As the restrictions and inconveniences brought on by the COVID-19 pandemic continue to fade, many employers are requiring employees to report to the office, either on a full-time or hybrid basis.
A survey by ResumeBuilder.com reveals that 90% of executives polled plan to implement return-to-office policies by the end of 2024. This move, however, seems to clash with the preferences of many employees. According to a survey by Clarify Capital, nearly 70% of remote workers expressed a preference for looking for a new job rather than returning to the office. And many recent surveys indicate that employees put a high value on the ability to work remotely, as discussed more fully below.
Thus, a question we frequently encounter at Employers Council: Can employers require employees to work in the office?
Generally, employers have the authority to decide the terms of employment, including where and how their employees work. In short, the answer is yes, employers may require that employees perform their work in the office, barring exceptional circumstances.
Reasonable Accommodation Requests
One such exception involves employees who request to work remotely due to a disability as defined by the Americans with Disabilities Act (ADA). Employers must engage in the interactive process and provide reasonable accommodations to an employee with a known disability, provided the accommodation enables the employee to perform the essential functions of their position.
However, employers do not have to remove essential job functions to permit remote work. Further, employers do not necessarily have to provide accommodation of the employee’s choice if other reasonable alternative options are available. The Equal Employment Opportunity Commission (EEOC) recommends that employers prioritize the employee’s preference but ultimately allows employers to choose among effective accommodation options.
Under the ADA, an accommodation request can only be denied if providing the accommodation presents an undue hardship, a determination based on specific circumstances. The EEOC advises considering several factors in determining the feasibility of remote work, including the following:
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The employer's ability to supervise the employee adequately
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Whether any duties require the use of certain equipment or tools that cannot be replicated at home
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Whether there is a need for face-to-face interaction and coordination of work with other employees
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Whether in-person interaction with outside colleagues, clients, or customers is necessary
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Whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace
Notably, the EEOC advises against rejecting remote work “solely because a job involves some contact and coordination with other employees” because meetings can be effectively conducted by telephone and video.
However, employers may explore alternative accommodations besides full-time remote work, such as changes to the work environment or hybrid work schedules. The interactive process may reveal options that accommodate both employer needs and employee preferences.
Employee Refusal to Cooperate
Another factor that complicates requiring employees to return to the office is that employees simply may not comply. Some employers report that many employees are simply disregarding return-to-office mandates. Surveys indicate varying levels of compliance with return-to-office requirements, with more flexible mandates yielding higher adherence rates. The Stanford Institute for Economic Policy Research reports that employees who were required to report to work five days per week had only a 48% compliance rate.
This leaves employers in the precarious position of taking performance management action against employees who do not comply or being lackadaisical in enforcing their policy. Many employers seem to be looking the other way. The Stanford survey mentioned above indicated that 42% of employers do nothing when the employees are not returning to work as required, while only 12% threaten termination.
Being a Less Attractive Employer
Another factor that can complicate return-to-office mandates is that they make employers less competitive in the job market. Today’s employees value flexibility, and many rate flexible and remote work options as a valuable part of a job offer. It is often one of the top considerations outside of compensation.
And the employees are on to something. Studies show that flexible workers tend to be happier and more loyal employees.
Many employers felt the effects of the Great Resignation that began in 2021, during which employees resigned from their jobs en masse. One of the common reasons employees cited for quitting was inflexible work policies, according to a Pew Research Center survey.
Consider Flexibility
Ultimately, employers can require employees to return to the office. When creating a return-to-work plan, employers should be thoughtful and reasonable, and when extenuating circumstances occur, take appropriate considerations to avoid legal ramifications and employee dissatisfaction.
If you are a Consulting or Enterprise member and want assistance with a return-to-work plan that best aligns with your strategic business outlook, please contact Employers Council for guidance. All members are encouraged to access our Employers Guide to Managing Remote Employees.
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