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DPA Commentary on New Tripartite Guidelines on FWA Requests

Last week, the government published new Tripartite Guidelines on Flexible Work Arrangement (FWA) Requests.

The guidelines present a much needed positive step in the right direction towards a flexible and inclusive workplace for all. At the same time, the guidelines present some gaps that we at DPA hope future amendments to the guidelines or future and/or upcoming legislation will be able to fill.

The following shall outline some of such positives and limitations, especially for the disability community, along with our overall takeaways on the new guidelines going forward.

What are the Tripartite Guidelines on FWA Requests?

Before we outline some of the potential positives and limitations of the guidelines, below is a bit more about the new guidelines.

The Tripartite Guidelines on FWA Requests are a recently published set of Tripartite guidelines that outlines the standards of how employees can formally request for FWAs and the overarching criteria that employers should use when evaluating formal FWA requests.

The new guidelines cover three types of FWAs:

  • Flexi-place: “where employees work flexibly from different locations aside from their usual office location (e.g. telecommuting, work-from-home)”
  • Flexi-load: “where employees work flexibly with different workloads and with commensurate remuneration (e.g. job sharing, part-time work)”
  • Flexi-time: “where employees work flexibly at different timings with no changes to total work hours and workload (e.g. flexi-hours, staggered hours, flexi-shift, compressed work schedule)”

Under the new guidelines, when submitting a formal request for one or more of the above types of FWAs, employees should communicate to the employer the following in writing:

  1. The date of the request
  2. The FWA requested for, including its expected frequency and duration
  3. Reason for the request
  4. Requested start date and end date (if relevant)

Under the new guidelines, the employer should have a clear process in place for employees to submit such formal FWA requests (i.e. via website portal, or via email, etc.). Additionally, under the new guidelines, the employer is required to assess each request based on “reasonable business grounds” which includes the following considerations/criteria:

  • “Cost”: whether the FWA will lead “to significant increase in cost burden to the employer.”
  • “Detrimental to productivity or output”: whether the FWA will lead “to significant decrease in the quantity or quality of individual, team or the organisation’s productivity or output, or negatively impacts the organisation’s ability to meet customer needs.”
  • “Feasibility or practicality”: whether the FWA is or is Not “feasible or impractical due to nature of job role, or there is no capacity to change other employees’ work arrangements, or requires the need to hire new employees, to accommodate the FWA request.”

Under the new guidelines, “unreasonable grounds” for rejecting FWA requests include the following:

  • “Management does not believe in FWAs.”
  • “Supervisor prefers to have direct sight of employee in office so that he/she can see if they are working, even though the employee has consistent satisfactory work performance.”
  • “It is the organisation’s tradition or custom to not have FWAs (e.g. staff have always been required to be in office during regular office hours, do not want to start allowing FWAs as other employees may request too).”

Under the new guidelines, employers should respond to each formal FWA request within two-months from the point the FWA was requested. The guidelines note that employers should provide a written decision on the request, and that employers should provide a written explanation if the request is denied. The guidelines also note that employers are “encouraged to discuss alternatives with the relevant employee(s) if the FWA request is rejected”.      

The new Tripartite Guidelines on FWA Requests take effect in December 2024.

Positives and Limitations of New Tripartite Guidelines on FWA Requests for the Disability Community

While the new guidelines present positives for the disability community, the guidelines also contain several limitations in its scope and potential efficacy in meeting the realities faced by the disability community. Below outlines such positives and limitations.

Positives:

There are two main positives that the new Tripartite guidelines presents for the disability community:

First, FWAs are very important to the disability community. One unintended consequence of the Covid-19 pandemic is that many workplaces resorted to FWAs such as remote working/work-from-home protocols.

However, as we have previously highlighted, including in a CNA commentary, persons with disabilities have been advocating for FWA protocols (along with other reasonable accommodations) long before the Covid-19 pandemic due to how many persons with disabilities require FWAs to participate in the workforce. For example, persons with disabilities often take longer to travel from point to point and often need a later starting time (made up for by ending work later) or often, due to their respective conditions, some persons with disabilities may perform their tasks more efficiently if they are allowed to work at particular flexible hours.  

As workplaces began adopting FWA protocols in the beginning of the pandemic, many persons with disabilities greatly welcomed the new shift to remote working and other FWA protocols, but at the same time, a number of persons with disabilities also expressed frustration regarding how several of the jobs and positions they were turned down for prior to the pandemic primarily because of FWA/work-from-home requests were made into FWA/work-from-home positions during the pandemic.

As Singapore slowly recovered from the pandemic, many workplaces also began to abandon FWA protocols, leaving many persons with disabilities concerned as to whether the unintended accessibility gains during the height of the Covid-19 years will also dissipate.   

