision whether the employee be treated as disabled, an employer should follow these rules:
- Whether an impairment is substantial must be evaluated without regard to the ameliorative effects of mitigating measures.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity in its active state.
- An impairment that limits one major life activity need not limit any others to qualify as an ADA-protected disability.
- The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting, so that even conditions lasting a few months may now be considered as a disability, although impairments lasting for such short periods would typically not be covered unless sufficiently severe.
Step 4: Engage in the Interactive Process, If Needed
If the employee is a qualifying individual with a disability, the employer should be prepared to engage in the interactive process as required by the ADA. If it is obvious that the requested work arrangement or something like it would be a suitable accommodation that can be implemented without significant expense or other burden, then providing the requested accommodation may be a simple matter. If, on the other hand, the requested arrangement may not be feasible or easily implemented because it would be too expensive or create operational burdens, for example, then the employer must engage in a fully documented interactive process to determine if there is another reasonable accommodation option for the employee's limitations.
Perform Initial Due Diligence to Identify Essential Job Functions. The ADA requires that the employee be able to perform essential job functions. Therefore, it is important for the employer to review the employee's current job description and any available job analysis for the position in question, and to identify or confirm or conduct further analysis to establish the core purpose(s) for which the job exists and the corresponding essential and nonessential functions of the job. An essential function is a job function that is fundamental to the position, taking into account the consequences of not having the employee perform that function. Some essential functions are best expressed as essential capabilities, such as reliable attendance or the ability to stand for eight hours.
Interact With the Employee. Under the ADA, when an employee requests a flexible work arrangement as an accommodation, the employer must timely and in good faith engage in a meaningful, interactive discussion with the employee in an effort to determine if the requested accommodation is reasonable, or if there are alternative accommodations that may be reasonable and preferable from the employer's perspective. The employer should talk directly with the employee, as often as necessary. If there are alternative accommodations to be considered, the employer should get the employee's assessment of the alternatives, the employee's preferences among the alternatives and the reasons for the employee's preferences. It is best to avoid legal jargon. It is enough to get the ball rolling to say, "I'd like to talk to you about your request for a flexible work schedule, and I want to get your ideas and views."
Obtain Additional Information As Needed. An employer may ask for any additional information that is needed in order to evaluate the employee's request for a flexible work arrangement. If there are concerns about the impact of assigning the employee the requested flexible work arrangement, the employer should investigate whether there are possible reasonable accommodation options by getting input from the employee's supervisor, from other comparable supervisors or company personnel who know the job at issue and, if necessary, from third-party sources (e.g., consultants, health care professionals, Job Accommodation Network).
Evaluate Whether the Requested Work Arrangement Will Allow the Employee to Perform the Job. If the employee cannot perform essential job functions, then the requested work arrangement does not need to be provided. For example, the type of arrangement proposed by the employee may not be reasonable because an essential function is working standard hours (such as when the job is to communicate with customers during normal business hours), or having regular hours or days of attendance even if they need not be standard 8-5 hours (such as when the position involves work that must be performed to deadlines), or having predictable attendance (in the face of a request to work unpredictable working hours each day or to work unpredictable days), or because the assignment would significantly increase the work load of other employees.
Perform a Direct Threat Analysis Where Needed. An employer should get medical professional and/or other input, if needed, to establish whether the employee can actually perform the essential job duties with the proposed flexible work arrangement or any other accommodation under consideration without posing a direct threat to the employee's health or safety or the health or safety of other employees.
If there is a concern that implementing a particular proposed accommodation would pose a direct threat to the health and safety of the employee or other employees, an employer should get any necessary medical professional input, and document the specific facts and medical opinions relied upon in any determination that an accommodation would result in a direct threat to employee safety. If there are objective reasons to be concerned about that the employee cannot perform the essential functions of the job or the assignment would pose a direct threat to the health or safety of the employee, and the opinion of a medical professional is needed, it is permissible to require the employee to agree to undergo a fitness-for-duty examination by an employer-selected health care provider, as a condition of addressing the employee's work assignment request.
