The COVID-19 pandemic required many employers to embrace the concept of remote work in order to maintain business operations. As COVID concerns subsided, employers found themselves faced with a challenging dilemma concerning the future of employee working arrangements.

Despite employees working from home, work was being completed, and employees, who had previously known nothing other than the Monday through Friday trek to the office, grew accustomed to the increased flexibility associated with remote work. Many employers have accepted the changes occasioned by the pandemic and adopted longer-term, flexible scheduling policies that include options for remote or hybrid schedules. In recent months, however, several large, well-known employers including Amazon, Goldman Sachs, Boeing and UPS announced plans to require that their employees return to working in the office Monday through Friday. Employers have several reasons for wanting employees to return to the office full-time, but employees also have options to resist these mandates. Additionally, mandating employees return to the office may raise legal issues that must be considered before an employer implements such policies.

It is easy to assume that the reasons behind employers mandating a return to the office is employer-centered. That is not necessarily the case. Some employees have reported missing working from the office. Working in the office brings a degree of collegiality that simply cannot be captured by a Zoom or Teams meeting. Further, new, inexperienced employees report that training or mentoring is more challenging in a remote setting than in an in-person setting. Just as studies found a negative impact on students forced to learn remotely, employees expressed similar concerns being isolated from their colleagues.

Not all reasons behind the return to office mandates are altruistic either. These decisions are often made by more senior leaders who have their own perceptions about remote work and the productivity associated with it. As a junior attorney, I remember the days of going into the office on the weekends knowing that senior attorneys would be there simply to see which of us were in the office and working. For some senior leaders, the idea that employees can be as productive outside of the watchful eye of leadership is unfathomable, and common millennial and Gen Z stereotypes of laziness, entitlement and disengagement create additional skepticism toward those worker generations. These perceptions are not necessarily supported by post-pandemic data, and if productivity is the driving reason behind a decision to have everyone return to the office, the employer may want to take a closer look at company and employee data first.

Finally, we cannot ignore that some employers may implement return to work plans for reasons that are completely company-driven. Businesses in the middle of long-term office leases may not appreciate the sight of regularly empty desks and conference rooms. Even worse, some companies are using return to the office requirements as a means of reducing their workforce. With many employers still offering the popular remote or hybrid schedules post-pandemic, an employer considering a reduction-in-force (RIF) may implement a mandatory return to the office policy as a method to reduce the workforce. This tactic avoids the RIF process and the related costs of paying severance to employees selected for separation.

Return to the office mandates are not without risks though. While executives may believe these policies will lead to an increase in productivity, studies have actually shown the opposite is true. Return to office policies can lead to decreased morale and increased resentment on the part of employees, resulting in reduced productivity. Further, as competitors embrace remote and hybrid scheduling, quality employees may have other job options. An employer that mandates its employees to return to the office may find its best employees leaving for competitors who offer greater flexibility. The problem of increased turnover can be exacerbated by resulting employee replacement costs and challenges in recruiting replacement talent who are looking for the opportunity to work remotely. An employer looking to reduce its workforce by implementing mandatory return to the office may accomplish its goal, but it may find that the remaining workforce is disgruntled low performers.

Employers implementing return to the office policies must be aware of their legal obligations under statutes like the Americans with Disabilities Act, the Pregnant Workers Fairness Act and comparable state and local laws. Employers subject to these statutes are required to provide reasonable accommodations to employees who fall within the protections of these statutes. In certain circumstances, remote work or flexible scheduling may be a reasonable accommodation. These statutes typically require an individualized assessment in determining how to accommodate an employee, and one-size-fits-all policies are generally inconsistent with such an individualized evaluation. Not surprisingly, in the aftermath of the COVID-19 pandemic, litigation based on remote work as an accommodation has significantly increased. The Equal Employment Opportunity Commission has issued guidance to employers recommending that employers consider remote work as an accommodation. However, not every job is amenable to remote work, which accentuates the importance of analyzing each case on its own merit.

As we move further away from the COVID-19 pandemic, employers understandably want to “return to normal,” and in many cases this involves a return to the office Monday through Friday. Such a decision should not be taken lightly, as it may have unintended implications, and employers may find themselves wanting to embrace a “new normal” moving forward.

UB Greensfelder LLP is a full-service super-regional law firm focused on exceeding client expectations and delivering superior, customized legal solutions. The firm’s 275 attorneys advise regional, national, and global businesses on a wide range of legal matters across more than 25 specialized practice and industry groups. Created in 2024 through the merger of Ulmer & Berne LLP and Greensfelder, Hemker & Gale, P.C., UB Greensfelder has nine primary office locations, including Chicago; Cincinnati; Cleveland; Columbus, Ohio; Florida; New York; Southern Illinois; St. Louis; and Washington, D.C. For more information, please visit UBGlaw.com.  

Chris Bailey, partner and co-group leader of UB Greensfelder’s Employment & Labor Practice, represents employers of all sizes in employer-employee disputes and advises on litigation avoidance and human resources issues. He has successfully defended employers against discrimination and harassment charges, handling jury trials, bench trials, arbitrations and appellate work.