Uncertainty surrounding when employers might return employees to work has given way to uncertainty about how. Employers considering reopening in the coming weeks will be faced with dramatically different workplaces and a worried workforce. Flexibility and responsiveness to COVID-19 issues—from workplace configuration and location(s) of workers to employee leave requests and evolving health and safety standards—will be crucial. Once shelter-in-place orders have been lifted and businesses permitted to reopen, employers will need to proceed with caution. Wading through the patchwork of requirements and understanding what guidance or recommendations are mandatory is the first step in preparing a return-to-work plan.

A phased approach to reopening.

White House guidance suggests that businesses should begin phased openings. State and local governments are issuing orders allowing for phased reopenings with specific health and safety protocols. To accomplish this successfully, employers may (based upon government guidance or otherwise), open their businesses in phases by staggering the timeline for returning employees to work. Employers should also consider which positions will be most essential for the business and identify ways to train employees in these areas, if available employees lack the necessary experience and expertise.

Considerations regarding returning to work furloughed or separated employees.

When dealing with furloughed or laid off employees, one consideration is the impact that staggering the return to work may have on employee eligibility for unemployment insurance and the enhanced relief under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Under certain scenarios, an employee may benefit more financially by remaining out of work in the short term rather than returning to work and potentially becoming ineligible for federal supplemental unemployment benefits. A highly individualized analysis is required as each state has its own weekly income threshold.

Another consideration for employers involves implementing procedures for returning employees who were formally separated from employment (rather than a paid leave or unpaid furlough). Such employees may need to be re-enrolled in insurance plans, and asked to re-sign any applicable employee handbook acknowledgements or agreements (such as restrictive covenant or arbitration agreements).

Considerations regarding high-risk employees.

Special attention will be needed for employees who are designated "high risk" for developing severe symptoms if they contract COVID-19. The Centers for Disease Control and Prevention (CDC) has stated that "older adults" and people who have "severe underlying chronic medical conditions like heart or lung disease or diabetes" seem to be at higher risk for developing more serious complications from COVID-19. Businesses will need to determine whether such employees should be required or even asked to return. This entails balancing business needs against potential violations of the Americans with Disabilities Act (ADA) and other anti-discrimination laws.

Employers, even if permitted to ask high risk employees to return to work, must be mindful about addressing and possibly accommodating such employees' concerns. Clear communications to employees regarding steps being taken to protect them will alleviate most concerns; one option is for businesses to use anonymous surveys to gauge employees' concerns and willingness to return to work.

Considerations if employees refuse to return to work.

Employers should anticipate that even non-high risk employees may be reluctant or refuse to return to work out of fear for their own health or the health of their household members; because they are unable to obtain childcare for minor children; or for other reasons related to COVID-19. Employers with fewer than 500 employees may be required to provide paid or partially paid leave to employees who are unable to return to work for these specified reasons under the Families First Coronavirus Response Act (FFCRA).

Employers who have more than 500 employees or who are otherwise exempted from the FFCRA may still be required to provide some medical leave pursuant to applicable local or state laws. They may also be required to provide leave under the Family and Medical Leave Act (without the FFCRA enhancements), the ADA or other state or local laws. Uniform criteria should guide employers when evaluating requests for leave to avoid claims of unfair treatment or discrimination.

Consideration of logistical challenges.

As employees return to work, social distancing directives may require employers to reconfigure workspaces. Businesses in office buildings must consider novel issues like maintaining social distancing while riding in an elevator (and how long those elevator lines will be). Larger employers may consider forming "teams" to work on alternating days or weeks to adequately manage the return to work and limit workplace occupancy levels (which may also be required). Additional options may include three or four day work-weeks, or staggering shifts on a daily basis, Monday to Saturday. Employers must be mindful, however, of resulting wage-and-hour implications.

Considerations for enacting social distancing protocols.

The CDC has issued general guidelines and recommendations for mitigating the chances of contracting COVID-19 in the reopened workplace, including:

Various social distancing strategies may be appropriate depending on the nature of the business. For example, businesses may implement proper signage, use of personal protective equipment (PPE) like face masks, establishing maximum capacities for common areas like restrooms and holding fewer in-person meetings.

Again, it is key for employers to be flexible and responsive to their workers' needs and, of course, be mindful of all applicable state and federal employment laws.

Edward Diaz and Erika Royal are labor and employment partners in the Miami and Fort Lauderdale offices of Holland & Knight, respectively. Diaz is head of the firm's national labor, employment and benefits group.