Workplace Flexibility, and Requesting Me
Avoiding Missteps With M Workplace flexibility that includes work arrangements like working at home and alternative and flexible scheduling is surging as many employers have been forced to adjust where, when, and how their workforce operates. Employers are implementing employment policies that allow, and sometimes require, employees to work in flexible ways to maintain business operations. But while some workplaces have embraced this flexibility, others still only offer flexible work arrangements either as a privilege or benefit of employment, or a job accommodation provided only to employees with disabilities who qualify and when reasonable. Employers who are asked to provide flexible work arrangements must sometimes decide whether to request information or an explanation from an employee in order to approve this type of request. When an employer generally allows flexible work arrangements as a policy or practice, often no information is required to be provided by employees. However, it’s not uncommon for a supervisor or manager to trip up when an employee requests access to workplace flexibility for a disability-related reason and to make the possible misstep of requesting medical documentation. This is when it’s important to keep the Americans with Disabilities Act (ADA) in mind. Why is it a possible ADA misstep to ask for medical information? Consider for a moment how employees without disabilities are generally treated when workplace flexibility is requested in accordance with an employer’s current policy or practice. For example, AccommSol company has a policy that allows alternative and flexible scheduling for employees in the advertising department. When Amaya requests to work a compressed work schedule in order to be off on Wednesdays to provide care for her eighty-threeyear-old mother, who requires dialysis, the employer does not ask for a note from her mother’s health care provider to approve the schedule. Amaya is granted the schedule she requests as a matter of policy. In another example, Keaton works in the same department and requests to flex his work schedule two days a week in order to attend group therapy sessions in the morning as part of his alcoholism recovery process. Keaton should not be asked to provide medical documentation to approve this request simply because his reason for requesting the flexible work schedule supports recovery and treatment for alcoholism. AccommSol’s policy entitles Keaton to a flexible work arrangement without the need to provide documentation or an explanation. 34
insight
When flexible work arrangements are available to all employees as a matter of policy or practice and no information or explanation is required, or no criteria must be met to receive this flexibility, then an employee with a disability who requests access to the flexibility afforded to others - like working at home a couple days a week or flexing a work schedule and making up time missed — should not be required to provide medical information to receive this flexibility. It’s not uncommon when a disability or medical reason is mentioned in the type of situation described above, that a supervisor or human resources manager might believe that the ADA is triggered and there is a duty to engage in the interactive process. The mere mention of disability can lead some to believe the request for access to the same flexibility available to others requires a different process. But it’s important to recognize when a request for a flexible work arrangement should be handled as a request for accommodation under the ADA, and when it should not. It is also important to keep disability-based discrimination in mind. What does this have to do with keeping discrimination in mind? Using a familiar idiom, if the flexible work arrangement an employee with a disability is asking for is something any employee would or could ask for, an employer should not require an employee with a disability to jump through unnecessary hoops, for example to provide medical information when employees without disabilities are not required to provide it. Using Keaton’s example above, if the supervisor asks for a note from Keaton’s therapist to confirm that he wishes to flex the work schedule to attend group therapy sessions, this is requiring Keaton to jump through extra hoops — to take additional steps and be held to a different standard — to access the flexibility that is available to everyone in his department as a matter of policy. This is treating someone differently on the basis of disability, just because a medical condition is the reason for the requested flexibility. If an employee is eligible for a flexible work arrangement based on policy, practice, or the terms of their employment, an eligible employee with a disability should not be held to a different standard to receive an available flexible work arrangement. This type of situation could be interpreted as discrimination under the ADA because the employee with a disability is being treated disparately than employees without disabilities.
may 2021
