Employees angry about RTO mandates have essentially no legal path to fight them
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- Remote employees upset about return-to-office mandates basically have no legal path against the policies.
- "Unless there's a protected reason under established law," a worker has no legal recourse, an attorney said.
- Most employees "do not have a choice" regarding how their job is performed, said another lawyer.
It's 2021, one year after the COVID-19 pandemic transformed the workplace. Your boss says the company does not plan to require employees to return to the office. You give up your $3,000-a-month apartment in the city to buy a house hundreds of miles away.
Fast forward two years, and now the company requires you to either come into the office five days a week, or leave.
This is a reality that remote workers around the US are either facing or bracing for — some of them wondering whether they can successfully fight these mandates in the courts.
The answer, according to employment lawyers, is — not really
"Unless there's a protected reason under established law" such as a medical circumstance, "then you have no recourse," Ron Zambrano, the employment litigation chair at the California-based law firm, West Coast Trial Lawyers, told Business Insider.
When Amazon announced its plans last week to end remote work and require corporate employees to be in the office five days a week, some staffers swiftly criticized the megacorporation's decision in an internal Slack channel.
The move by the Seattle-based tech giant comes after other major companies, including Walmart, recently hardened return-to-office protocols. And the latest push by companies to get workers back at their desks could trigger an even broader RTO trend.
Some workers have filed lawsuits against their companies or charges with the National Labor Relations Board over RTO mandates.
But remote employees who simply argue that returning to the office is an inconvenience to their lifestyle have "zero chance" to fight the RTO mandate with legal action, Zambrano said.
The vast majority of employees across the country are considered "at-will," meaning an employer can terminate them at any time as long as the reason for the dismissal is not illegal. At-will employment also means that an employee can quit at any time.
"Unless you can assert some type of statutory rights, an employer can do whatever they want," including forcing employees back into the office full-time, said Zambrano.
Domenique Camacho Moran, a partner at the law firm Farrell Fritz in New York, who tends to represent management in employment-related matters, told BI that most employees "do not have a choice" regarding how their job is performed.
"Absent some contractual obligation, it is the employer's decision as to whether a job should or should not be performed remotely," Camacho Moran said.
Even if an employee was specifically hired as a remote worker, unless a written contract guarantees remote work for a set period of time, that employee still would have no legal grounds to push back against an RTO policy, the attorneys said.
"There's no law in any state, there's no law on the federal level, that gives anyone the right to just say, 'I want to work from home, and that's my right.' So until that changes, you have to fit into something else," Zambrano said, adding that an employee using a medical reason to justify working from home would have the most legal recourse.
According to Zambrano, if an employer rejects a doctor-prescribed "reasonable accommodation" for an employee to work from home, the employer could face legal liability under certain state laws and the federal Americans with Disabilities Act.
However, said Camacho Moran, just because an employee has an illness or a disability "does not mean that remote work is the appropriate accommodation."
"They don't get to choose their accommodation," said Camacho Moran. "They must be accommodated if they have a disability that requires accommodation, but it's not a choice as to which accommodation."
Reasonable accommodations under the ADA can include modifying a work schedule or workplace setting, as well as moving to remote work.
Assuming an employee's job can be done remotely, and an employer does not permit an employee to work from home due to a legitimate medical reason, the employer would open itself up to potential legal action, Zambrano said.
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