Employers’ return-to-office schemes may come with legal pitfalls

Are employers walking into a legal storm by enforcing rigid return-to-office mandates? At a time when many employers are trying to get their workers back into the office, one of the most pressing issues is disability discrimination.

With many employees having worked remotely for more than two years without a dip in productivity or performance, employers face a challenging legal landscape when justifying the need for in-person work.

Brandalyn Bickner, a spokesperson for the Equal Employment Opportunity Commission (EEOC), said in a statement this fall that the Americans with Disabilities Act’s (ADA) “reasonable accommodation” obligation includes “modifying workplace policies” and “might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.”

In a noteworthy legal settlement, a facility management company agreed to pay $47,500 to settle an EEOC complaint for violating the ADA. The case, EEOC v. ISS Facility Services, Inc., involved the company’s refusal to allow a disabled employee at high risk for COVID-19 to work part-time from home, despite previously allowing a rotating schedule during the pandemic. The company’s denial of the employee’s request for accommodation, followed by her termination, was deemed a violation of the ADA.

The settlement also required the company to permit EEOC monitoring of future accommodation requests. This case emphasizes the importance of ADA compliance and the need for employers to be flexible and consistent in accommodating employees, especially in changing work environments.

Mental health issues have become increasingly prominent in the context of workplace accommodations. The pandemic led to a 25 percent increase in cases of depression and anxiety in the U.S., underscoring the need for employers to consider remote work as a reasonable accommodation.

And companies are facing a rise in mental health disability discrimination complaints from employees who view remote work as a reasonable accommodation. The EEOC has observed a 16 percent increase in such charges between 2021 and 2022, particularly for such conditions as anxiety, depression and post-traumatic stress syndrome.

This trend is indicative of a broader challenge where mental health disorders have become a prominent reason for disability complaints. Employers who fail to make an effort to accommodate such requests risk facing EEOC actions. In September, the agency filed a complaint against a Georgia company after it fired a marketing manager who had requested to work remotely three days a week to accommodate anxiety.

Older workers are particularly affected by return-to-office mandates. A recent survey from Carewell illuminated this trend, revealing that as many as 25 percent of workers over age 50 are contemplating retirement more seriously in light of return-to-office mandates. This statistic is particularly striking when compared to the 43 percent who expressed a reduced likelihood of retiring if given the option to work remotely.

The resistance to return-to-office mandates among older workers isn’t just a matter of preference. Rather, it brings to the forefront concerns about age discrimination. If return-to-office policies disproportionately affect older employees, either by forcing them into early retirement or by making their work conditions less favorable compared to their younger counterparts, employers could face age discrimination claims.

The legal risks associated with return-to-office policies are further highlighted by their effect on working parents, especially mothers. Studies have consistently shown that working mothers are disproportionately affected by the lack of flexibility in work arrangements. The data reveal that nearly twice as many working mothers as fathers have considered leaving their jobs due to the stress associated with childcare.

This statistic is alarming and points towards a deep-seated issue in the current work environment where the needs of working mothers are not adequately accommodated. Moreover, 30 percent of mothers, compared to 17 percent of fathers, report difficulties in finding working hours that align with their childcare needs. Thus, return-to-office mandates bring with them a potential for complaints about indirect discrimination and unequal treatment of working parents.

The evolving legal landscape, shaped by advancements in legal technology and updated guidelines on harassment, presents new challenges and complexities for employers, particularly in the context of remote and hybrid work environments. The EEOC has recently published important updates in its guidance that addresses the nuances of remote work and discrimination.

One of the key aspects of this new EEOC guidance is the clarification it provides on legal standards and employer liability in the context of remote work. As video conferencing becomes a staple in remote and hybrid work models, the EEOC highlighted how employers must establish clear guidelines to prevent and address harassment that may occur in these virtual settings. Similarly, guidance on lactation accommodations reflects an understanding of the changing needs of working parents, particularly mothers, in remote work scenarios.

Furthermore, the EEOC emphasizes the importance of training for employees on these new aspects of workplace conduct. Training programs should be updated to include scenarios and examples relevant to remote and hybrid work environments, ensuring that employees understand their rights and responsibilities under the new guidelines. This training should also cover how to report harassment in remote work settings and the resources available to employees who experience or witness such behavior.

In other words, inflexible return-to-office mandates not only risk alienating key segments of the workforce, but also invite a host of legal challenges. By embracing flexibility and inclusivity in return-to-office strategies, employers can mitigate legal risks, foster employee engagement, and build a more inclusive and productive work environment.

Dr. Gleb Tsipursky is CEO of the hybrid work consultancy Disaster Avoidance Experts and author of “Returning to the Office and Leading Hybrid and Remote Teams.“