The fallout provides a wake-up call for employers planning to bring their workers back

The controversy surrounding employers’ return-to-work initiatives has been reignited after another major company ordered its employees back to the office — full-time.

On Sept. 16, Amazon.com Inc. chief executive Andy Jassy announced that the company’s more than 300,000 corporate employees worldwide will be going back to their pre-COVID ways. In breaking the news, Jassy professed the benefits of in-person work, emphasizing how being in the office was better for learning, teaching, collaborating and developing a strong workplace culture — all of which he said had been proven since Amazon returned to a three-day in-office schedule in May 2023.

Other employers and executives have made similar comments, and while working from home to some extent seems like the new normal, a growing number of employers are attempting to re-establish the physical office — and finding resistance among their employees.

The backlash to Amazon’s announcement has been particularly fierce. This is partly because the company operates in the tech world, which has generally been more friendly to flexible work arrangements than other industries. But it is also because Amazon is one of the few major employers to mandate that its employees return to the office full-time, without a hybrid schedule. What was once standard has now become an outlier.

Amazon’s decision has reignited conversations about the rights of employees when facing a return-to-office policy, and what employers should keep in mind when bringing their workers back. Since the pandemic, many employees who have transitioned to working from home on a full-time or hybrid basis have come to view it as an entitlement. People are accustomed to the benefits of working from home, such as eliminating their commute, having a more flexible work-life schedule and more time with their families. However, even if such arrangements have been in place for years, they don’t necessarily translate into a contractual right.

One of the most common questions asked by employees facing return-to-office mandates is whether such a directive constitutes a constructive dismissal. Many of them, especially those who have been working from home for years now, may argue that it is. After all, being summoned back to the office is a major change to a fixed term of employment without their consent.

For an employee whose contract specifies a remote work location, or who took the job on that basis, working from home represents a significant term of their job. For many, it is a term without which they may not have accepted the position. For such an employee, a return-to-office directive would represent a significant change and would result in a constructive dismissal.

For employees who transitioned to working from home during the pandemic and have been doing so ever since, but whose employment contracts do not guarantee them that right, the implications of a return-to-office order is less clear. Working from home may only be a gratuitous privilege afforded by their employer, without amounting to a contractual term of employment. This may especially be the case where an employer has been clear that working from home is not permanent and is subject to change. In such instances, the change would not likely amount to a constructive dismissal for the employee if the terms of their employment, viewed objectively, do not include a right to continue working from home.

Two years ago, I began advising employers in these pages that if they were not going to require employees to return to the office at that time, they should reinforce, in writing, that they maintain the right to do so in the future. Ideally, they would have had employees sign contracts to that effect.

For companies wanting to call their employees back into the office, it is prudent to be clear about the changes they intend to make to their work arrangements. This allows for the chance to get ahead of any complaints.

Employees may request accommodation to continue working from home for reasons such as disability or family status, and employers must take these requests seriously to avoid potential claims of discrimination. However, if such an employee had worked from the office in the past, employers have the right to be skeptical and ask for substantial medical documentation, including potentially having them see the company’s doctor before acceding to the request. If the request is based on child or elder care reasons, employers can require the employee to make alternate arrangements and provide a reasonable time frame to do so, just as they could before COVID.