Flexible Working Arrangements: General Principles and Legislation
While reasonable effort should be made to accommodate requests, the decision to approve a flexible working arrangement is made by the supervisor who is responsible for the operation of the work unit. Supervisors are ultimately accountable to balance individual needs with the needs of other staff and faculty, with a view to the successful operation of the unit as a whole. As a result, a flexible working arrangement is never a right, but it may be a possibility in situations where it makes sense for both the employee and the University.
The principles communicated under Guidelines for Staff and Guidelines for Supervisors and Managers offer ideas for structuring flexible working arrangements for non-represented staff, within the framework of University policy. If you have questions about these options, or ideas about other ways to approach flexible working arrangements, please e-mail Human Resource Services at firstname.lastname@example.org or call 802-656-3150.
There are two types of workplace flexibility:
- Informal Workplace Flexibility: Informal flexibility is occasional in nature without significant impact on supervisors/managers, co-workers, or clients. While such arrangements require approval by supervisors/managers, they do not require written requests. Example: Altering the start and end times of a work day to attend a family event.
- Formal Workplace Flexibility: The formal flexibility proposal process outlined here is designed for those employees and supervisors/managers who want to institute an intermediate or long term change in a person's regular working hours. (There are other processes for scheduling changes that are related to medical leave or disability.) Example: An individual requests to work all of her designated hours within four days and not be in the office on Wednesdays for one semester.
The Flexible Working Arrangement information on the HRS website is focused primarily on formal workplace flexibility and provides an overview to help staff and their supervisors think about flexible working arrangements.
Flexible Working Arrangements Are Not for Everyone
Some bodies of work are suited to flexible working arrangements; others are not. Individual job descriptions generally provide insight about which work may lend itself to a flexible arrangement. A supervisor may ask the individual requesting an arrangement to provide a proposal outlining how the arrangement would affect the completion of duties, how it would impact other staff and faculty, and how it would affect any customers serviced. After a careful evaluation of the pros and cons of a flexible arrangement, the supervisor should explain clearly why an arrangement is or is not approved.
There may be cases when two or more employees with similar duties request a flexible working arrangement. Within a small or specialized work unit, a supervisor may not be able to approve all requests. The fact that one person works on a flexible arrangement does not mean that everyone may do so. The supervisor should assess the work to determine how much flexibility is possible. Approval may take into consideration such factors as seniority, merit, skills, and personal circumstances when a choice must be made.
When a Flexible Working Arrangement Doesn't Work
A flexible working arrangement is an option—not a right—for employees and supervisors. Each request will be reviewed in keeping with the provisions of Act 31, and staff do not have the right to grieve a supervisor's decision.
Supervisors have the right and responsibility to modify or terminate a flexible working arrangement at any time based on a wide variety of issues including staffing concerns, business needs, and new or changing responsibilities within the department.
Vermont State Law: Act 31
Flexible Working Arrangements: Right to Ask, Duty to Consider
Effective January 1, 2014, under Act 31 of the Vermont State Law, an employee has the right to request a Flexible Working Arrangement and the supervisor has the duty consider such a request at least twice per calendar year.
[Act 31 includes legislation on a variety of topics in addition to the guidelines on Flexible Working Arrangements. In the text below, the term "this section" refers in the fuller context to the section of Act 31 that is focused on Flexible Working Arrangements. That section is reproduced here in its entirety.]
Sec. 6. 21 V.S.A. § 309 is added to read:
§ 309. FLEXIBLE WORKING ARRANGEMENTS
(a)(1) An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) [below] at least twice per calendar year.
(2) As used in this section, "flexible working arrangement" means intermediate or long-term changes in the employee's regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing. "Flexible working arrangement" does not include vacation, routine scheduling of shifts, or another form of employee leave.
(b)(1) The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion.
(2) The employer shall consider the employee's request for a flexible working arrangement and whether the request could be granted in a manner that is not inconsistent with its business operations or its legal or contractual obligations.
(3) As used in this section, "inconsistent with business operations" includes:
(A) the burden on an employer of additional costs;
(B) a detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;
(C) a detrimental effect on the ability of an employer to meet consumer demand;
(D) an inability to reorganize work among existing staff;
(E) an inability to recruit additional staff;
(F) a detrimental impact on business quality or business performance;
(G) an insufficiency of work during the periods the employee proposes to work; and
(H) planned structural changes to the business.
(c) The employer shall notify the employee of the decision regarding the request. If the request was submitted in writing, the employer shall state any complete or partial denial of the request in writing.
(d) This section shall not diminish any rights under this chapter or pursuant to a collective bargaining agreement. An employer may institute a flexible working arrangement policy that is more generous than is provided by this section.
(e) The Attorney General, a state's attorney, or the Human Rights Commission in the case of state employees may enforce subsections (b) and (c) of this section by restraining prohibited acts, conducting civil investigations, and obtaining assurances of discontinuance in accordance with the procedures established in subsection 495b(a) of this title. An employer subject to a complaint shall have the rights and remedies specified in subsection 495b(a) of this title. An investigation against an employer shall not be a prerequisite for bringing an action. The Civil Division of the Superior Court may award injunctive relief and court costs in any action. There shall be no private right of action to enforce this section.
(f) An employer shall not retaliate against an employee exercising his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.
(g) Nothing in this section shall affect any legal rights an employer or employee may have under applicable law to create, terminate, or modify a flexible working arrangement.
Supervisors: If you have questions, review the Flexible Working Arrangement Guidelines for Supervisors and Managers, then contact your HRS Management Solutions Consultant for assistance.
Last modified August 04 2014 02:50 PM