Examination will consider whether federal workers should have right to request flexible work schedules
Job sharing. Compressed work weeks. Working from home. Early to work, early to leave or late to work, late to leave.
Imagine having the right to ask for these types of flexible work arrangements without having to worry about it jeopardizing your job. While this may be routine in some businesses now, in the not-too-distant future, it could become commonplace in most, if not all, workplaces in Canada.
The federal government is examining whether to add more options for flexible work arrangements to the labour standards section of the Canada Labour Code, including giving employees the right to request such arrangements without fear of reprisal from employers.
As part of the review, the government conducted an online survey in May and June to get public feedback. It also plans to hold roundtable meetings on the issue across Canada.
While the code only covers federally regulated workplaces, the governing Liberal Party says it would like to “lead by example” and encourage workplaces across the country to provide more flexibility in how employees work. It has also said it would work with provincial and territorial governments interested in adding a right to request flexible work arrangements to their labour standards laws.
Federal Employment, Workforce Development and Labour Minister MaryAnn Mihychuk says flexible work arrangements are a way to help people better deal with the sometimes competing demands of work and family responsibilities.
“With the nature of work and society evolving, more and more Canadians are challenged in finding the right balance between their work and personal life,” Mihychuk said in releasing a discussion paper for the consultations.
Flexible Work Arrangements cites a Canadian Mental Health Association study showing 58 per cent of Canadians report “overload” due to the pressures associated with the different roles they play at work and at home.
“It’s time we gave Canadians the flexibility they need to balance their busy lives at home and at work,” Mihychuk added.
In addition to employees, employers could benefit from flexible work arrangements, she said.
“Flex work has a track record of benefiting businesses around the world. In the United Kingdom, research shows companies that embrace flex work found it easier to attract and keep top talent, giving them a competitive advantage. It also helps boost sales, employee job satisfaction, company innovation and productivity.”
The discussion paper lists current provisions in Canadian labour standards laws to help employees balance work and family life. It also looks at how some other countries have approached the topic and considers issues and challenges around giving employees a right to request flexible work arrangements, including how to best enforce it.
While federal and provincial/territorial labour standards laws currently allow for some flexibility at work through unpaid leaves for family responsibilities, time off in lieu of overtime pay and compressed work weeks, no Canadian jurisdiction gives employees the right to ask for flexible work arrangements such as job sharing, staggered start and finish times and working from home.
This contrasts with other countries, such as the United Kingdom, Australia and parts of the United States, where legislation allows employees to request flexible work and requires employers to consider the requests.
United Kingdom
In the United Kingdom (with some differences in Northern Ireland), all employees have the right to ask for a flexible working arrangement if they have worked for the same employer for at least 26 weeks. Employees must put the request in writing and can only apply once per year.
When applying, employees must provide details on the type of flexible work arrangement they want, explain how it might their affect their employer’s business and provide suggestions on how to deal with business impacts. Employers that receive a request must handle it in a “reasonable manner.”
The U.K. government says this includes considering the advantages and disadvantages of the request, meeting with the employee to discuss the issue and offering the employee an appeal process if the employer rejects the request.
Employers must generally make a decision about a request within three months of receiving it. If the employer agrees to the employee’s request, it must notify the employee in writing, indicating a start date for the flexible work arrangement. If an employer rejects an employee’s request, it must tell the employee why.
The U.K. government lists a number of legitimate reasons for turning down an application, including:
• the flexible work will result in extra costs that will hurt the employer
• the employer is unable to reorganize the work among other staff or recruit others to do the work
• flexible work will affect quality and performance
• the employer will not be able to meet customer demands
• there is a lack of work to do during the working times the employee requests
• the business is planning changes to the workforce.
U.K. law does not give employees a statutory right to appeal an employer’s decision, but the government says that if employers offer an appeal process, it could help to show that they dealt with the request in a reasonable manner.
This is important because if an employer does not handle the request reasonably or treats the employee poorly because of the request, the employee may complain to an independent employment tribunal. It can order an employer to pay compensation or damages or reinstate an employee who was terminated for making a request.
Australian
In Australia, not all employees may ask for flexible working arrangements. The right is limited to employees who are parents or have responsibility for children who are school age or younger, caregivers, disabled, 55 of years of age or older, or are experiencing domestic violence or providing care to an immediate family member suffering domestic violence.
In addition, employees must work for their employer for at least 12 months before they can make a request.
Employees must put their request for a flexible work arrangement in writing, explaining what changes they would like and why. Employers are required to respond to a request in writing within 21 days of receiving it.
Like the U.K., Australia requires employers who reject a request to tell the employee why. Employers may only refuse a request for “reasonable business grounds,” similar to the ones the U.K. lists.
Employees who do not agree with their employer’s reasons for refusing a request may complain to the country’s Fair Work Commission only if their employment contract permits it. The government says the commission cannot order an employer to agree to a flexible work arrangement (unless an employment contract allows it), but it can work with both sides to try to resolve concerns.
United States
Closer to home, both the state of Vermont and the city of San Francisco in the United States have provided employees with the right to request flexible work arrangements since 2014.
In Vermont, all employees have the right to ask for a flexible work arrangement for any reason. Employees may make the request verbally or in writing.
Employers are required to discuss and consider requests in “good faith” at least two times a year. Like the laws in the U.K. and Australia, the legislation in Vermont allows employers to consider business impacts when deciding whether to allow a request.
Employers have to notify employees of their decision, but the Vermont law does not specify a timeframe for informing employees.
In San Francisco, the right to request flexible work arrangements only applies to employees working for employers with at least 20 workers. To be eligible, the employees must be employed by their employer for at least six months and regularly work a minimum of eight hours per day.
Employees can only request a flexible work schedule for certain reasons in San Francisco, including to help with caregiving responsibilities for a child under 18 years old, for a family member with a serious health condition or for a parent who is 65 years of age or older.
Employees must put the request in writing, detailing the type of flexible work arrangement they want, how long it would last and how it is related to their caregiving responsibilities. The employer must meet with the employee to discuss the request within 21 days.
After the meeting, the employer has another 21 days to make a decision and notify the employee in writing. If an employer rejects a request, it must provide a “bona fide business reason” for it.
Bona fide business reasons allowed in San Francisco are similar to those permitted in the U.K. and Australia.
Employees are allowed to ask their employer to reconsider a decision and the employer must do so.
In the U.K., Australia, Vermont and San Francisco, employers can face penalties if they terminate, discriminate or otherwise retaliate against an employee who makes a request for a flexible work arrangement.
Mihychuk did not say whether the Canadian government favours a specific jurisdiction’s approach or prefers a blend of rules from each.
In coming months, it is expected the government will announce whether and how it will give federal workers a right to request flexible arrangements. Its decision and how provincial and territorial governments respond could have an impact on workplaces across the country.
