The Obama Administration has initiatives in worklife balance including flexible work arrangements (FWAs), says attorney David Fortney, but those making the proposals are often not cognizant of the true effect of their mandates.
Fortney is a co-founder of law firm Fortney & Scott, LLC in Washington, DC, and is editor of the Federal Employment Law Insider. He made his remarks about FWAs at SHRM’s Employment Law and Legislative Conference, held recently in the nation’s capitol.
Well-Meaning, But Dangerous
As an example of the problems with FWAs, says Fortney, there’s the Administration’s Middle-Class Task Force. One of its goals is improving work and family balance. One recommendation under consideration is to extend FMLA to employers with 25 or more employees and to expand the activities and circumstances that are covered by FMLA protections.
This is well-meaning, but it’s dangerous, says Fortney. Sure the leave is unpaid, but the work still has to be done. (And the smaller the company, the more likely it’s going to have to hire someone new to take over the duties of the person on leave.)
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Focus on caregivers by EEOC
The EEOC is focusing on caregiving issues, having recently held hearings on Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities, and having issued “Employer Best Practices for Workers with Caregiving Responsibilities” in 2009, says Fortney.
EEOC is recommending:
- Providing flexible work arrangements. (OK, if feasible, says Fortney.)
- If overtime required, allow advance scheduling. (OK, but there are emergencies, says Fortney.)
- Provide reasonable personal or sick leave even if not required by FMLA.
- Post employee schedules as early as possible.
As an indication of its earnestness, the EEOC says it is going to “find some cases to get people to pay attention,” Fortney says. Bottom line, for the moment, he adds, this is a hot topic for EEOC, so it should be a hot topic for employers.
Unfortunately, that’s not the only hot topic HR managers have to deal with. It’s just one of what, a dozen challenges that will cross your desk today? We’re talking about intermittent leave challenges; accommodation headaches; investigation woes; training, interviewing, and attendance; to name just a few. In HR, if it’s not one thing, it’s another. And in a small department, it’s just that much tougher.
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I’m not sure FMLA leave really counts a “flexible work arrangement.” It sounds like Mr. Fortney is just taking the opportunity to reject any possible FMLA expansion out of hand.