Employers who have had to close down because of the COVID-19 pandemic are in uncharted waters, and have been for weeks–starting with the abrupt need to furlough or lay off workers or transition them to a work from home. And now, just as they're finding a rhythm (hopefully), it's time to get back to the workplace.

We recently covered how to prepare the workplace to minimize the risk of exposure and spread of the virus, but what about the legal and practical logistics of deciding who comes back to work? Some employees won't want to come back, either because they're afraid of contracting the virus, or because they find they're making more in unemployment benefits. Or what about employees that you know are at higher risk for suffering complications if they contract COVID-19?

A recent webinar hosted by national law firm Dykema offered answers and legal guidance to these and other questions.

Who comes back first?

If you're not opening at full capacity or are doing a phased re-opening, there may be some concerns about which employees to call back first. "Many employers are suggesting that they allow employees the choice to return to work," said Dykema's Arlene Switzer Steinfield, adding that if this is the case, "ensure that you document the voluntary nature of each employee's return to work. Make sure there's evidence that you did not force them back to work."

If you have union workers governed by a collective bargaining agreement, it likely has recall provisions in place that your company will want to follow. Additionally, if your employee handbook lays out policies for furloughs and recalls, that should be a guide.

Finally, if your executive team laid out any plans or expectations when first closing down the workplace and sending people home, you should do your best to ensure those expectations are met. "In case the employee alleges that the employer has discriminated against them by not recalling them, one factor that courts look at is whether the employer followed its own policies and statements," Steinfield said, adding that it's also important to maintain goodwill and trust with employees by following through on your word.

After all of those considerations are addressed, employers can start to put together a strategy for calling employees back, but they must still pay attention to protected classes and protected activity. "Don't show a preference for those who are not entitled to FFCRA, sick leave or other benefits," Steinfield advised. "That could possibly get you in trouble under retaliation claims."

Employee fear is not an excuse to stay home

When it comes to not wanting to come back to work, "the main reason we've heard is that the employee is generally fearful of contracting the virus," Dykema's Elisa Lintemuth said. "That does not allow an employee to take protective leave. They can be deemed to have resigned."

That's not to say the employees' fear should be disregarded. As an employer, you should make an effort to address the fears and create a comfortable and safe environment.

Another reason employees might not want to return just yet: they're cashing in on unemployment. Through the end of July, the federal government is kicking an additional $600 for individuals receiving state unemployment benefits. "Many workers may make more money sitting at home collecting unemployment," Lintemuth said. "Understandably, they're not eager to return."

However, refusing to come back because they're making more money at home is not good cause for failing to report to work, and these employees can be deemed to have resigned.

Sidelining higher-risk individuals: Don't do it

There are identified classes of people who are at greater risk of suffering complications if they contract COVID-19, including the elderly, those with underlying respiratory and heart conditions, and those with diabetes. Understandably, employers might be hesitant to recall these employees–but don't.

"Just because somebody is at a greater risk, you can't justify withholding the opportunity to return to work," Steinfield said. "There has to be a demonstrable likelihood that the employee poses a direct threat to themselves or others in the workplace."

The employer can offer to let employees at higher risk the option to work remotely or delay their start date, but in the end, the choice should be up to the employee, regardless of what the employer thinks would be best.

In the same vein, employers might be tempted to factor in whether an employee has children and may not have childcare arrangements as they recall employees. "Again, it is the employee's choice about how they will handle childcare responsibilities," Steinfield said.

But don't run afoul of the FMLA or ADA

"Employees who have disabilities and serious medical conditions are still entitled to FMLA and ADA coverage," Steinfield noted. "If you have an employee who raises a specific medical reason, that request should be evaluated under the relevant law."

Steinfield also pointed out a situation that many employers may encounter as they recall employees who have been working remotely: Individuals who had previously been denied ADA accommodations to work from home wanting them now.

"Just because an employer allowed an employee to work remotely during the pandemic doesn't mean that employees are able to perform all the duties of their job from home on a prolonged basis," Steinfield said. "Don't accept the argument that they did it from home before, so it should be a reasonable accommodation now. The same standards prior to the pandemic still apply, but employers may have additional information about whether remote work is possible. Was the employee similarly productive at home? Were there certain essential tasks they really couldn't perform remotely?"

When it comes to FMLA, sick leave, or leave granted under the Families First Cornavirus Response Act, employers also need to ensure their recall efforts aren't discriminatory. "If you're doing a reduction in force due to a reduction in work and taking only the employees out on leave, that's going to be a problem," Lintemuth said, adding, "Employees who have not exhausted available leave would be entitled to take that leave for eligible reasons after they return. If they need to care for children due to school closure, that employee would be entitled to take whatever paid leave they might have under FFCRA."

Testing, screening and employee privacy

ADA, HIPAA, EEOC… There are a lot of regulations that come into play when discussing employee health and safety, and right now, they're more confusing than ever. "We're being asked to walk a tightrope," Steinfield said. "Some of the rules prior to the pandemic are relaxed, some are in full force."

"Normally, ADA prohibits medical examinations unless they are job related," Lintemuth said. "In March, the EEOC issued guidance that during the COVID 19 pandemic, employers are permitted to take this step." She noted that the EEOC has compiled a list of symptoms about which an employer can ask, and to avoid asking about anything related to other health conditions.

"In addition, the EEOC has recently stated that employers may choose to administer COVID-19 testing before they're allowed to re-enter the workplace, but employers need to follow the ADA and ensure the tests are accurate and reliable."

Also important: any information collected about an employee's health must be kept confidential and kept separately from personnel files. In addition, this information should be considered wholly separate from that used for the employer-sponsored health insurance plan.

This list is by no means exhaustive, and throughout their webinar both Lintemuth and Steinfield emphasized that regulations will vary by state and locality, so make sure you're checking whatever resources are available specific to your geographic area. In addition, the DOL, EEOC and other government agencies continue to update their guidelines and put out new FAQs and advisories.

Though following all of these developments is time-consuming and headache-inducing, it's well worth the effort to stave off bigger issues down the road. "You want to be clear that your recalls are based on legitimate and non-discriminatory reasons," Steinfield emphasized.

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Returning to the workplace: Navigating the legal obstacles

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