Company policies should not dilute legal entitlements.

What you need to know about workplace adjustments and flexible work arrangements if you're a parent, someone with a disability or caring for someone with a disability.

Flexible work is a hot topic as the school year starts, and organisations continue to wind back hybrid work policies. These changes disproportionately affect mothers, disabled people, and carers.

It’s often misunderstood how flexible work can be accessed more quickly and with greater certainty as a workplace adjustment. When tied to disability or caring responsibilities, flexible work can mean the difference between employment and underemployment—or even unemployment—for mothers, carers and people with disability.

In this edition, we explore:

1. Flexible work in general.
2. Flexible work as a reasonable adjustment.
3. Legal protections for parents, people with disabilities, and carers.
4. Nuance to empower you to understand your rights.

Caveat: This is a high-level overview based on Australian workplaces. Your circumstances and jurisdiction may vary. Please seek advice specific to your situation, in Australia or elsewhere.

Flexible work is nothing new.

Flexible work means just that: flexibility in work location, roster, hours, or days of work. During COVID, many organisations adopted hybrid work policies, expecting people to work from home.

Even before COVID, many already used flexible work to juggle personal responsibilities. For people with disabilities and carers, flexible work has long been a crucial workplace adjustment. Even with long-standing legal entitlements, access to flexibility was a cultural and practical challenge.

When hybrid work became widespread, many of the barriers to accessing flexibility dissolved. We collectively worked better, balanced life better, and saw record-low unemployment rates in the disability community. The changes were transformational. Flexible work became an enabler for participation.

And now? Many of us are entitled to retain the flexibility we experienced during COVID—especially those of us in the disability community. Even as employers wind back hybrid policies and increase in office presence.

Winding Back Hybrid Work Policies—and Winding Up a Rant

Through 2024, we’ve seen many organisations wind back hybrid work policies.

Somewhat controversially for a disability advocate, I don’t inherently mind these changes.

Except.

The thing is, even before COVID, many groups—parents, carers, and people with disabilities—already accessed flexible work options. COVID didn’t create flexible work; it just normalised it for everyone. And now we have proof: flexible work delivers unaffected productivity and improved quality of life. COVID gave the disability community the gift of knowledge. We now know not only what we’re entitled to but how it benefits our work and life.

My issue isn’t about the broad return to office—it’s about how these changes are being implemented and their disproportionate impact on the disability community.

It’s when the reduction or removal of hybrid work policies is enacted without considering those still entitled to flexible work. All too often, organisations have not planned for these cases. Under-resourced or under-trained staff simply tow the company line with blinkers on. Worse, some processes deliberately steer people away from accessing their entitlements, making it difficult for well-meaning leaders to support their teams.

And then there’s this:?

I am nothing short of enraged when I hear experiences of organisations deliberately hiding entitlements or creating onerous processes as some sort of ableist way to manage the risk of misuse of workplace adjustments by non-disabled people. This kind of ableist gatekeeping is often justified as a way to deal with deceitful employees. But here’s the thing: there will always be individuals who misuse policies and processes. The disabled community are not, and should not, be a way to catch and manage poor behaviour. Disabled employees are not a tool for managing misconduct. That’s what performance management is for.

Rant over.

(if you have ever had a pint at the pub with me, you know exactly how that monologue rant would be delivered)

Hold tight to your rights.

An empowered disability community changes outcomes by bringing leaders and employees together and standing up for ourselves—it has changed my life.

Company policies do not dilute your legal entitlements.?

Businesses can change hybrid work policies, but they must still honour employment obligations. Learn your rights, ask for what you need, and seek support if necessary.

And if you’re grappling with the term “disability”? Hold tight to your rights and worry less about the language. Internalised ableism or outdated terms shouldn’t stand in the way of accessing what you need.

To every leader reading this: Thank you for learning, unlearning, and advocating for others.

Change happens through informed leaders and empowered people. Together, we can create workplaces where everyone belongs.

Three laws to know about

1. Flexible Work and Fair Work

Flexible working arrangements under the Fair Work Act in Australia:

• Flexible work is an entitlement after 12 months of continuous employment (some companies waive this requirement).
• Employers must respond to requests within 21 days.
• If declining a request, they must show evidence of understanding your circumstances and demonstrate efforts to find a solution.
• It's no longer lawful to simply say "no" without due process.

