While it appears that, in the aftermath of the pandemic, the management of many organisations has moved, perhaps instinctually, to a blanket policy of return to office, in fact the HR operating terrain has changed forever. The issues are at once social, moral, and – not least – legal.
Are employers walking into a legal storm by enforcing rigid return-to-office (RTO) mandates? The post-pandemic era presents a unique challenge as employers grapple with shifting workforce dynamics. The insistence on a full return to the office, without considering individual circumstances, could lead to a surge in legal issues, particularly discrimination claims. This concern is not mere speculation; it’s a reality backed by a significant uptick in workforce discrimination charges.
The Disability Discrimination Dilemma
One of the most pressing issues is disability discrimination. With many employees having worked remotely for over two years without a dip in productivity or performance, employers face a challenging legal landscape when justifying the need for in-person work.
Thomas Foley, executive director of the National Disability Institute, noted that he has “great concerns” for RTO for people with disabilities, including transportation to and from work, workplace accessibility, and the potential to encounter micro or larger aggressions. Brandalyn Bickner, a spokesperson for the Equal Employment Opportunity Commission (EEOC), said in a statement that the reasonable-accommodation obligation mandated by the Americans with Disabilities Act (ADA) includes “modifying workplace policies” and “might require an employer to waive certain eligibility requirements or otherwise modify its telework programme for someone with a disability who needs to work at home”.
In a notable legal settlement, a facility management company agreed to pay $47,500 to settle an EEOC lawsuit 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 emphasises the importance of ADA compliance and the need for employers to be flexible and consistent in accommodating employees, especially in changing work environments.
In a lawsuit against Electric Boat Corp., Zacchery Belval, a resident of Enfield, Connecticut, claimed discrimination for the company’s failure to provide reasonable accommodations under the ADA and the Connecticut Fair Employment Practices Act. Belval, who has multiple health issues, including a heart defect and severe anxiety, argued he was at increased risk for COVID-19. He had worked from home during the pandemic, but faced challenges when the company encouraged a return to the office. The physical demands of returning and poor office conditions led him to seek continued remote work, which the company partially granted. However, Belval deemed this accommodation insufficient. When he did not return to work under these conditions, Electric Boat considered him resigned. This case underscores the complexities that employers face in implementing return-to-office policies while also needing to provide ADA-compliant reasonable accommodations, particularly for employees with significant health risks.
Mental health issues have become increasingly prominent in the context of workplace accommodation. The pandemic has led to a 25 per cent increase in cases of depression and anxiety in the US, underscoring the need for employers to consider remote work as a reasonable accommodation. 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 per cent increase in such charges between 2021 and 2022, particularly for conditions like 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 requested to work remotely three days a week to accommodate anxiety.
Impact on Older Workers
Older workers are particularly impacted by RTO mandates. A recent survey from Carewell has illuminated this trend, revealing that as many as 25 per cent of workers over the age of 50 are contemplating retirement more seriously in light of RTO mandates. This statistic is particularly striking when compared to the 43 per cent who expressed a reduced likelihood of retiring if given the option to work remotely. Such figures not only highlight the preferences of older workers but also underscore the potential unintended consequences of inflexible RTO policies.
The resistance to RTO mandates among older workers isn’t just a matter of preference; it brings to the forefront concerns about age discrimination. If RTO policies disproportionately affect older employees, either by forcing them into early retirement or by making their work conditions less favourable compared to their younger counterparts, employers could face age discrimination claims. These concerns are amplified by the fact that losing older workers en masse could mean a significant loss of experience, skills, and institutional knowledge for organisations.
Employers, therefore, need to carefully consider the impact of RTO mandates on their older workforce. Offering flexibility, whether through remote work options or hybrid models, could be crucial in retaining older employees. Additionally, engaging in dialogue with this segment of the workforce to understand their specific needs and concerns can help in formulating policies that are inclusive and considerate of all age groups.
Working Parents and Gender Disparities
The legal risks associated with RTO policies are further highlighted by their impact on working parents, especially mothers. The transition from remote to office work brings into sharp focus the balancing act that working parents, especially mothers, must perform between their professional responsibilities and childcare obligations. The legal implications of these policies stem from the potential for indirect discrimination and unequal treatment of working parents.
Studies have consistently shown that working mothers are disproportionately affected by the lack of flexibility in work arrangements. The data reveals 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. Furthermore, 30 per cent of mothers, compared to 17 per cent of fathers, report difficulties in finding working hours that align with their childcare needs. This disparity not only highlights the challenges faced by working mothers but also raises concerns about potential gender discrimination in the workplace.
