There are many viable reasons an employer may decide a return to the office is important to their workplace. However, if this type of directive is something your company is contemplating, it is important to consider the potential implications of making material changes to what, in some circumstances, may represent a real or implied term of employment between the employer and employee.
Failing to develop a reasonable plan and process for mandating employees return to the office may lead to unintended repercussions or liability. Not to worry though, we’re here to help you avoid any issues!
Before issuing a return to the office mandate to employees, consider the following:
What Does the Employment Agreement Say?
Ideally, employment agreements for remote or hybrid employees will contain language which clarifies the privilege to work remotely is not indefinite. In the absence of a remote work provision in the employment agreement, your employee may take the position that being forced to return to the office is a material alteration to the terms and conditions of their employment. If your current employment agreements do not contain a remote work provision, we recommend you ask that an e2r™ Advisor update your templates to address this concern.
If executed prior to the COVID-19 Pandemic, it is unlikely that your employee’s employment agreement included a provision regarding remote work (as it was a far less common arrangement prior to 2019).
However, the absence of this type of provision in an employment agreement demonstrates that, when the agreement was executed, the presumption of both parties was that work performed by the employee would be conducted in the employer’s physical workspace. Employers can leverage this reality to demonstrate that any subsequent remote or hybrid work arrangement was a temporary privilege rather than an indefinite term of employment.
Do you have a Remote Work Policy?
Your company may also have a Remote Work Policy clarifying the employer’s discretion to amend or revoke an employee’s eligibility to work from home.
If you do not currently have a Remote Work Policy, implementing one will assist in ensuring your employees are aware their ability to work remotely is a privilege which can be revoked upon reasonable notice.
Workplace Accommodations
In some circumstances, an employee’s remote work arrangement may be tied to a medical or human rights related accommodation. In these cases, it is important that employers remember that workplace accommodations are typically designed to be temporary.
As an employer, you have the right to request and receive meaningful updates regarding your employee’s accommodation needs, including whether their health or family status continues to justify an ongoing remote work accommodation.
Ensuring your employees understand the nature of the accommodation is temporary will assist in both documenting the employer’s position and managing the employee’s expectations.
Conclusion
For any employer contemplating a return to the office directive, it is essential that you communicate the mandate clearly, fairly and firmly with as much notice as reasonably possible to allow employees time to prepare for the transition back to the office.
If considering a return to the office mandate, reach out to speak with an e2r™ Advisor to discuss how best to communicate your expectations in a way that avoids unnecessary risk or potential liability.