Photo courtesy of Craig Leve; Getty Images; Alyssa Powell/BI
This as-told-to essay is based on a conversation with Craig Levey, an employment law attorney and partner at Bennett & Belfort, P.C., a law firm based in Cambridge, Massachusetts. The following has been edited for length and clarity.
Companies want their employees to be productive, and they generally have the right to introduce policies that mandate returning to the office five days per week.
In some businesses, employees can be productive remotely, but I truly believe in others, they do 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 being remote one to two days per week.
I think every company that mandates five days per week in office is going to lose some very valuable employees, which will be a blow to them.
Ultimately, an employee whose company implements a five-day RTO policy will have to decide: Am I going to return to the office five days per week as required, or am I not?
First, I would look at their employment agreement to see whether it was represented to them that they could work hybrid or remote. Although the company can change their policy, the employee could go back to their supervisor and say, "Hey, our agreement was that I'm going to be working remote or hybrid."
Well-written employment agreements will include a clause providing the employer with the flexibility the amend any and all terms. But if you have some leverage, you can negotiate into your employment agreement that you're going to be working remote or hybrid.
The typical 9-to-5 hourly minimum wage employee doesn't have a ton of leverage, but the higher up you get, you can negotiate for that. We saw that recently with the new Starbucks CEO, who will be mainly working remotely from Newport Beach rather than relocating to Seattle.
Next, I would help them assess if there are any legitimate legal avenues to take. Do you have a disability that requires an accommodation? Are there certain leave requirements under the Family and Medical Leave Act (FMLA) that you're entitled to?
If employees meet the requirements of certain laws — whether it's parental leave laws, pregnancy laws, or other similar laws — then they can use those laws regardless of an RTO policy. But if they don't meet the requirements and are using that as a tool to try to defeat the RTO policy, that's a bad idea.
When an employee has a documented disability covered under the Americans with Disabilities Act (ADA), the company has to deal with that employee a little bit differently. They may have a policy that says employees have to be in the office five days a week, but when an employee with a disability contacts the company and requests an accommodation, the employer can't simply just say no.
The company needs to engage in an interactive process to assess whether it can grant the accommodation because it's reasonable, or if it'll deny it because it's an undue burden on the business.
Lawsuits happen all the time involving employees who feel like their companies have violated the law by not granting a reasonable accommodation. If you feel you've been discriminated against because of your disability, you can file a charge with the Equal Employment Opportunity Commission (EEOC) or with your state agency. You could also file a lawsuit in court.
The plaintiff — usually the employee — would ultimately have the burden of proof, but if they can demonstrate that it's a reasonable accommodation, the company would need to set forth evidence as to why it was a burden. For example, let's say a person works in Amazon's customer service and they're on the phone the entire time. If they have a documented disability and ask to work remotely over the phone, it might be difficult for the company to prove that it's a true burden on the company to allow them to work from home doing the exact same things.
Sometimes, employees' requests are unreasonable because they're going to cost a ton of money or they're just not something that a company is required to do. Ultimately, it comes down to the facts of the case.
If you find yourself in a situation where you either have to return to the office or not — and in that case, effectively resign — and you're debating resigning, I think it makes sense to have a heart-to-heart conversation with your supervisor, explain you're fully capable of performing your duties remotely, and ask about a hybrid agreement.
That may not get you very far, but if you're at that point of potentially leaving the company anyway, it doesn't hurt to try to work out some sort of agreement.
In many instances, if the employee doesn't return to work, they'll be deemed to have abandoned their job, which can have implications for unemployment benefits: Is it a termination or is it a resignation? The company's going to say you're effectively resigning because returning to office is a duty of your job.
Each state has different rules and laws around unemployment, and you can run the risk of potentially not getting unemployment benefits if you've resigned from the job because you haven't returned to the office.
Still, I would recommend that you apply for unemployment benefits because other than your time, there isn't a lot to lose — you're either denied or approved. It really depends on the state you're in and who's assessing your claim, but I don't think it hurts to apply.
I wouldn't be surprised if, in one to two years, we see more in-office work. Companies that are mandating five days a week will inevitably result in a lot of employees leaving because they just don't want to do that.
It'll be interesting to see what the outcome of this will be. There'll be a subsection of these employees that find remote work, but beyond that, I think it'll result in more entrepreneurs and people doing social media because if these employees can't find the remote lifestyle that they want, they're going to just create their own business opportunities.
If your company implemented a return-to-office policy and you'd like to share your experience, email Jane Zhang at janezhang@businessinsider.com.
