Return to office issues

With the downward trend of Covid-19 infections due to effective vaccines, the lifting of various government restrictions, and the recent declaration of the World Health Organization regarding the end of the Covid-19 as a public health emergency, employers have been keen on exploring return to office arrangements. Whether it is to promote office culture and workplace camaraderie or increase productivity via in-person collaboration and communication, various considerations are on the table for employers to revert to in-person working arrangements. Included in these considerations are various return to office issues, such as the extent of reasonable accommodation requirements and dealing with employees who refuse to physically report for work or insist on a work-from-home (‘WFH’) arrangement.

Generally, absent any government restrictions on operations, mobility, or use of space or an existing agreement to the contrary, employees do not have a right to a WFH arrangement. This arrangement is based on the mutual consent of the employer and the employee, and any offer on the part of the employer for one is purely voluntary. However, there are certain instances where it is possible for an employer to be required to implement a WFH arrangement.

First, employees who perform night work (which is at least seven consecutive hours of work from 10:00 pm to 6:00 am) are entitled to certain protections. Specifically, employees who are certified by a competent public health official as unfit to render night work are required to be transferred to a similar and equivalent position for which they are fit to work, whenever practicable. Therefore, if the job for which they are fit to work is in a WFH arrangement and absent any other practicable arrangements, the said employee may invoke work in the said shift as a matter of right.

Second, employers are mandated by law to provide reasonable work accommodations for employees who have mental health conditions. However, these are also based on an agreement between the employer and employee. Denial of reasonable accommodations to employees, where the said accommodations are needed and do not impose a disproportionate or undue burden on the employer, is discriminatory.

In cases where employees refuse to heed a return to office mandate, the employer should take due care in its next steps which then depend on the employee’s reason for refusal. If the reason for refusal is health-related, employers may consider dismissals due to disease under article 299 of the Labor Code, which require a certification from a public health authority that it is prejudicial for the employee’s health to continue physically reporting for work and the disease is non-curable within a period of six months. While not required by jurisprudence, it may also be beneficial for employers to show good faith prior to invoking this ground. Some markers of good faith will be attempts to look for positions that can accommodate a purely WFH arrangement and, assuming no such positions exist, support for its business decision to implement a hybrid work arrangement, if only to present an argument against a possible disparate impact of the return to office mandate and discriminatory claims.

Employers may also consider placing employees who refuse to physically report for work on leave, provided that the conditions in their policy governing these leaves are met. Unauthorised leaves or absences incurred due to insistence to WFH may be the subject of willful disobedience or insubordination. To invoke insubordination as a ground to dismiss an employee, the following requisites must be present: (1) the employee’s assailed conduct must have been willful or intentional, with a wrongful and perverse attitude; and (2) the order violated must be based on a reasonable and lawful company rule or policy and made known to the employee and must pertain to the duties for which he has been engaged to discharge.

A valid dismissal due to insubordination is decided on a case-to-case basis and may turn on the reasonability of the employer’s return to office directive considering the totality of circumstances. For example, disciplinary cases against employees who refuse to physically report for work due to health conditions may give way to possible discriminatory issues or a case for constructive dismissal, depending on the circumstances. At any rate, even if the employee is not suffering from any health condition, a single instance of refusal to physically report for work is not always a ground for termination – the penalty still has to be proportionate to the offence, which is determined on a case-to-case basis.

Employers may have to contend with possible discriminatory effects of a return to office mandate, especially for employees who belong under protected classes. In testing employer policies for discriminatory effects, the Supreme Court explained that disparate impact is present when a policy, although is on its face valid, still has a prejudicial effect on a certain class. The court, however, said that despite this disproportionate effect, the policy imposed by an employer may be declared legal if such policy is proven to be ‘reasonable, despite its discriminatory, albeit disproportionate effect,’ which can be proven if it is shown that it is required by the demands of the business and there is no other policy that will better accomplish this purpose.

Ultimately, while employers, as part of their management prerogative, have a right to change work schedules and voluntarily offer a WFH set-up, they should still take due care in examining these mandates for any discriminatory effects, considering the reasonable accommodations required by law for protected classes and the disparate impact of the said policy on certain employees. If employees invoke health-related reasons as a ground for their refusal to physically report for work, employers are not without options and may consider terminations due to disease. Moreover, employers, in exploring disciplinary actions against employees who refuse to heed a return to office mandate, should always bear in mind the reasonability of their order and the proportionality of the penalty to the offence, which are decided on a case-to-case basis.