Watch out for scope creep in flexible work arrangements

Despite best intentions and nondiscriminatory business motivations, some groups of employees may reap more of the benefits of flexible work arrangements than others simply because their circumstances make such options more attractive to them. Accordingly, you should take steps to ensure flexible work arrangements are offered and implemented without discrimination on any prohibited basis. In offering flexible work arrangements, you should consider employees’ unique, real needs and wants while also taking measures to ensure the arrangements don’t create a second class of employees that results in unlawful disparate treatment or disparate impact discrimination. As with all other employment practices, consistent and careful documentation, consistent decision-making practices, and clear policies are critical to fend off possible discrimination charges and to prevent flexible work arrangement scope creep from occurring.

Establishing flexibility

Flexible work arrangements are much more commonplace because of the workforce paradigm shift arising from the COVID-19 pandemic. Before the pandemic, flexible work arrangements were traditionally offered as a reasonable accommodation under the Americans with Disabilities Act (ADA). We now know that flexible work arrangements can affect employee retention and engagement for employees not otherwise protected by the ADA.