The Rising Legal Risks of Return to Office Policies

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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 Leading to Legal Risks of RTO

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 EEOC, said in a statement that the ADA's 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 notable legal settlement, a facility management company agreed to pay $47,500 to settle an Equal Employment Opportunity Commission (EEOC) lawsuit for violating the Americans with Disabilities Act (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.

In a lawsuit against Electric Boat Corp., Zacchery Belval, a resident of Enfield, Conn., claimed discrimination for the company's failure to provide reasonable accommodations under the Americans with Disabilities Act and the Connecticut Fair Employment Practices Act. 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.

Mental health issues have become increasingly prominent in the context of workplace accommodations. The pandemic has led to a 25% increase in cases of depression and anxiety in the U.S., 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% 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.

Working Parents, Age Discrimination, and Gender Disparities

Older workers are particularly impacted by RTO mandates. A recent survey from Carewell has illuminated this trend, revealing that as many as 25% 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% 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 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% of mothers, compared to 17% 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.

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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 unfavorable work environment for certain groups of employees, thereby violating equal employment opportunity laws.

The Legal and Ethical Imperative of Flexibility

In response to these challenges, it's valuable to adopt 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.

A version of this article was published on disasteravoidanceexperts.com