RTO comes with legal risks
As the return to offices continues, more employers and HR professionals are paying attention to the potential legal risks posed by reluctant returning staff.
The reality is that RTO is a messy business, and employers leave themselves open to discrimination claims from employees, should they allow remote accommodations to certain employees who request it and not others, without a clear explanation, according to legal experts.
That goes doubly so if returning to offices wasn’t explicitly outlined in their original employment contracts.
“I’ve been talking to clients about this [legal risks of RTO] for years, and I think there is a resurgence in the dialogue around it in light of what’s going on with government employees,” said Stephanie Gantman Kaplan, partner at Blank Rome and vice chair of the labor and employment practice group.
Accommodations
The biggest legal risk for both private and government employers now under an RTO mandate is around accommodations, according to workplace experts. Last year the top requested accommodation was remote work, according to a survey from AbsenceSoft, a platform for leave of absence and accommodations management, which included responses from 2,400 HR leaders and employees.
Under the Americans with Disabilities Act (ADA) employers are required to offer reasonable accommodations to staff with disabilities who request them. They don’t have to offer the exact accommodations requested if it puts an undue burden on the employer, though the process needs to be interactive and show a negotiation between both sides.
One major challenge today is around employees bringing accommodations to their managers rather than the HR department. That kind of side-stepping can put HR in a bind when requests are granted without going through a standard process.
Ultimately, HR will need to ensure the company’s ADA accommodation process is clearly communicated to employees and managers, said Christopher Moran, labor and employment attorney at Troutman Pepper Locke.
“The number of people with remote work accommodations post-COVID is probably now significantly higher than pre-COVID,” he said.
Discrimination
Who exactly gets accommodations, like remote or hybrid working arrangements, also poses legal risks, particularly if decisions are made arbitrarily and without documentation. Accordingly, the accommodations process should be as fair and consistent as possible, Gantman Kaplan said.
She expects accommodations will increasingly be made for staff with caregiving responsibilities, which aren’t covered under the ADA. In those instances, staff may get different working arrangements and time off under the Family and Medical Leave Act (FMLA), and need to take temporary leaves of absence from work. HR teams should evaluate current leave of absence and FMLA policies at their organizations to ensure they are compliant and adequately supporting employees in those situations, Gantman Kaplan said.
Proper documentation and having good policies and practices in place can help protect employers from claims that such decisions are being made unfairly.
“You could have a more robust process that would allow some people who don’t claim to have disabilities to work from home for other reasons that the company believes are acceptable,” said Moran.
Contractual obligations
Another legal risk posed by RTO mandates comes down to contractual obligations. New hires typically sign employment agreements that stipulate their working arrangements — though many include an employer’s right to make changes to the arrangement.
“In most instances, even if there’s a written telework agreement, it generally allows the employer to change or discontinue the process and to bring the employees back,” Moran said.
Not all include that caveat though. Accordingly, employers should update offer letter templates and make language more highly specific, Gantman Kaplan said. “I’m not sure companies have been laser-focused on putting that flexible language in the offer letter,” she said. “And while an offer letter isn’t a contract, it is a written document, and you want it to provide the company with the maximum level of flexibility.”