The lack of flexible working options can exacerbate existing inequalities. Mothers often bear a larger share of domestic and childcare responsibilities, and inflexible work schedules can intensify these demands, leading to increased stress and potential burnout. This situation is particularly challenging for single mothers or those without access to external childcare support. The inability to balance these demands can lead to mothers’ being forced to choose between their careers and their family responsibilities, a choice that fathers are less likely to face to the same extent.
From a legal standpoint, these disparities could give rise to discrimination claims under various employment laws. Employers who fail to provide reasonable accommodations or flexibility to working parents, particularly mothers, might be seen as engaging in indirect discrimination. Such practices can be construed as creating an unfavourable work environment for certain groups of employees, thereby violating equal employment opportunity laws.
To mitigate these risks, employers must take proactive steps to provide equitable support to all working parents. This could include offering flexible work schedules, remote work options, or part-time arrangements that allow parents to manage their work and childcare responsibilities more effectively. Additionally, employers should consider implementing policies that specifically support working mothers, such as extended maternity leave, breastfeeding breaks and facilities, or support for childcare.
Instituting these changes requires a cultural shift within organisations to recognise and value the diversity of employees’ needs. This shift involves not only policy changes but also a broader understanding and empathy towards the challenges faced by working parents. By fostering an inclusive work environment that accommodates the unique needs of working mothers, employers can not only avoid potential legal challenges but also enhance employee satisfaction and retention.
Additional Considerations in Remote Tech and Discrimination
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 that it provides on legal standards and employer liability in the context of remote work. As the workplace extends beyond the traditional office environment into remote and hybrid models, the definition and scope of harassment have also expanded. This expansion necessitates a reevaluation of existing policies to ensure that they adequately address the unique challenges and scenarios presented by remote work settings. For instance, harassment in virtual meetings or through digital communication platforms presents different challenges compared to in-person interactions, requiring tailored responses and preventive measures.
The guidance also underscores the importance of accommodating the needs of diverse employee groups, with specific attention to LGBTQ+ employees. This focus is critical in fostering an inclusive work environment and ensuring that harassment policies are sensitive to the needs of all employees, regardless of their sexual orientation, gender identity, or expression. Employers are encouraged to review and update their policies to ensure that they provide clear, specific protections against harassment of LGBTQ+ employees, which is essential in maintaining a respectful and inclusive workplace culture.
Additionally, the guidance highlights the need for updated policies related to video meetings and lactation accommodations. As video conferencing becomes a staple in remote and hybrid work models, employers must establish clear guidelines to prevent and address harassment that may occur in these virtual settings. This includes setting standards for professional conduct during video calls and ensuring that employees’ privacy and dignity are respected. Similarly, the guidance on lactation accommodations reflects an understanding of the changing needs of working parents, particularly mothers, in remote work scenarios.
Furthermore, the EEOC emphasises the importance of training for employees on these new aspects of workplace conduct. Training programmes 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 behaviour.
The Legal and Ethical Imperative of Flexibility
In response to these challenges, I tell my clients that they would benefit from adopting a flexible approach to RTO mandates. A one-size-fits-all policy may not only lead to legal repercussions but also overlook the diverse needs of a modern workforce. Companies need to make wise decisions and avoid biases in considering individual employee circumstances, including disability, age, and parental responsibilities, to navigate this new legal landscape successfully. Inflexible RTO mandates not only risk alienating key segments of the workforce, but also invite a host of legal challenges. By embracing flexibility and inclusivity in RTO strategies, employers can mitigate legal risks, foster employee engagement, and build a more inclusive and productive work environment.
About the Author
Dr. Gleb Tsipursky helps leaders use hybrid work to improve retention and productivity while cutting costs. He serves as the CEO of the boutique future-of-work consultancy Disaster Avoidance Experts. He is the best-selling author of 7 books, including the global best-sellers Never Go With Your Gut: How Pioneering Leaders Make the Best Decisions and Avoid Business Disasters and The Blindspots Between Us: How to Overcome Unconscious Cognitive Bias and Build Better Relationships. His newest book is Leading Hybrid and Remote Teams: A Manual on Benchmarking to Best Practices for Competitive Advantage. His cutting-edge thought leadership was featured in over 650 articles and 550 interviews in Harvard Business Review, Forbes, Inc. Magazine, USA Today, CBS News, Fox News, Time, Business Insider, Fortune, and elsewhere. His writing was translated into Chinese, Korean, German, Russian, Polish, Spanish, French, and other languages. His expertise comes from over 20 years of consulting, coaching, and speaking and training for Fortune 500 companies from Aflac to Xerox, and over 15 years in academia as a behavioural scientist at UNC-Chapel Hill and Ohio State. A proud Ukrainian American, Dr Gleb lives in Columbus, Ohio.