'The impact is going to be significantly different if it's a return to office mandate for all employees or for some employees'
Remote work and return to work mandates have become a hotly disputed area for employers and workers, creating legal and management issues for HR leaders.
According to Aleksandra Pressey, partner at Williams HR Law, many of these problems could be avoided with a bit of foresight.
“It's possible to address an issue before it becomes a huge escalation,” she says.
“In an ideal situation, part of what an employer would do is set out the parameters of the remote working relationship,” she says. “For example: ‘The remote work is temporary or subject to reconsideration, and we reserve the right to recall you to the office'.”
These expectations should be laid out in a remote work agreement that clearly changes the employment terms without replacing the original employment contract.
But not many companies had the luxury of planning in 2020 when pandemic restrictions forced offices to go remote, and many employers “defaulted into a remote position," Pressey explains.
In these cases, workers hired during that period might assume their remote status is permanent.
“If there's not really any clear communication that the employer has the specific right to recall the employee, then there's a strong argument that the employer has accepted the remote work arrangement,” she says.
In this unclear space, abrupt policy shifts can come across as breaches of contract. And if an employer decides to call workers back to the office, “the employee may very well say, ‘The remote work is a fundamental term of my employment relationship, and therefore I'm not coming back", Pressey says.
When deciding to mandate a return to office, employers may still have options. One involves offering a new employment agreement with what lawyers call “fresh consideration". This could mean a signing bonus, a promotion or a new benefit—anything that the employee isn’t already entitled to.
“If the employee agrees to come back, then you don't have an issue,” Pressey says.
Another strategy is extended notice. The employer can tell employees that their current terms will expire after a set period—sometimes up to 24 months. At the end of that time, the employee is offered the same job, but on new terms that require some in-office work.
Still, this has its own risks.
“If an employee takes this badly, you now have an employee who's potentially not being very happy in your workplace and harming workplace morale,” she says.
When making these decisions, communication can be just as important as contracts.
“The impact is going to be significantly different if it's a return to office mandate for all employees or for some employees,” she says. “The more you can be transparent about what you're doing and why, the more notice that you can provide, the less likely employees are going to feel taken aback.”
That becomes particularly important for workers who have structured their lives around remote work, for example those who need to pick up children or care for elderly parents.
If employers don’t have a clear reason for the change, it can cause problems fast.
“If your entire office is working remotely, they've been more productive than ever, your profits are higher than ever, and you're essentially saying to employees, ‘We want you back because we want you back’—those types of communication strategies tend to not land well,” she says.
This highlights the importance of updating employment contracts and HR policies.
“If you're doing this work anyway, that's a good opportunity to address some of these issues,” she says.
That advice holds even when a remote arrangement is being extended.
“We're seeing, for example, organizations allowing an employee to work remotely from a different country for six months,” she says. “If you're going to be allowing one employee to do something, and you're not going to be allowing everybody else to do it, you have to have a very good reason as to why.”
