By Howard Levitt and Stephen Gillman
How it is done will impact how it is received
In-person interaction provides a huge boost to employee morale, presents increased opportunities for career development and helps foster an environment for effective collaboration, all of which encourage real connections and can build confidence.
In a column from earlier this year, Howard predicted that as restrictions eased and employers beckoned for a return to the workplace, a litany of wrongful dismissal lawsuits would follow. Based on the volume of this type of lawsuit our firm is currently handling, it appears as though this early prophecy has come to fruition.
The reality is that the transition back to the office does not need to occur overnight, nor does the outcome need to be entirely in-person or entirely remote.
In planning with employers on how to implement a return to in-person work, many have opted for a more flexible transition and, where possible, have allowed employees to adopt a hybrid model where time is split between in-person and remote.
Interestingly, the federal government recently mandated such a hybrid approach, announcing last week that, subject to those entitled to accommodations, public servants will be required to return to the office two to three days per week by no later than March 31, 2023. This policy is rooted not just in enhancing collaboration, innovation and a culture of belonging, but also in fairness and equity bearing in mind the greater than a quarter-million employees in the core federal public administration across a number of various departments.
Although an employer is entitled to recall its remote staff to the in-person workplace, how it is done will undoubtedly impact how it is received.
As with any corporate reshuffling, the key is to act early and consult with an employment lawyer to strategically plan for returns to the office as how employees are ordered back presents a beehive of legal challenges. Regardless of organizational size and complexity, in our experience, a well-planned, carefully executed approach can significantly improve how such an announcement is received and whether employees are likely to sue or be successful doing so.
Although a company’s specific needs will vary from workplace-to-workplace, we encourage all employers to remain mindful of the following when implementing a recall to in-person work:
Provide sufficient notice. Although it may not be a permanent term of your existing staff’s employment, providing ample notice of the recall to the workplace will allow for everyone impacted to make any necessary adjustments after two-plus years out of the office. A phased approach may allow employees to efficiently recalibrate and adjust their budgeting of time and resources. Most important, even if the recall is a constructive dismissal based on what had become employees’ terms of appointment, reasonable notice will eliminate any constructive dismissal claim.
Communicate. Even if there is not an obligation to accommodate an employee, listen to and discuss the underlying reasons for the requested accommodation. Oftentimes there may be other ways to address an employee’s concerns other than allowing them to work remotely. For example, a modest transportation allowance may alleviate some of the additional costs associated with commuting amid rapid inflation.