In the first part of this 2 part blog post, we looked at how your clients’ decision to implement a workplace flexibility program could affect their EPLI risks. EPLI Coverage is an essential part of protecting ones business from claims of discrimination and wrongful termination that can come from employees who either perceive these issues or are victim to these issues. While EPLI Coverage will provide the financial protection your client needs to recover from a claim, it’s always best for employers to know their risks and how they can potentially avoid them.
Workplace flexibility is a program that has been strongly backed by the U.S. Equal Employment Opportunity Commission (EEOC), however despite their support, issues still arise when it comes to EPLI risks. Three federal laws that have or could have adverse reactions with a workplace flexibility program are the FMLA, the ADA, and the FLSA.
The federal Family and Medical Leave Act (FMLA) requires that covered employers provide unpaid, job-protected leave to eligible employees for specified family or medical reasons. Since some employee requests for work/life flexibility, such as modified hours or a compressed work week, might be prompted by medical or family concerns, it’s important for employers to anticipate some overlap between flexible work arrangements and the FMLA. How can employers avoid an EPLI Coverage exposure in this case? If the employee is in fact requesting a workplace flexibility program, your client may ask if it’s for a medical or family reason, and should submit as a FMLA request if so.
The Americans with Disabilities Act (ADA, recently amended by the Americans with Disabilities Amendments Act) generally prohibits discrimination against applicants or employees with defined disabilities and requires employers to provide reasonable accommodations where requested, except where doing so would cause undue hardship to the employer. If your client has any reason to suspect that an employee is requesting a flexible work arrangement due to a personal medical or other covered condition, they should analyze the request as one for a reasonable accommodation under the ADA.
Another federal law for your clients to be concerned with is the Fair Labor Standards Act (FLSA). Compressed work weeks, for example four 10-hour days, might present overtime issues under some state laws, requiring employers to seek legal counsel should they decide to implement such a program. Your clients should also establish a process to maintain accurate time records for telecommuters, including strong policies requiring that employees report all time spent on work-related duties, and prohibiting “off-the-clock” work.
At PL Risk Advisors, we understand the unique exposures that each of your clients face. We know that with increases pressure and an aggressively proactive stance by the EEOC, businesses are increasingly facing allegations from employees for racial and religious discrimination, sexual harassment, FMLA violations, and more. Employment Practices Liability Insurance (EPLI Coverage) should be part of any employer’s comprehensive insurance program. To learn more about what we offer, please contact us at (855) 403-5982.