Decide If Light Duty Is Appropriate. If the disability or some of the resulting limitations are not permanent, an employer may want to consider a light-duty assignment as a bridge to a full-duty position. Generally, light duty refers to temporary or permanent work that is physically or mentally less demanding than normal job duties. It can include simply excusing an employee from performing those job functions that he or she is unable to perform because of an impairment. Generally, an employer is not required to make use of a light-duty assignment on a permanent or temporary basis unless such a position is open and available and the employee, potentially with some reasonable accommodation, can perform the duties of the light-duty position.
Perform an Undue Hardship Analysis. An accommodation is not reasonable - and need not be granted - if it would cause an undue hardship for the employer.
The legal standard for undue hardship looks at such factors as the net cost of the accommodation, taking into consideration the availability of tax credits, deductions and outside funding; the overall financial resources of the facility or facilities involved in providing the reasonable accommodation and its effect on expenses; the overall financial resources of the company and the size of its business; the type of operation or operations of the business; and the impact of the accommodation on the operations of the facility, including the ability of other employees to perform their duties and the facility's ability to conduct business.
If there is an undue hardship from permitting the employee to work a flexible work arrangement, the most likely source would be the impact of the accommodation on the work or other employees (such as, for example, the inability to plan the work schedules of others with whom the employee interacts). If there is medical certification that the flexible work arrangement will be needed only temporarily, then, depending on the length of the temporary period, any operational burdens may be manageable.
Make It Clear to the Employee That the Flexible Work Arrangement Is Conditional. If more than one accommodation will allow the employee to perform his or her essential job functions, the employee does not get to make the final choice; however, his or her preferences should be fully discussed. Once the decision is made, an employer should be clear that it believes the accommodation will work, but there are no guarantees. That way, there will be less resistance from the employee if the accommodation needs to be abandoned.
Consider a Transfer to a Vacant Position. If there is no accommodation that would not create an undue hardship, the employer should determine if there is a vacant position for which the employee is qualified (with a flexible work arrangement or other reasonable workplace accommodations if necessary). If there is another vacant position, and there is a policy of filling the relevant vacancy by a process of competitive selection, the employer must decide whether to consider the employee for the position through competitive selection or to make an exception to that policy to accommodate the disability. In some jurisdictions, such as the 7th, 10th and the District of Columbia, that decision may not be optional. See The 7th Circuit Changes Its Position on Assigning Employees With Disabilities to Vacant Positions.
Fully Document the Interactive Process. A prudent employer would document every step of the interactive process, including the process of deciding on the response to the employee's accommodation request. If the requested flexible work arrangement is denied, or the employee does not perform well even with a flexible work arrangement, it will be vital to have a documented record of the efforts that were made to identify an accommodation, the interactive process that took place and the reasons for the decisions that were made.
Keep the Documentation Confidential. An employer should not keep documentation about an employee's disability or the accommodation process in the employee's personnel file. Instead, it should be kept in a separate confidential medical file.
Step 5: Consider Applicable State or Local Law
Even if an employee does not have an ADA-protected disability, an employer may have a legal obligation to offer a flexible work arrangement under a state or local law. For example, in Vermont, an employer must consider a flexible working arrangement for both male and female employees. Under this law, an employer has 30 days to engage in good-faith discussions with the employee regarding the request. In San Francisco, an employer must meet with an employee within 21 days of the employee's flexible work arrangement request. State or local laws regarding flexible working arrangements are generally very particular with respect to the time frame in which an employer must respond to such requests, prohibitions on retaliation, how often employees can request such arrangements and more.