The new Tripartite Guidelines on FWA Requests thus presents a much-needed opportunity to not only keep FWA protocols, but to also potentially mainstream such protocols in Singapore workplaces.

Second, the new Tripartite guidelines presents an avenue for persons with disabilities to request FWAs. A common theme from our research and conversations with persons with disabilities is that persons with disabilities are often concerned about even disclosing their need for reasonable accommodations – including FWAs. The new guidelines, if properly mainstreamed in Singapore workplaces, has the potential to relieve some of such concerns and lead to persons with disabilities feeling more comfortable to at least request for FWAs.

Limitations:

However, the new guidelines, while a very important step in the right direction, also have its limitations in addressing the realities and concerns of persons with disabilities.

First, the new guidelines do well to ensure that at the very least, the employee can request for FWAs. However, if the goal is to ensure that employees who need FWAs to participate in the workforce (such as persons with disabilities) can receive such FWAs that is both beneficial to employer and employee, then the new guidelines are potentially limited.

This is because, under the new guidelines, employers have to establish an avenue for FWA requests (i.e. clearly stating how employees can request FWAs), employers have to assess FWA requests according to a stated set of criteria, and employers have to respond to FWA requests within a two-month window and provide an explanation in writing as to the reason for rejecting an FWA request (if the FWA request was rejected). However, if the employer rejects an FWA request, there is no requirement under the new guidelines for the employer to explore alternative options that may still meet the needs of both employer and employee. Rather, under the new guidelines, employers are simply “encouraged” to “discuss alternatives with the relevant employee(s) if the FWA request is rejected”.

In our research and conversations with persons with disabilities, we often receive accounts of rather errant employers that are not easily assuaged, and where an “encouragement” approach often does not lead such employers to do the right thing in meeting the concerns of their employees.

Based on our research and conversations with persons with disabilities, we are concerned that there is still a likelihood that the employer will refuse to have a dialogue to discuss FWA alternatives with the employee if the initial FWA request was rejected. The new guidelines thus potentially lack teeth in ensuring this very important step in the FWA request process.

Second, and on a related note, without the requirement for the employer to engage with the employee on an FWA option that could mutually benefit both employer and employee, it leaves the discretion completely up to the employer in the assessment of FWA requests. More notably, while employers are required under the new guidelines to provide an explanation for the rejection of an FWA request (if the FWA request is rejected), the new guidelines do not specify on the nature of the explanation other than the overarching criteria (noted above). For instance, one of the criteria is that the FWA has to be feasible and practical – according to the guidelines, this depends on nature of job role, or whether there is capacity to change other employees’ work arrangements, or whether there is the requirement for the need to hire new employees, to accommodate the FWA request. However, if the employer rejects an FWA request and merely cites “unfeasible and unpractical due to nature of job role” as the explanation, the lack of a requirement for the employer to discuss alternative FWA options with the employee means that the employer is technically already fulfilling what is required of them under the new guidelines – even if the assessment by the employer is incorrect.

 We raise this point because, based on our research and conversations with persons with disabilities, inaccurate and often time prejudicial biases are still prevalent amongst employers and Singapore workplaces. Case in point being the perception of FWAs prior to the pandemic. As outlined, prior to the pandemic, persons with disabilities would get rejected from jobs due to requesting FWAs (the same jobs that would be made into FWA positions during the pandemic); when persons with disabilities enquired further, they were often informed that it was because the hiring manager thought that their FWA request was unpractical due to the nature of the job. However, the fact that the position was turned into an FWA position during the pandemic shows that it was not necessarily impracticality or unfeasibility that was the reason for the FWA request rejection. In short, there are often aspects of a job that seem unmodifiable from the perspective of a non-disabled employer, but often it is not because of the nature of the job, but rather because of employers holding biased perceptions of the nature of the job that often results in negative consequences for persons with disabilities.     

However, with a lack of a requirement for employers to explore FWA alternatives if an FWA request is rejected, means that not only will the discretion be left completely to the employer, but it also means that there is a lack of a check and balance on any potential prejudicial or even discriminatory attitudes in an employer’s assessment of an FWA request.  

Third, it is important to note that while FWAs benefit many persons with disabilities, FWAs are also just one form of reasonable accommodations.

In the context of employment, reasonable accommodations are essential and necessary modifications or adjustments to a policy or practice, not posing an undue burden, that enable persons with disabilities to perform the tasks of a given job. There are a number of reasonable accommodations that are important to persons with disabilities that will not be covered by the new Tripartite guidelines on FWA Requests. Examples include (but are not limited to): utilisation of assistive technologies, allowance of various means of communication, allowance of alternative means of presenting data or instructions, workplace modification such as ramps – amongst others.

