
As More Employers Implement Return to Work Keep an Eye Out for Problems
January 30, 2025
Last week President Trump ordered federal workers back into the office. His Executive Order directed federal agency leaders to “as soon as practicable” take “all necessary steps” to end remote work arrangements. This executive order is only applicable to federal workers. Private employers, even those that are federal contractors or subcontractors are not covered by this executive order. But this may continue to create impetus for private employers to start doing more of the same to some degree.
ASE partner McLean & Company has a robust library of resources for employers to initiate a return to office (RTO) policy and program that seeks to plan for and address employee backlash and potential negative consequences for an organization’s plan to back off its work from home practices.
To avoid such, McLean & Company recommends knowing both organizational needs as well as employee needs. It further recommends starting with a flexible RTO policy and to offer support to employees as they adapt to the return to the office.
After some five years of remote work, one immediate consideration is to ensure there is room to house everyone. If the company has downsized office space and perhaps increased employment there might not be enough room to house the current office workforce. Will this situation cause the employer to lay off those employees that cannot be housed? Reports of this have been in the general media and those employers faced an allegation that these were “hidden layoffs.”
Another unexpected situation may be employees being caught short around casual time off for childcare issues and personal doctor’s appointments that were easy to do when remote but not so much when people now will be expected to be present in the office. Mark Neuberger, legal counsel at Foley and Lardner LLP states that this situation may give rise to “a whole panoply of FMLA, state, and local leave law” compliance “that the employer is going to have to comply with.” Yes, this would be a Michigan employer concern under the impending Earned Sick Time Off Act going into effect next month.
So, suggestion number one is developing a logistics plan to support implementation of the RTO. This plan should include intentional flexibility and employee support during transition back into the workplace. It is not advisable to implement a one-size-fits-all approach to RTO. McLean & Company advises this too can lead to unanticipated turnover and possible employee disengagement.
McLean & Company reports employees are motivated to come to the office when they are supported in rebuilding bonds with their team; promised they will be able to socialize with co-workers, know their work friends will also be there, and that their direct teammates will also be present.
Balancing organizational and employee needs around RTO in a comprehensive policy is a key feature to successfully implementing RTO with minimal downside. This will also include looking at an RTO’s impact on certain subgroups within an organization’s workplace. One suggestion would be to include doing an adverse impact analysis to determine if allowing certain employees to remain at home is somehow unintentionally discriminating against a segment of the work population. What might this look like? Melissa Pesce at Ogletree Deakins Nash Smoak & Stewart PC points out, suppose it was determined workers that are more “tech savvy” may work from home whereas those workers that are less “techie” are required to return to the office. She states that scenario “could lead to a claim of discrimination against older workers as a group if they are the ones required to return.”
All the above points to avoiding a sudden policy turnabout and taking the time to study what an RTO change could possibly do to an organization if implemented like President Trump did last week.
For more information about returning to office, ASE members can research this in its Mclean & Company and CCH AnswersNow online libraries in the ASE Member Dashboard.
Sources: McLean & Co Return-to-Office Playbook Research and Tools; Law360 Employment Authority. 4 Pitfalls Employers Face When They Wean Off Remote Work. (1/24/2025)
By Michael Burns, courtesy of SBAM-approved partner, ASE.
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