An employment lawyer explains what to do if your company announces an RTO

Many companies are introducing return-to-work orders and not all employees are happy with them.
Companies requiring a five-day RTO will lose valuable employees, an employment lawyer said.
Craig Levey outlines four steps employees can take if their company announces an RTO policy.

This essay, as told, is based on an interview with Craig Levey, an employment lawyer and partner at the Cambridge, Massachusetts-based law firm of Bennett & Belfort, PC. The following information has been edited for length and clarity.

Companies want their employees to be productive and generally have the right to implement policies requiring people to return to the office five days a week.

In some companies, employees can be productive remotely, but I truly believe that in others they need to be in the office. Personally, I think hybrid is the perfect balance, with employees working in the office three to four days a week and working remotely one to two days a week.

I think any company that requires five days a week in the office is likely to lose very valuable employees, which will be a blow to the company.

Ultimately, an employee whose company implements a five-day RTO policy will have to decide: Will I return to the office five days a week as needed or not?

Here are the steps I would take if a client approached me about switching their company to a 5-day RTO policy:

1. Take a look at your employment contract

First, I checked their employment contract to see if they had been presented with the option of hybrid or remote work. While the company may change its policy, an employee can go back to his or her manager and say, “Hey, our agreement was that I would work remotely or hybrid.”

Well-written employment contracts will include a clause that gives the employer the flexibility to change any terms. But if you have some leverage, you can negotiate an employment contract.

The typical hourly worker earning minimum wage doesn’t have much leverage, but the higher up you are, the more you can negotiate. We saw this recently with Starbucks’ new CEO, who, rather than moving to Seattle, will work mostly remotely from Newport Beach, California.

2. Consider your legal protections

I would then help them assess whether there were any legitimate legal avenues that could be pursued. Are you a person with a disability requiring accommodation? Are you eligible for specific leave requirements under the Family and Medical Leave Act?

If employees meet the requirements of certain regulations – whether they are parental leave, pregnancy or other regulations – they can benefit from those provisions regardless of the RTO’s policy. However, if they don’t meet the requirements and use it as a tool to try to defeat the RTO policy, it’s a bad idea.

When an employee has a documented disability covered by the Americans with Disabilities Act, the company must deal with the employee slightly differently. They may have a policy that says employees must be in the office five days a week, but when a disabled employee contacts the company and asks for an accommodation, the employer can’t simply refuse.

The company must engage in an interactive process to evaluate whether it will accept the accommodation because it is reasonable or refuse it because it is an undue burden on the company.

Lawsuits are filed all the time involving employees who believe their companies have violated the law by failing to provide reasonable accommodations. If you feel you have experienced disability discrimination, you can file a complaint with the Equal Employment Opportunity Commission or your state employment agency. You can also file a lawsuit in court.

The plaintiff – usually the employee – ultimately had the burden of proof, but if they were able to show that it was a reasonable accommodation, the company would have to provide evidence as to why it posed such a burden. For example, let’s say a person works in Amazon customer service and is on the phone all the time. If they have a documented disability and ask to work remotely over the phone, it may be difficult for a company to prove that allowing them to work from home while doing the exact same job is a real burden.

Sometimes employee requests are unreasonable because they will cost a lot of money or are simply not something the company is committed to. Ultimately, it all comes down to the facts of the case.

3. Talk to your manager

If you find yourself in a situation where you need to return to the office or actually resign and you are considering resigning, I think it is worth having an honest conversation with your manager to explain that you are fully able to perform your duties remotely and ask about a hybrid contract .

It may not get you very far, but if you’re on the verge of potentially leaving the company anyway, it wouldn’t hurt to try to negotiate some kind of settlement.

4. File for unemployment

In many cases, if an employee does not return to work, they will be deemed to have abandoned their job, which may have consequences for unemployment benefits: is it termination of employment or resignation? The company will say that you are effectively resigning because returning to your position is a requirement of your job.

Each state has different unemployment rules and regulations, so you may risk not receiving unemployment benefits if you quit your job because you don’t return to the office.

Still, I would recommend filing for unemployment benefits because you don’t have much to lose other than time – your application is either rejected or approved. It really depends on the state you’re in and who’s handling your claim, but I don’t think there’s any harm in filing a claim.

Returning to office work may have interesting consequences

I wouldn’t be surprised if more office work becomes available in the next year or two. However, in companies that require five days a week in the office, many employees may leave because they simply don’t want to do it.

It will be interesting to see what the outcome of this will be. Some of these employees will find remote work, but beyond that, I think it will result in more entrepreneurs and people doing business via social media. If employees can’t find the remote lifestyle they want, some will simply create their own business opportunities.

If your company has implemented a return to the office policy and you would like to share your experiences, please email Jane Zhang at [email protected].