Can I fire an employee for refusing to return to the office?

The question of whether employers can legally demand that their employees return to the office has become a hot topic of late. With the pandemic seemingly on the back foot, many employers are keen to welcome their people back to their HQs – however, their people are reluctant to wave goodbye to that work from home setup for good.

Data from Slack found that while only 12% of employees want to be in the office full time, 50% of leaders are currently demanding an all-out return. It’s a disconnect that’s starting to unravel employer-employee relationships - something that’s already on edge thanks to the ongoing labour shortage.

T. Maxine Woods-McMillan, employment law attorney at AbsolutLAW, PLLC and Equity Esquire, PLLC tells HRD that in order to address this topic authentically, employers need to fully grasp the legal implications around accommodation requests to not return to in-office work – and the fallouts of denying them.

The right to demand a return to office

According to Woods-McMillan, in most cases, employers can legally require employees to return to the office, especially if the job was not initially designated as a remote position.

"As long as the position was not originally hired for remote work, the employer typically has the right to determine where the work is performed,” she says. “The employer has no obligation to allow remote work unless specific conditions apply. An employer is not obligated to retain an employee who refuses to return, assuming certain conditions are met."

However, she also pointed out that employers must clearly communicate their expectations and consistently enforce a mandatory return policy. Accommodation requests play a significant role in the return-to-office scenario. Woods-McMillan highlighted that employers need to be mindful of the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. This may include requests for  an accommodation related to returning to the office.

Woods-McMillan also stressed the importance of engaging in the "interactive process," where employers work informally with employees to address their needs and concerns related to job performance.

Speaking to HRD, she emphasized that reasonable accommodations must not impose undue hardship on the employer. After all, the determination of what constitutes reasonable accommodation and undue hardship is a case-by-case matter, and the interactive process can help to clarify these aspects.

“Employers should not make unilateral decisions about denying accommodation requests related to returning to the office,” she explained. “Each request should be approached individually, and employers should demonstrate that they have considered potential undue hardship."

Addressing team concerns

Moving beyond individual considerations, we asked Woods-McMillan how employers should handle concerns from their teams about returning to the office. She urged employers to first clarify their reasons for requiring employees to return.

"Is it simply because it's what's comfortable for the leadership or is there a valid business need?" she posed. “Will there be a hybrid schedule, or are some roles inherently remote?"

However, Woods-McMillan did caution against creating a divisive work environment where some employees have the privilege of remote work while others do not, without adhering those requirements to actual work duties. Furthermore, she emphasized the importance of addressing workplace conditions and complaints, especially related to health and safety. Employers should have a robust complaint infrastructure in place to avoid the appearance of retaliation.

Fair compensation for remote work

In the context of a potential hybrid schedule, Woods-McMillan reminded employers to consider compensation and tracking work hours. She highlighted the Fair Labor Standards Act (FLSA) and the need to ensure that employees are paid fairly for the time they work, whether in the office or remotely.

“It's essential to track time accurately and avoid non-exempt employees doing unrecorded extra work, which can lead to legal liability exposure."

Woods-McMillan advised employers to formalize their policies regarding attendance and remote work, ensuring that they are communicated clearly to all employees. Essentially, consistency in policy enforcement is vital to avoid legal complications. Particularly for non-exempt employees, employers should ensure to monitor work output and times that work is performed. Importantly, the employer is responsible for the time that the employee actually works – not just the time that is documented in time-keeping software.