OPINION: Guest writer

OPINION | GLEB TSIPURSKY: Flexibility needed

Use caution on return-to-work orders

Are employers walking into a legal storm by enforcing rigid return-to-office (RTO) mandates?

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.

Brandalyn Bickner, a spokesperson for the Equal Employment Opportunity Commission (EEOC), said in a statement that the Americans with Disabilities Act'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 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.

Mental health issues have become increasingly prominent in the context of workplace accommodations. The EEOC has observed a 16 percent increase in such charges between 2021 and 2022. 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.

Older workers are particularly impacted by RTO mandates. A recent survey from Carewell has illuminated this trend, revealing that as many as 25 percent of workers over the age of 50 are contemplating retirement more seriously in light of RTO mandates. The resistance to RTO mandates among older workers brings to the forefront concerns about age discrimination. If RTO policies disproportionately affect older employees, employers could face age discrimination claims.

The legal risks associated with RTO policies are further highlighted by their impact on working parents, especially mothers. 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 child care. The legal implications of these policies stem from the potential for indirect discrimination and unequal treatment of working parents.

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 on legal standards and employer liability in the context of remote work. As video conferencing becomes a staple in remote and hybrid work models, the EEOC highlighted how employers must establish clear guidelines to prevent and address harassment that may occur in these virtual settings. Similarly, guidance on lactation accommodations reflects an understanding of the changing needs of working parents, particularly mothers, in remote-work scenarios.

Furthermore, the EEOC emphasizes the importance of training for employees on these new aspects of workplace conduct. Training programs 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 behavior.

In other words, 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.

Dr. Gleb Tsipursky is the CEO of the future-proofing consultancy Disaster Avoidance Experts, and the best-selling author of "Leading Hybrid and Remote Teams: A Manual on Benchmarking to Best Practices for Competitive Advantage" and other books. He lived in Little Rock for a year while on a research fellowship.