Return to Office Mandates: Best Practices and Minimizing Litigation Risks

The transition to in-person work after years of permitting and promoting remote work presents unique challenges for nonprofit organizations. While returning to the office (RTO) can enhance collaboration and workplace culture, nonprofits must carefully balance operational needs with employee well-being.

Given the mission-driven nature of nonprofits, employee satisfaction and retention are particularly critical. Many employees have grown accustomed to remote work, and implementing RTO policies without careful planning can lead to disengagement, resignations, and even legal risks.

This article addresses the potential pitfalls of mandatory RTO policies for nonprofit organizations and proposes solutions to achieve each organization’s goals and maintain employee well-being.

Key Challenges of RTO

Employee Resistance and Diverse Needs

One of the biggest challenges posed by mandatory RTO policies is employee resistance. Many workers, particularly those from historically marginalized groups, have reported that remote settings eliminate some uncomfortable workplace dynamics some have previously experienced in the office. Returning to the office can reintroduce microaggressions, exclusionary behaviors, and commute-related stressors, which disproportionately affect employees of color and those with disabilities.

Talent Loss and Retention Risks

Forcing employees back into the office without sufficient flexibility can lead to increased resignations. Many organizations have already reported losing key talent due to rigid RTO policies. Moreover, employees who remain may become disengaged — a phenomenon often referred to as "quiet quitting," where workers comply minimally with job requirements but lack motivation and engagement.

Enforcement Challenges

Nonprofits also struggle with consistent enforcement of attendance policies. Some employees may comply with RTO mandates, while others find ways to circumvent them. For example, some employees may engage in "coffee badging" — coming to the office briefly to appear present while primarily working remotely. Unequal enforcement can damage morale and lead to perceptions of favoritism for certain groups over others. 

Legal Risks to Consider

Reasonable Accommodations: Uncertain Legal Precedents

Employers should carefully consider requirements to provide permanent remote work options as a reasonable accommodation under the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA). While no definitive court rulings mandate remote work as an accommodation, the common thread is that employers must assess remote work requests on a fact-specific case-by-case basis. Additionally, case law suggests that employers must justify why in-office work is essential for certain roles. This is particularly important when the employee’s function can reasonably be performed away from the office with help from technology like Zoom.

Discrimination and Harassment Concerns

Mandatory RTO policies can also expose nonprofits to discrimination claims. Disabled employees may claim return-to-work mandates create a disparate impact on people with certain physical or mental conditions. California state and federal courts have split on whether one-size-fits-all policies that impact all employees equally regardless of their disability status are permissible, or whether employers must create exceptions for employees with disabilities to defeat discrimination claims.

Wage and Hour Compliance

Nonprofits must remain vigilant about wage and hour laws when implementing mandatory RTO policies. Key concerns include tracking non-exempt employees’ work hours, ensuring proper meal and rest breaks, and managing overtime. Hybrid work environments can complicate timekeeping, so organizations should implement clear policies and technological solutions to ensure compliance. Employers may also benefit from implementing management training to ensure managers can confidently and accurately track non-exempt employee hours — wherever they work.

Expense Reimbursements

During the pandemic, the breadth of work-from-home expenses covered by employers expanded dramatically. Most employers covered a portion of employees’ internet and phone bills, while others considered covering other home expenses such as utilities. As employees return to the office, the question arises: Are employers still responsible for these costs? California law generally requires employers to reimburse employees for necessary work-related expenses, including hybrid work expenses. Nonprofits should establish clear guidelines on expense reimbursement for employees who continue working remotely part-time.

Local Ordinances & Flexible Work Policies

Local ordinances may also require employers to implement flexible workplace requirements. For example, nonprofits operating in California must also comply with various local ordinances that impact flexible work arrangements. Examples include:

• San Francisco’s Family Friendly Workplace Ordinance grants employees the right to request flexible work schedules for caregiving responsibilities. Employers must engage in an interactive process before denying such requests.
• Berkeley and Los Angeles Fair Workweek Laws require certain employers (which can include nonprofits) to provide predictable work schedules, limiting last-minute changes that could disrupt employees’ personal responsibilities.

Given the trend toward adoption of such regulations, nonprofits should proactively assess their policies to ensure compliance and maintain a fair, employee-friendly approach to RTO.

Best Practices for a Smooth RTO Transition

1. Establish Clear and Predictable Policies

Nonprofits should create transparent, written RTO policies that provide clarity on in-office expectations while considering employee feedback. Gradual rollouts — such as starting with a hybrid model before moving to full-time in-office work — can help ease transitions.

2. Ensure Fair and Consistent Enforcement

To avoid perceptions of favoritism, nonprofits must apply RTO policies consistently. Leadership should communicate clear expectations while remaining flexible for employees with legitimate needs for continued remote work.

3. Optimize Workplace Efficiency

A successful RTO strategy goes beyond requiring employees to be physically present. Nonprofits should invest in workplace improvements that foster collaboration and efficiency, such as upgraded technology, better office layouts, and streamlined workflows. Bottom line, employers should create and maintain measures that ensure employees feel welcomed and safe in the workplace. 

4. Prioritize Safety and Compliance

Returning to the office also means ensuring a safe work environment. Nonprofits should maintain compliance with workplace safety regulations, including by establishing injury and illness prevention plans and workplace violence prevention policies. Given the ongoing public health landscape, organizations should also remain adaptable to evolving health and safety guidelines.

Navigating RTO policies requires a thoughtful, balanced approach. While in-office work has undeniable benefits, organizations must also acknowledge the shifts in workplace expectations and legal risks associated with rigid mandates. By implementing clear policies, maintaining flexibility where possible, and ensuring compliance with local and federal laws, nonprofits can create a return-to-office strategy that benefits both employees and the organization’s goals.

Chandra Andrade is a partner and Benjamin Buchwalter is special counsel in Farella Braun + Martel’s Employment Group. Cynthia Rowland is a partner in the firm’s Exempt Organizations Group and founder and host of EO Radio Show podcast.