The Workflex in the 21st Century Act: Workflex Options

by Michael Haberman on February 8, 2018 · 0 comments


Yesterday I covered the compensable time options of the Workflex Act, in other words, the paid time off option. However, the Act is more than just a PTO program, it also includes, in fact, requires, options to have employees have the ability to have some flexibility in their work schedules.

Possible options

All employers involved in the program must offer to each employee at least one of the following options:

  • Biweekly work program
  • Compressed work schedule program
  • Telework program
  • Job sharing
  • Flexible scheduling
  • Predictable scheduling

Employers in the program can offer one or some combination of these programs to their employees. Remember, however, this is a voluntary participation program, no company is being forced to participate, unlike some state programs. However, once a company participates the rules have to be followed.

Employee eligibility

All employees are eligible for the program once they have worked for their employer for 12 months and at least 1,000 hours. Thus, when a company puts the program in place, if all employees have met this requirement they will automatically be covered. New employees will have to meet the eligibility requirements, though an employer may choose to all employees to participate sooner. Unionized employees must participate according to the terms and conditions specified in their union contract.

All participating employees must sign a written agreement with the employer that describes the workflex options that the employee is eligible for, which ones they will be participating in, and under what work schedule they will be working. This work agreement must be entered into knowingly, voluntarily, and in advance of actual participation in the program.

Explanation of the options

The purpose of the options is to actually put some flexibility into an employee’s work schedule. These include:

  • A bi-weekly program, designed for nonexempt employees, where they this program may not exceed 80 hours in a two week period. As an example, If the employee works 50 hours in the first week, they can only work 30 hours in the second week. In that first week, they will have to be paid overtime for the 10 hours over 40 in the week, as per FLSA regulations, but are only paid straight time for the second week of 30 hours. If this is not workable, employers may suspend this option with a 30-day notice to the participating employees.
  • Compressed work schedules- Many companies already do this type of scheduling, utilizing four 10 hour days, instead of five 8 hour days. To utilize this, there does have to be a written agreement, signed by the employee prior to using this option. As above, this arrangement can be canceled with a 30-day notice.
  • Job sharing
  • Flexible scheduling
  • Predictable scheduling

Relationship to other laws

There are two major laws that the Workflex Act must coordinate with in order to be effective. The first of these is the Family and Medical Leave Act (FMLA). Since the FMLA allows employers to have employees exhaust all paid leave in conjunction with taking FMLA time that ability does not disappear under the Workflex Act. Employers may still require employees take paid leave to cover their FMLA absences. But, just like the FMLA, any employee taking that time under a QFWA, must still be able to return to their job or one that is substantially equivalent. If they take more than 12 weeks of compensable leave to cover an FMLA situation they may not be entitled to reinstatement, as is current under the FMLA.

The second area deals with the ADA and the Rehabilitation Act. There is no alteration of an employer’s responsibility in relation to these two laws.

Coming tomorrow: A future look at Workflex


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