Bringing workers back to the office? Here's how to avoid a lawsuit

Return-to-office mandates aren't popular with workers for a list of reasons, from child care stress to commuting expenses. But likeability isn't the only thing employers have to worry about when it comes to RTO.

Inconsistent RTO policies could create the perfect legal storm, with employers running the risk of incurring discrimination, harassment and wrongful termination-related lawsuits, underlines Lisa Koblin, partner at law firm Saul Ewing. Employers have to pay special attention to accommodation requests that come post-RTO and ensure they're compliant with the Americans with Disabilities Act, which prohibits discrimination against workers with physical or mental impairment. Notably, remote work is the most common accommodation request, according to AbsenceSoft.  

"If you have a policy where you're requiring more in-person work or a full return to work, and you receive a request from an employee that they need to work remotely due to a medical issue, then you want to think about it as a request for an accommodation under the ADA," says Koblin. "You have to obtain information from employees in terms of what accommodations are needed and how their condition impacts their ability to do their job."

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For example, an employee may argue that due to poor mental health, they need more flexibility in the form of working from home. If a healthcare professional is able to outline why that employee needs this accommodation, then there's a good chance their request is valid. 

"Each request should be viewed on a case-by-case basis, depending on the employee's position, job duties and the duration of the accommodation," says Koblin. "There are circumstances where remote work is a reasonable accommodation, so long as it doesn't cause undue hardship for the employer."

Given that most knowledge workers have been remote to some extent for the last five years, it's unlikely that employers can argue work-from-home causes undue hardship. 

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Koblin also reminds employers that RTO can bring an increase in harassment claims. It's vital that leaders review their employee conduct and harassment policies and provide training modules that not only review what harassment looks like, but how to report it through the proper channels. 

"Naturally, if you have more people regularly working together in person, potential issues could come up between employees," says Koblin. "Make sure managers are aware of who they should report to if they become aware of a concern, whether they're involved or not."

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Performance reviews and disciplinary actions based on office attendance could be dicey for employers as well. Koblin notes that if RTO expectations were not clearly communicated, or if exceptions were made inconsistently, workers may be able to make a retaliation case — retaliation is defined as an employer punishing an employee for engaging in a protected activity. If a worker is fired, they could argue it's wrongful termination. 

Koblin advises employers to review their RTO policies and be open to revisions. Guidelines that promote and expand flexibility while clearly stating in-office expectations can go a long way. 

"In some cases, you need people to come together to get work done," says Koblin. "But you can strike a balance so you don't have issues of potential discrimination, harassment or unforeseen turnover, which is unavoidable otherwise."