Some workers are so unhappy about returning to the office that they’re playing a legal card—asserting that they have a disability that necessitates that they work from home full time, employment attorneys say.
“Many are arguing COVID-related reasons, but it doesn’t have to be,” said David Barron, a member of the law firm Cozen O’Connor in Houston. “It could be some other type of disability that would warrant a reasonable accommodation to work from home.”
Workers seeking disability accommodations are relatively rare, attorneys say, but nonetheless reflect the strong resistance a sizable slice of employees are showing to any in-the-office mandates.
It’s a tricky landscape for corporate legal departments to navigate, attorneys say, in part because they could expose their companies to discrimination claims if they apply extensive flexibility to certain similarly situated workers but not others.
It doesn’t help that some workers are outright angry. Recently, a group of Apple employees, dubbed “Apple Together,” signed an open letter to the tech giant, rejecting a hybrid work model and asking the company to allow them to make their own decisions.
“Stop treating us like school kids who need to be told when to be where and what homework to do,” they wrote.
Apple suffered at least one high-profile resignation in resistance to its hybrid model, which requires that employees report to the office three days a week. The Verge’s Zoë Schiffer reported on Twitter that Ian Goodfellow, the company’s director of machine learning, resigned, writing in a note to staff in early May that “I believe strongly that more flexibility would have been the best policy for my team.”
About 60% of 200 contract workers for Google Maps in Bothell, Washington, recently signed a petition demanding that the outsourcing firm Cognizant Technology Solutions rescind a plan that they return to the office five days a week starting June 6. The workers, who cited health, child care and financial concerns, including an inability to afford the commute, won a 90-day reprieve late last week.
While employers do have a right to require that employees return to the office, employment attorneys and other experts say, they also need to take employee sentiment into account—or risk losing talent in a tight labor market.
“The request to return [to the office] is reasonable, but so are workers’ preferences for remote work,” said Jason Winmill, managing partner at Boston-based legal department consulting firm Argopoint.
“Many companies receive clear benefits from their staffs working in person, from enhanced collaboration to increased productivity from some employees,” he said. “Some workers, however, see the end of remote work as a new job benefit being taken away.”
‘Stakes have never been higher’
A survey released in late April by ADP Research Institute underscored how passionately workers want their flexibility. The survey of 32,000 workers in 17 countries found that 64% would consider looking for a new job if they were required to return to the office full time. Younger workers felt even more strongly, with 71% of 18- to 24-year-olds saying a full-time office mandate would lead them to consider another job.
“The pandemic signaled a paradigm shift as today’s workers re-evaluate the presence of work in their lives, and the stakes have never been higher for employers,” Nela Richardson, ADP’s chief economist, said in a statement.
During the pandemic, many workers have justified to supervisors that they must work at home by saying they are immunocompromised, employment attorneys say.
But Cozen O’Connor’s Barron said some workers seeking a more permanent work-from-home arrangement are seizing on disability protections in the Americans with Disabilities Act.
Title I of the ADA requires that an employer provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause undue hardship.
A qualified individual with a disability is someone who has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment.
For disabled employees to qualify for the work-from-home accommodation, they also must be able to perform the essential functions of the job.
Employees might be able to use their performance record in 2020 and 2021 to shoot down arguments that working from home prevents them from meeting that standard, Barron said.
“So now, if the employer says, ‘Well, it is a hardship to let this person work from home in 2022,’ that argument is going to be tough because people have been doing it,” Barron said.
‘Employers are really struggling’
Employment attorneys say companies must carefully craft return-to-office policies and enforce them uniformly in order to avoid claims of discrimination.
The process is especially complex for companies whose operations span different jurisdictions in the United States and overseas, each of them with their own regulations and laws.
“[We would] have to analyze everything, because what might be legal in one jurisdiction may be illegal somewhere else,” said Stephen Kim, chief legal officer of Avicanna, which develops cannabis-based medical products. The Toronto-based company has 70 employees spread out among Canada, the United States, Colombia and the United Kingdom.
The human element makes the calculus even more challenging.
Last week, Tesla CEO Elon Musk issued an ultimatum to the company’s employees, saying they have to return to the office at least 40 hours per week. If they’re not willing to put in the hard work, he said on Twitter, “They should pretend to work somewhere else.”
JPMorgan Chase & Co. CEO Jamie Dimon has a similar mindset. At a conference last month, he said working from home doesn’t work for people who want “to hustle.”
Meanwhile, some rank-and-file employees feel just as strongly that they need and deserve flexibility, but even they don’t always agree on the right mix of office days and home days.
“Employers are really struggling with finding the right balance,” Barron said.
Kim added: “It’s tough. Do you create a system where you have at least three separate categories of employees? You have some employees that want to be in the office all the time, some employees that prefer hybrid, and then you have others that want to work from home all the time.
“If you try to roll out one policy or three policies, your company could quickly find itself in a position where it’s not able to defend or substantiate or really give strong support to any one of them,” Kim said.
He said a blanket return-to-office mandate creates a host of problems. Among them is that it impedes diversity and inclusion, since it doesn’t accommodate the challenges of single parents, multigenerational families or factor in cultural or religious beliefs.
Whatever companies come up with, they need to engage employees in the discussion, Winmill said.
“More important than the precise strategy … is that companies are careful to work with their employees in this change, rather than simply imposing it on them. I recommend companies looking to transition to consider well-thought-out change management strategies that can guide them through the most effective way to structure and communicate return-to-office plans,” he said.
Barron said employers are tilting toward hybrid models because that’s what employees want and alienating them could create retention problems. But he said that doesn’t mean companies can operate without firm rules.
“Many employers are just agreeing to it as a perk because their competitors are doing it, and people like it. But like any other perk, it has to be done on a nondiscriminatory basis. So, you can’t just let your high-performing employees do it. You have to have a policy,” he said.