How to Navigate a Return to Office Policy

March 19, 2025

Employers are requiring their employees to return to the office. During the pandemic, we learned to work remotely. Increasingly, however, business clients and customers are requiring in-person services from their service providers and suppliers. Moreover, some of our seasoned employees are approaching retirement and our newer employees have struggled to find meaningful opportunities to learn from these more seasoned employees during remote work. 

While we tried to do our best to build a strong culture during remote work, our efforts fell flat. Employee engagement and collaboration declined since the pandemic. We have seen a steady increase in the number of employers, both locally and nationally, transitioning away from remote or hybrid work and returning to a full-time in office policy. One recent study found that 87 percent of companies will mandate a full return to the office by the end of 2025, with 64 percent of respondents saying they have already done so.

Additional studies have found a significant pushback from the workforce to these changes. A recent study conducted by the Pew Research Center found that 61 percent of fully remote workers and 47 percent of hybrid workers said they were “very/somewhat unlikely” to stay at their current job if their employer mandated a full return to the office.

The data is clear – employers are mandating a return, and employees are not happy. From an employment law standpoint, this is the time to advise employers on the proper protocols for adjusting your policies to not only ensure you avoid any potential legal challenges, but also to ensure you retain your top talent.

At-Will State

New York in an at-will employment state, meaning that, absent an employment contract specifically restricting termination, an employer has the right to discharge an employee at any time with or without cause, assuming the termination does not violate any anti-discrimination provisions and is not retaliatory. That means, generally speaking, employees can be terminated for refusing to return to the office. That does not mean employers should not exercise caution in such a transition.

As with any policy, equal enforcement among your employees is important. For example, if you require an entire department, division, or all employees in the company to return to the office, there is not a solid argument to be made that your actions are discriminatory. However, if select employees are permitted to continue to work remotely while others are mandated to return, the employer may be venturing into a gray area.

If an employee feels one employee is being given special considerations (in this case being allowed to remain remote while others are mandated to return to the office), there could potentially be cause for action. The easiest and clearest remedy for this is to simply apply your remote work policy equally across the board.

• Communicate your expectations clearly with your employer in advance of any change.
• Offer employees a chance to have a dialogue and be heard in the decision.
• Most importantly, enforce your policy equally for every employee.
• Make sure you consider any employees working remotely as a part of disability accommodation so that you do not violate their rights.
   

Exceptions for the ADA
Under the Americans with Disabilities Act (ADA) employers are required to provide reasonable accommodations to individuals with documented disabilities unless doing so would place an undue hardship on the employer. Under the ADA, an employer may have to exempt employees with disabilities from any mandate requiring a return to the office.

One interesting case that addresses this issue is Martin v. Avant Publications, No. 3:22cv276 (M.D. Pa., 2024). In this case out of Pennsylvania, an employer allowed an employee to work remote due to a diagnosed medical condition. After more than two years of remote work, the employer mandated a return-to-work policy. The employee requested to continue to work remotely and was ultimately terminated. She filed a lawsuit alleging, among other things, wrongful termination in violation of the ADA, as well as a claim of retaliation. Though the case remains in litigation, in 2024, United States District Court Judge Julia Munley denied the defendant’s motion to dismiss.

This case offers an example of employers needing to find a balance between legally implementing a return to office policy, and ensuring you are not running afoul of any state or federal laws.

If you are an employer with questions or concerns about how to implement a return to office policy that minimizes your potential exposure to a legal challenge, give myself or any member of our employment law team a call. We are here to help.

Kevin Burke counsels employers on recent developments in employment law, and the implementation of policies and procedures which enable employers to be in compliance with federal and state laws. He can be reached at 716-854-4300 ext. 292 or [email protected]