Can you refuse to return to the office?

In some parts of the world where Covid-19 cases are dropping, it’s starting to feel like the end of the pandemic is in sight. That’s driving governments and companies to begin encouraging—and sometimes mandating—that workers return to the office after two years at home. But after so much time, and so much experience of a different, more flexible work life, do we want to go back? And do we have to?

For employees in some countries that have passed specific “work from home” laws, the answer may actually be no. Spain and Portugal both introduced legislation during the pandemic designed to protect workers’ rights to work from home, and to curb companies’ ability to contact them outside specific work hours. Since the laws haven’t been tested yet in a post-pandemic situation, it’s not clear how well they’ll work either at allowing employees to maintain flexible working indefinitely or, on the other side, letting companies function efficiently.

In the US, UK, and many other countries, however, there is no such protection. Unless people were hired specifically to work from home—for example during the pandemic, with home working as part of their employment contract—then they are probably obliged to work from a designated workplace for at least part of the time, should their employers insist on it.

“Unless an employee has a valid reason not to return to work, for example, where they feel unsafe to do so, they remain contractually bound to resume their previous role within their normal place of work, albeit on reasonable notice,” noted Davidson Morris, a UK employment law firm, in a post on its website. That means an employer could theoretically discipline or fire an employee for refusing to return to the office, they wrote—though they also noted an employer should think very hard before doing so.

The return to office question has now turned pressing

With the rate of covid-19 transmission falling, “most businesses expect to welcome employees back to the office on a part-time or full-time basis in the coming weeks,” said Domenique Camacho Moran, an employment attorney at law firm Farrell Fritz in New York. “Generally, employees do not have the right to refuse to return to the office.”

Employees with mental or physical impairments might be able to demand that their employers “engage in an interactive dialogue regarding reasonable accommodations,” Camacho Moran added. But remote work, she notes “is not always [considered] a reasonable accommodation.”

The retention question

Going straight to our legal rights, however, is a jump. Employment, after all, is based on relationships, and any employer should be cognizant that maintaining good relations with employees is one of the most vital ways to retain people and keep them motivated. This should be top of mind for US firms particularly, since the US is seeing record quitting rates and positions going unfilled across many sectors of the economy.

The pandemic has changed labor relations, possibly fundamentally

When work-from-home mandates first appeared, entire businesses suddenly had to rely on employees finding ways to work from home, often alongside major commitments like caring for dependents. Having required one such huge shift from its employees, firms can’t easily pretend that nothing has altered.

In a best-case scenario, deciding on a job’s mix of in-person time and remote working will come down not to a rule but to a dialogue. Blanketing an entire organization with the same edict—for example, to be physically present for eight hours a day, Monday to Friday—feels like a vestige of the pre-pandemic world. It is one end of a spectrum, and therefore grounds for a negotiation.

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