Flexible-working requests in the United States
Reviewed by Mellow Editorial Team, HR & payroll content team
Flexible-working requests in the US have no single federal framework governing them. Employers are largely free to set their own policies, but a growing patchwork of state and local laws, plus existing federal protections, means the answer is more nuanced than "do whatever you like."
What the federal law actually says
There is no federal statute that gives employees a general right to request flexible working or requires employers to consider such requests. That is a meaningful difference from countries like the UK, where a statutory right to request exists.
What federal law does cover is narrower but still relevant:
- FMLA (Family and Medical Leave Act) gives eligible employees at covered employers up to 12 weeks of unpaid, job-protected leave per year for qualifying family or medical reasons. Intermittent FMLA leave is a form of schedule flexibility, and employers generally cannot deny it when the employee qualifies.
- ADA (Americans with Disabilities Act) requires covered employers to provide reasonable accommodations to employees with qualifying disabilities. A modified schedule, reduced hours, or remote work can all qualify as reasonable accommodations. Refusing a schedule change without exploring alternatives can expose an employer to an ADA claim.
- Pregnancy Accommodation — the Pregnant Workers Fairness Act (PWFA), which took effect in 2023, requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related conditions. Schedule adjustments fall within scope.
Outside these protections, a standard flexible-working request has no federal procedural requirements attached to it.
State and local rules that change the picture
Several jurisdictions have moved ahead of federal law. A few examples:
- San Francisco has a local ordinance giving employees the right to request a flexible or predictable work schedule. Employers must meet with the employee and provide a written response.
- Vermont gives employees a similar right to request after six months of employment.
- Oregon's predictive scheduling law applies to larger retail, food service, and hospitality employers and sets rules around advance notice of schedules, not flexible-working requests per se, but it shapes how shifts can be changed.
This list is not exhaustive. If you operate in multiple states or cities, check local ordinances individually. The landscape changes frequently.
Building a practical flexible-working policy
Even where there is no legal obligation to accept a request, having a clear internal process protects you and sets fair expectations. A workable policy typically covers:
Eligibility. Define who can request flexibility — by role, tenure, or both. Some roles genuinely cannot be performed remotely or on compressed schedules; acknowledge that upfront rather than deciding case by case.
How to request. Ask employees to submit requests in writing, describing the proposed arrangement, the start date, and how they believe it will affect their work. A written request creates a record and encourages employees to think through practicalities.
How you will respond. Set a reasonable timeframe — 14 to 28 days is common. Outline the grounds on which you may decline: operational requirements, customer-facing hours, team coordination, cost, or inability to redistribute work. Be consistent; inconsistent decisions on similar requests invite discrimination claims.
Trial periods. A time-limited trial (say, 90 days) lets both sides assess whether the arrangement works before making it permanent. Build in a review date and criteria.
Reversibility. Specify whether a flexible arrangement can be revoked, and under what circumstances, and with how much notice.
Avoiding discrimination risk
A flexible-working policy that looks neutral can still produce discriminatory outcomes if it is applied inconsistently. Common risk areas:
- Approving requests from some groups (say, employees without caregiving responsibilities) while denying similar requests from parents or employees with disabilities, without a documented operational reason.
- Applying stricter scrutiny to requests from one demographic.
- Retaliating against an employee for making a request, even when you deny it lawfully.
Document your reasoning for each decision. If you deny a request, explain why in writing. If an accommodation request is tied to a disability or pregnancy, consult HR counsel before responding — these intersect with ADA and PWFA obligations, not just general policy.
Remote work as a specific case
Remote and hybrid arrangements are the most common flexible-working requests today. They raise additional considerations beyond scheduling:
- State tax and registration obligations. A remote employee working from a state where you have no other presence can create payroll tax obligations and sometimes corporate nexus in that state. You generally need to withhold that state's income tax and register accordingly. See how Mellow runs payroll across six countries for a sense of how multi-jurisdiction payroll works in practice.
- Workers' compensation. Remote employees are still covered. Your policy should define the employee's home workspace and what constitutes working hours.
- Expense reimbursement. Some states — California notably — require employers to reimburse necessary business expenses. A remote worker's internet and phone costs may qualify.
A clear remote-work agreement, separate from the general flexible-working policy, is worth the effort.
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