Returning to Work: What Employers Need to Know
What are the facts?
On September 16, Amazon announced that its corporate employees will be required to return to working five days a week in the office as of January 2. The news came as a shock to many, as Amazon corporate workers had been working a hybrid schedule of three days in the office since early 2023, a popular arrangement for employees. Employers following this trend face several potential pitfalls if a return-to-work determination is not made thoughtfully.
With the shift to remote work during the pandemic, many workers with disabilities were able to do more with their current employers, or to join the workforce when being physically present at work had previously been a barrier. While working from home may not have been practical before, advances made due to necessity may have made it a reasonable option for those who needed an accommodation. When calling employees back into the office, employers must consider employees with disabilities for whom working from home is critical to their ability to perform the essential functions of their job. Employers should engage in an interactive process with employees with disabilities to determine whether there are reasonable accommodations that can be made to the employee’s office environment or whether working remotely is still the best accommodation. When more than one accommodation is identified during the interactive process, the employer can choose the accommodation, if it is reasonable.
Employees may now begin requesting reasonable accommodations and leave under the Family and Medical Leave Act (FMLA) for mental and emotional health conditions, such as anxiety and depression, that prevent them from coming into the office. Continue to strictly follow your procedure for certifying serious health care conditions under FMLA and going through an interactive process as required by the Americans with Disabilities Act (ADA). Do not deny a request for leave or accommodation merely because of the temporal proximity between the return-to-work announcement and the request for leave or accommodation. Assuming an employee is “faking” because they have not previously reported having that condition or because they are requesting 12 weeks of leave may result in serious noncompliance.
What’s the downside of returning to work?
Returning to work may cause an upheaval for those with dependent care responsibilities. Many jurisdictions prohibit discrimination based on marital or familial status, so make sure that employees with and without children are being treated equally in the return-to-work process, and that higher expectations are not placed upon an employee who has a spouse who can provide childcare, for example. Some states have “small necessities” leave laws, which require employers to provide parents and guardians with time off to attend conferences and school activities. Employers should be flexible and allow those with dependent care responsibilities enough notice to make arrangements before the return-to-work date.
Some employees react litigiously to a return-to-work announcement. Check for employment agreements, offer letters, job descriptions, and any other documentation that may intentionally or inadvertently create a promise or guarantee of remote working conditions. If you and the employee have signed something you are not sure about, contact myHRcounsel to discuss whether you could be subject to a lawsuit. Remember to always add to any formal announcement that employment remains at-will and may be terminated at any time, for any reason or no reason.
Finally, the way you communicate with your employees about returning to work will be most important. At the time you announce the return-to-work, you should have a written return-to-work policy that describes how the process will occur and the deadlines by which employees must have made changes to their work environment. This may mean moving from remote to hybrid work before bringing your workers back full-time. Your written policy should explain the consequences of not changing their work environment by the set deadlines, up to and including termination for employees who refuse to return and continue to work at home. All employees should receive a copy of the written policy, and you should obtain a signed acknowledgment from all employees. Deliver a message describing all the positive changes returning to the office will bring.
Support is available
Before you ask your employers to return to the office, consult with the attorneys at myHRcounsel. With an affordable subscription, businesses can receive an attorney drafted return to work policy, and have the ability to discuss any accommodation issues that you may have.