As companies push forward with their return-to-office (RTO) policies, many unknowingly step into legal minefield. The shift back to in-person work presents a host of challenges—especially for employers balancing productivity with legal obligations. Whether it’s handling accommodation requests, avoiding discrimination claims, or ensuring compliance with employee contracts, the risks are real and far-reaching.
RTO and the Risk of Discrimination Lawsuits
One of the biggest legal pitfalls in enforcing RTO policies is the potential for discrimination claims. The most common mistake? Allowing some employees to work remotely while requiring others to return—without a clear, justifiable reason. If these decisions appear arbitrary or unfair, employers can face accusations of favoritism or discrimination. The risk increases if the RTO requirement wasn’t clearly outlined in an employee’s original contract.
The Delicate Balance of Accommodation Requests
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations for employees with disabilities. They aren’t, however, required to grant every request—only to engage in an interactive process to find a fair solution. Since the pandemic, remote work has become one of the most common accommodation requests, creating new challenges for HR teams.
The biggest mistake? Employees often bypass HR and go straight to their managers, leading to inconsistent or improperly documented decisions. Clear, well-communicated procedures are critical to ensuring employers fairly handle accommodations, preventing misunderstandings and potential legal claims.
How to Avoid Discrimination Pitfalls
Discrimination claims often arise when accommodation requests aren’t handled consistently. If remote work or other adjustments are granted to some employees but denied to others without a clear rationale, legal trouble can follow. Employers must regularly review policies to ensure compliance with the ADA and the Family and Medical Leave Act (FMLA).
Beyond disability accommodations, employers may also face requests related to caregiving responsibilities, which aren’t covered under the ADA. These should be considered under other legal frameworks, such as the FMLA, and applied consistently to avoid claims of unfair treatment.
Contractual Conflicts: The Fine Print Matters
Another legal hurdle? Employee contracts. Many employees have agreements outlining their work arrangements, and not all of them include language allowing for a sudden return-to-office mandate. Employers can reduce legal risks by ensuring RTO policies are clearly addressed in offer letters and employment contracts, giving them the flexibility to adjust work arrangements when needed.
Keeping Employee Relations—and Compliance—on Track
Inconsistent RTO policies can breed resentment among employees and open the door to discrimination, harassment, or wrongful termination claims. If expectations aren’t clearly communicated or if exceptions aren’t well-documented, employees may argue they were unfairly treated—or even retaliated against for raising concerns.
HR teams must ensure RTO expectations are consistently applied and clearly communicated to all employees. This includes handling performance reviews and disciplinary actions carefully—if attendance policies were vague or unevenly enforced, employees could claim they’re being unfairly penalized.
The Shift Toward Hybrid and Remote Work
As the RTO debate continues, one thing is clear—flexibility is key to attracting and retaining top talent. Many employees aren’t resisting RTO because they dislike in-person work, but because they’ve experienced the benefits of remote and hybrid setups. Companies that ignore these preferences may face backlash, talent loss, and even legal battles.
In the face of these challenges, the best approach for employers is to prioritize clear communication, fair policies, and transparency in decision-making. Not only does this help mitigate legal risks, but it also gives companies a competitive edge in today’s evolving job market.
© 2025 Lynne Curry, PhD, SPHR, SHRM-SCP
If you found this article valuable, you might also enjoy, https://workplacecoachblog.com/2024/05/the-return-to-the-office-battle-whos-going-to-win/.
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Lynne, You’ve produced another stellar, comprehensive, incite full article – with another built-in-conundrum.
Your sentence “The risk increases if the RTO requirement wasn’t clearly outlined in an employee’s original contract.” is more than a mouthful, and begs a lot of elucidation.
I think it was Dorothy who commented rhetorically to Toto “I don’t think we’re in Kansas anymore!” As we surely are not when discussing work schedules.
And, believably and fully expected of and by many, there are those who are going to cling to the past, and those who are going to blast- haphazardly in many cases – into the future.
Anyone who is going to stringently cling to their ‘contract written in 2018 (obviously pre-Covid) to absolutely mandate the work structure of today…is beating a long-dead horse – legally beating it maybe, but BEATING IT nonetheless. OTOH, anyone in this day and age who is mandating changes made to accommodate that world-wide business changes that occurred as a result of the Covid debacle to be universally acceptable today is pulling a Soapy Smith move.
Neither stance is unilaterally correct or simply acceptable.
Due to the insidious patchwork of ‘fixes’ that were attempted/implemented/tolerated in the effort to keep the world turning, many good, innovative, and workable things came about under the circumstances of the times. But that does not arbitrarily make them THE answer, or unilaterally endorse them as we reset to a new norm.
Lucky businesses made changes in a legal and orderly manner; step-by-step. They are probably the ones that are slowly but surely resuming in-office changes without too many problems.
Many others hip shot their changes and need to make a wholesale review/reset to avoid continued problems. But, as I started, the ENTIRE GAME changed between then and now. And even if Kansas is still on the map there’s been enough external legal, political, and business changes that have occurred outside of the individual sphere-of-work/employment of many employees, employers, technology, and jobs/work that ‘hanging your hat on the way it used to be’ is not going to apply; it’s likely not even possible to simply do it that way.
Terrific comment! I easily would have been one of those employers who didn’t specify anything in the contract, and that’s partially why I wrote it, so employers who know what might come down the pike unless they created clear contracts. And, were I an employee, I’d want to work remote:)
p.s., love the “incite-full”
One of my first thoughts on reading this was, “How many offices/businesses HAVE RTO policies in work contracts and job descriptions for jobs that existed before the pandemic and therefore before most remote-work arrangements? It’s almost a rhetorical question, to which the answer is: not many. Therefore, many employers are in the situation of having allowed or even mandating remote work during the pandemic, as an exception to the usual policy, but without quite stating it that way. There was a lot of vagueness, too, about when remote work might cease as an option. One way might be to have conversations with employees about how they might prefer their work arrangements, would they consider hybrid arrangements, what would it take to bring them back to the office. Some interesting insights might emerge on the employee side. Another possibility: cash incentives for those who return to work. These would have to be carefully set out to avoid the appearance or reality of discrimination in favor of RTO-ers. Perhaps rotating groups of employees might RTO and then have the option of remote work, followed by another rotation of employees who RTO. And in a world of at-will employment employers may simply find other justifications for firing employees who do not comply. There’s a lot of surface thinking out there, and it is widely distributed in workplaces, though perhaps not uniformly, though.