In addition, an employer may need to take into account possible gender discrimination claims when addressing employee requests for flexible work arrangements to facilitate providing family care, given that most employees who are also family caregivers are female. This is another instance where an employer should also pay close attention to applicable state or local laws, as there are dozens of localities that have family responsibility discrimination laws which could be the basis for a claim in response to denial of a request for a flexible work arrangement.
Also, employees may be entitled to flexible work arrangements, at least on a temporary basis, under the federal Family and Medical Leave Act (FMLA) or an equivalent state law. The FMLA allows leave to be taken on an intermittent or reduced schedule basis.
Step 6: Consider Offering a Flexible Work Arrangement, Even If Not Legally Required
The changing demographics of the workforce has given some employers an incentive to offer family-friendly policies and flexible work arrangements, such as offering extended maternity leave policies, part-time schedules, reduced work schedules and telecommuting arrangements. These policies/arrangements allow an employee to balance work with family responsibilities. Depending on the circumstances, flexible work arrangements may advance the employer's interest in several ways, including helping the employer to:
- Get employees on leave or who are disabled back to work sooner;
- Retain valuable employees or reemploy trained employees, which can lower employee recruitment and training costs;
- Increase employee productivity;
- Increase diversity in the workplace;
- Reduce workers' compensation expenses or other insurance costs;
- Increase workplace safety;
- Respond to employees' medical or family situations, which serves to keep morale high and retain loyalty; and/or
- Fill positions when there are labor shortages, such as evening shift jobs, part-time positions, or jobs that are in high crime areas.
Step 7: Consider Implementing Flexible Workplace Policies and Training
Taking into account the legal risks as well as the practical realities associated with changing workplace demographics, an employer should consider developing written accommodation/flexible workplace arrangement policies and procedures. Such policies and procedures can help ensure that all employees are aware of what they need to do, who they need to contact and what documentation they may need when requesting an accommodation. It also helps to insure consistency across the organization when handling accommodation/flexible arrangement requests and helps document an employer's efforts to provide effective accommodations.
Such policies and procedures should be simple and straightforward. Within the policy there should be contact information for the person who will be responsible for implementing and overseeing the accommodation/flexible workplace arrangement requests. Such person could be someone from HR or a team leader or supervisor - the right person may vary from employer to employer. The policy must be clearly communicated to all employees, including supervisors and managers.
No matter who is responsible for processing requests for accommodations or flexible work arrangements, all supervisors need to know how to recognize a request, especially from an employee who might be protected by the ADA. Many employees file complaints under the ADA because a supervisor did not recognize the employee's request as a request for an ADA reasonable accommodation. An employer should also inform supervisors what to do once an employee makes a request. See also ADA: An Overview - Supervisor Briefing.
Aside from ADA compliance, an employer that provides flexible work arrangements for all employees and that has policies and procedures regarding such arrangements will want to insure the policies and procedures are effectively communicated and followed. Training supervisors will help further this goal.
Step 8: Monitor Flexible Work Arrangements
There are many flexible workplace arrangements. Obvious ones are flexible work schedules, which can range from part-time to a reduced schedule, to complete flexibility in work days and work hours, to a more circumscribed flexibility to work any hours as long as they total 40 in a week, to an even more circumscribed flexibility to start work within a specified range of time, but to then work a full eight-hour schedule.
Another type of flexible work arrangement is telecommuting. Telecommuting programs have numerous advantages for both employees and employers. They combat absenteeism, boost productivity and morale, and increase employee retention.
Another flexible workplace arrangement is job sharing. Job sharing is where two or possibly more employees share a single job. For example, one person may work in a certain position Monday and Tuesday, and a second person may occupy the same position Thursday and Friday. The two people may both work on Wednesday and use that time to update each other on the current status of the various projects on which they collaborate. A variety of other arrangements are possible.
An employer should monitor any type of flexible work arrangement provided to employees, as they may need to be updated periodically. For example, if the arrangement involves specific equipment, the equipment may need periodic maintenance. An employer should continue interacting with employee throughout an accommodation's or arrangement's lifecycle.