“Full-time and part-time employees can request flexible work arrangements if they’ve worked with the same employer for at least 12 months and they:

• are the parent, or have responsibility for the care, of a child who is school aged or younger
• are a carer (under the Carer Recognition Act 2010)
• are a person with disability
• are 55 or older
• are pregnant
• are experiencing family and domestic violence, or
• provide care or support to an immediate family or household member who is experiencing family and domestic violence.”

2. Disability Discrimination Act (DDA)

The DDA provides entitlements for carers and people with disabilities, distinct from the Fair Work Act:

• Employers must make reasonable adjustments to work conditions, which are called reasonable workplace adjustments, reasonable adjustments, or workplace adjustments.
• Adjustments can include changes to hours, rosters, location, or days of work.
• The adjustment has to be related to your disability or caring responsibilities and to ensure someone can do their job.?
• Available to employees with a disability and employees who are carers of someone with a disability
• Unlike Fair Work, there’s no minimum employment period to access these adjustments, in fact, they are required during recruitment.

Two reasons to decline a DDA adjustment request

1. Inherent requirement of the job. A Surgeon needs to be in surgery to perform surgery, do they need to be in the hospital to write notes? Prepare for surgery? Maybe not.
2. Unjustifiable hardship to the enterprise. That might be cost or risk. It's not “we didn't budget for it” or “but then we might need to provide it to others”. It not “that software isn’t on our approved list” or “that needs to be approved by HR / IT / People leader”

To stay safe consider asking to start working flexibly while the process runs its course. The threshold to decline is higher than under Fair Work.

Medical evidence is not automatically required.

Employers don’t automatically have the right to medical evidence under the DDA. Collecting medical evidence heightens discrimination risk, and the act of asking could also be considered discriminatory.?

If it’s requested and you feel uncomfortable, clarify the purpose. Consider asking,?“How will this information change the outcome of my request?”. Maybe even get curious about which reason to decline it will inform.?“Could you please clarify the purpose of providing this information, specifically which of the two reasons to decline a DDA request this information will be used to inform?”

3. Privacy Act

The Privacy Act governs the collection, use, storage, and disclosure of personal information and includes a set of Australian Privacy Principles, which outline specific requirements for handling personal information. Relevant to flexible work and workplace adjustments?

1. Collecting only what is needed to assess the request.
2. Medical information collected for workplace adjustments must be treated as confidential. That does not automatically give a manager or others access to that information. If additional people are needed to review - remove personal information such as names and share the relevant information only.?

Employers must collect the minimum necessary medical information, if any, for adjustments and ensure it is only shared with consent or when strictly required for legitimate purposes. Misuse or over-collection of medical information could breach both the Privacy Act and anti-discrimination laws.

Final Considerations

Above all stay safe and advocate to the extent you feel able.

Nuance, I’ve come to understand

• Seek help: Employee Resource Groups, Unions, Advocacy organisations, and lawyers. You are not alone.
• Specify your request is a Disability Discrimination Act request
• Medical evidence is not always required: Employers don’t automatically have the right to demand medical evidence under the DDA. If it’s requested, ensure the purpose is clear or push back if you feel uncomfortable.
• Manager involvement is limited: Managers should only be involved where their input is relevant. Trust goes both ways and may not be there from day one.?
• Protect your privacy: Over-sharing medical details can increase your risk of discrimination. Share only what’s necessary for your request and only with those with decision-making authority.
• Ask for clarity in writing: If your request is declined - or you suspect the information request will be used to be declined - ask for the reasons in writing. Ensure they meet the high bar for declining under the DDA.

Unlearning Prompts

We all want to do right by the people we spend our working lives with. Consider unlearning?

• what adjustments carers and disabled people can expect
• what people leaders can accept (and cant decline)
• why information is being asked for
• who information is being shared
• how you can continue to support workplace inclusion through turbulent times

Join the unlearning.

You can subscribe to learn with me. I'll share what I learn (and unlearn) about accessibility, inclusion and disability. Together, we will consider the implications for impactful commercial and human outcomes.