It is important to emphasise this point as to those who may not be familiar with the realities of persons with disabilities or varieties of reasonable accommodations, the new guidelines on FWAs may seem that it will cover most workplace modifications, when in reality they will not.        

Overall Takeaways/Going Forward

The new Tripartite Guidelines on FWA Requests present a positive step towards a fairer system that has the potential to mainstream FWAs which are very important to the disability community.

However, to better ensure that those who most need FWAs, such as persons with disabilities, receive FWAs, there might be the need for more comprehensive measures. Namely, DPA hopes that the upcoming Workplace Fairness Legislation (WFL) – Singapore’s first workplace anti-discrimination legislation – set to be debated in Parliament later this year, will include comprehensive provisions that we at DPA have recommended that will address some of the afore- mentioned gaps as outlined.

For example, enshrining reasonable accommodation provisions in the WFL will better ensure that individuals who need such reasonable accommodations – including FWAs – will be able to receive them. At DPA, we have been making the case that reasonable accommodations are practical and that there are structured ways to assess what counts as “reasonable” in assessing accommodation requests – hence not posing an undue burden, and have conveyed such recommendations to the Tripartite Committee on Workplace Fairness, and in other forums such as webinars and publications over the last two years. However, in their final report on the WFL, the Tripartite Committee on Workplace Fairness noted that what counts as reasonable can be difficult to define or assess clearly – leading the Tripartite Committee to not recommend including reasonable accommodation provisions in the upcoming WFL.    

Yet, as the new Tripartite Guidelines on FWA Requests themselves illustrate, there are ways, and criteria that can be in place, to assist in assessing what constitutes as “reasonable” in assessing accommodations such as FWAs.

DPA has recommended similar, if not potentially more tangible, criteria, based on international standards such as that by the United Nations Committee on the Rights of Persons with Disabilities,  that the upcoming WFL can incorporate to assist in determining what is considered “reasonable” in accommodation requests – providing a practical and useful guide for employers in not only accommodations pertaining to FWAs, but also in other non-FWA-related accommodation requests. Such criteria we have recommended include factors such as availability of funding (if the accommodation requires financial costs), availability of technical assistance support in the implementation of the accommodation, and size of the company/organisation.   

Additionally, in our recommendations on the WFL, we have recommended that what is known in other jurisdictions as the interactive process be required in Singapore workplaces. In other countries, the interactive process refers to a collaborative dialogue between an employer and an employee with a disability to determine reasonable accommodations required and to develop a plan in determining the effectiveness of the accommodation. If an accommodation is deemed unreasonable, the interactive process is also where the employer needs to explain why, and where the employer should actively discuss with the employee alternative accommodation options in a manner that will benefit both employer and employee. This at the very least gives the employee more of a say in arriving at a decision on accommodation requests.

We have also recommended that the WFL cover multiple and often intersecting forms of discrimination to better assist in alerting employers to some of the important issues and attitudinal barriers that persons with disabilities face in the workplace.   

[For an elaboration of our above recommendations and our other recommendations on the WFL, check out our recently published report on achieving fairness in employment for persons with disabilities. (An explanation and elaboration of the above recommendations in particular can be found in Sections 1.1.1 and 1.1.2 of the report.)]

We believe that such recommendations will assist in building off the important Tripartite Guidelines on FWA Requests in addressing the afore-outlined limitations.

Firstly, requiring the interactive process will ensure that the very important step of the FWA request where employers discuss alternative FWA options with employees are assured (if the original FWA request is denied). Secondly, by including multiple and often intersecting forms of discrimination in the WFL, employers will not only be alerted on the important issues faced by persons with disabilities, but it will also more effectively assist in targeting any direct or indirect discriminatory barriers in the workplace – leading to fairer assessments of FWA requests. Thirdly, by including reasonable accommodation provisions in the upcoming WFL, persons with disabilities will have better access to not only the important reasonable accommodation of FWAs, but also other important reasonable accommodations that are essential and necessary for persons with disabilities to participate in the workplace. As outlined, reasonable accommodations by definition, do not pose an undue burden and hence, we believe that such recommendations will enable employees who most need FWAs – such as employees with disabilities – in not only requesting but also receiving both FWAs and other important accommodations in a manner that benefits both employer and employee.

DPA is encouraged by the establishment of the new Tripartite Guidelines on FWA Requests, and we hope that such points can build off this important step of the new guidelines.

In addition to our on-going efforts in collaborating with existing partners, DPA continues to invite any new collaborations with individuals and groups from all sectors and the general public towards addressing such objectives.