What happens when employees refuse to return to the office? We asked an employment law expert. As the economy reopens, more companies are returning from remote-first operations. So what obligations do companies have, if any, to employees who are unwilling to come back into the office? Do companies have an obligation to accommodate demands for remote working? We asked an employment specialist what she is telling her clients and for best practices as businesses move toward their new normal.
Sara Kalis is an employment law partner at the law firm Paul Hastings.
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Interview with Employment Lawyer – Sara Kalis of Paul Hastings.
Joel Cohen (Host): What about if the employee just doesn't want to come in? Is that is that risk something that needs to be reflected in employee manuals?
Sara Kalis (Sara): We have seen many employers struggle with that concept of employees who don't want to return to work. You should ask yourself, do you have a legal obligation to accommodate the request? Perhaps you didn't before, but the landscape looks different now. So you need to be thinking about whether you need to engage in the "interactive process" and I know that's a phrase that many people shy away from.
Host: Interactive process, without going in depth too much, can you give a quick gloss on what that is?
Sara: Sure, so you have to engage in a conversation with the employee to determine whether what they're asking you to do is something that you can reasonably accommodate. Can you change your job or the job that employee is performing to be able to accommodate that employee's needs? Does it become an undue hardship? Working virtually, before, could be seen as an undue hardship. Today, is very different world. And so you really do need to look at the big picture. Can you accommodate it? If you do decide to accommodate a virtual work from home, but you know you don't want to do that long term, it is a best practice to memorialize that expectation in writing with employees so that there is no expectation that they will be working virtually indefinitely. One further thing, remember that when you're making accommodations like this, one accommodation for one individual really does set a precedent. And you need to be aware that other employees will expect the same thing. If you don't offer the same accommodation, you need to have a really good reason why.
Host: And by that, you mean perhaps the company would need to memorialize as well the justification? Perhaps this employee is client-facing or this employee needs to be in the office to do their responsibilities because "Y."
Sara: Yeah absolutely, it's memorializing why are you making the distinction. A lot of employers are going through this process right now and they're saying which employees need to be back in the office first. Is the accounting department really one that can work remotely more often and why is that? It's because a lot more of their job might be on the computer and less in-person face time. Whereas, you have a sales manager who, sure right now working via zoom is expected or even encouraged, but when things are hopefully at some point 100% back to normal, that sales manager that you expect to be in person really needs to return in person because that's their job. That's an essential function of their job.
