The Atlanta Journal-Constitution
Can’t return to office? Here’s what you can do
Q: I’ve been employed for almost 11 years as a bank analyst. I’m in my 40s with an autistic son in first grade. I have been working from home ever since he was born, because my team was located in another state and there was no need for me to come to the office.
I’m my child’s sole caregiver, as his father is physically disabled. We chose a school close to our home so I can run to there when needed (at least twice a week for meltdowns or bathroom help since my son is not completely bathroom independent).
Recently the bank decided on a return-to-office mandate of at least three days a week, with no exceptions. They plan to use badge access reports and set performance goals for hours in the office. While they haven’t given a firm date, we’re told that once the announcement happens, there’ll be no adjustment period. We would have to return immediately.
I’m looking for a new job. I thought I would retire here, and what’s happening now is so disheartening.
A: Putting out feelers for a more accommodating workplace is never a bad idea — but don’t leap just yet.
First, for every official policy, there’s often a corollary shadow policy being carried out by frontline managers who want to keep their teams happy and intact. Speak with your immediate managers and team to find out if they have been granted (or plan to assume) any discretion to apply the mandate as they see fit.
Second, “this will affect future performance reviews” is a few levels of urgency removed from “come in tomorrow or not at all.” In the interim, it’s “better to work with this employer who knows what you are capable of,” says Jack Tuckner of Tuckner, Sipser, Weinstock & Sipser, an employment attorney specializing in gender equity.
Tuckner recommends you approach your HR representative and management with a thoughtful, diplomatic explanation of how this new policy will affect you, emphasizing points that are relevant “legally, emotionally and practically.” Reiterate that as primary caretaker of a child (and of a spouse?) with disabilities, you would face significant challenges in trying to comply with the new in-office policy. (Note: Federal rules include autism as a disability, defined as a “physical or mental impairment that substantially limits one or more major life activities.”)
Collect data and performance reviews attesting to your contributions and achievements and outline “how you’ll be better able to optimally serve the company’s interest” by continuing to work remotely, Tuckner says. As a compromise, he adds, you could offer to use unpaid leave under the Family and Medical Leave Act when you’re called to your son’s school. According to Tuckner, people who qualify for the FMLA’s 12 weeks of unpaid, job-protected leave per year can take it intermittently in increments as short as an hour.
As always, submit your explanation in writing or follow up with a summary email to document your conversations.
According to Tuckner, “no exceptions” often means your employer “(doesn’t) want to hear all of your nonprotected problems.” As a caregiver for a child with a disability, Tuckner says, you represent a “valid exception” that an employer trying to heed anti-discrimination laws and policies would do well to consider. For example, Tuckner notes, although you may not personally have a disability for which you could request a reasonable accommodation under the Americans With Disabilities Act, the ADA has an “associational provision” that prohibits your employer from discriminating or retaliating against you on the basis of your relationship with a disabled person.
And your state or locality may offer even stronger protections than federal law. Four states and nearly 200 cities and counties have family responsibility discrimination laws that specifically protect parents and other family caregivers.
Even if an across-the-board in-office mandate is legally justifiable, Tuckner says, mentioning FMLA leave and “protected attributes” such as disability should give your employer pause about refusing to accommodate you. Especially when you have years of evidence that working remotely has been neither a hardship for your employer nor an impediment to your performance.
Ideally, once you have made your case to your employer, the reaction will be supportive and accommodating. But that presumes that the company would rather retain employees than lose them. Yours would not be the first employer to suddenly throw down an unpopular mandate in hopes of encouraging voluntary attrition to cut costs, or “quiet firing.”
Ultimately, policies like these disproportionately disadvantage many workers for whom workplace flexibility is essential to high performance: people with disabilities, neurodiverse workers, caretakers and parents — particularly mothers, but also fathers who dare to regard child-rearing as more than a weekend gig. Despite the progress and promises made about balance, diversity, equity and inclusion, the message sent by inflexible employers is clear: We don’t want your kind here.
If your employer happens to fall into that category and responds to your diplomatic request with a shrug, then, yes, finding another job sounds like your only option. Before quitting, however, Tuckner recommends you take your well-documented conversations and evidence to an employment attorney who might help persuade your employer to ease your departure with some kind of severance package.