Workers aggrieved by RTO orders have virtually no legal way to fight back

This is a reality that remote workers in the US are either facing or preparing for – some of them wondering if 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 president of employment litigation at the law firm in California, West Coast Trial Lawyers.

When Amazon announced plans last week to end remote work and require corporate employees to be in the office five days a week, some employees were quick to criticize the megacorporation’s decision on an internal Slack channel.

The Seattle tech giant’s move comes after other major companies, including Walmart, recently tightened back-to-office protocols. And the latest push by companies to bring workers back to their desks could spark an even wider RTO trend.

Some workers have filed lawsuits against their companies or charges with the National Labor Relations Board over the RTO mandates.

But remote workers who simply claim that returning to the office is an inconvenience to their lifestyle have “zero chance” of fighting the RTO’s mandate through 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 termination is not illegal. At-will employment also means that an employee can resign at any time.

“Unless you can assert some type of statutory rights, an employer can do whatever they want,” including forcing employees to return to the office full time, Zambrano said.

Domenique Camacho Moran, a partner at the New York law firm Farrell Fritz, which tends to represent management in employment matters, told BI that most employees “don’t have a choice” about how it is job done.

“In the absence of a contractual obligation, it is the employer’s decision whether or not a job should be performed remotely,” Camacho Moran said.

Even if an employee was hired specifically as a telecommuter, unless a written contract guaranteed telecommuting for a set period of time, that employee would still have no legal basis to reject an RTO policy, the lawyers said.

“There’s no law in any state, there’s no law at the federal level, that gives anybody the right to just say, ‘I want to work from home, and that’s my right.’ So until that changes, you have to fall 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 denies 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, Camacho Moran said, just because an employee has an illness or disability “doesn’t mean telecommuting is the right accommodation.”

“They don’t get to choose their accommodation,” Camacho Moran said. “They have to be accommodated if they have a disability that requires accommodation, but it’s not a choice in terms of accommodation.”

Reasonable accommodations under the ADA may include changing a work schedule or work set, as well as switching to telecommuting.

Assuming an employee’s work can be done remotely, and the employer doesn’t allow an employee to work from home for a legitimate medical reason, the employer would open itself up to potential legal action, Zambrano said.