There's no playbook for reopening during a pandemic. As an employer, the legal risks are almost as concerning as the health risks. Emergency updates to existing employment laws and regulations make advanced (and flexible) planning that much more important. Your focus on clear communication and keeping employees healthy is the best way to minimize potential legal headaches

Make the right rehiring decisions.

Some companies won't bring back all employees at once. Deciding who to bring back could be more challenging than originally deciding who to let go, and all the same laws and regulations apply. To avoid discrimination issues, however, you'll want to first have rehiring criteria in place, then decide who meets the criteria. Look at the job duties, not the individuals. Favor objective criteria over subjective attributes for determining reliability and performance. For instance, if you'll be operating on a skeleton crew, calling back employees who are cross-trained to perform multiple jobs makes more sense than calling in someone with a more focused skill set.

Be cautious not to choose based on protected characteristics. For example, don't bring back only men based on your perception that female employees may have childcare responsibilities, or skip over older employees who you suppose may be more susceptible to illness. Even if you are looking out for someone's best interests, you could still be accused of disparate treatment.

What if someone doesn't want to come back?

Let your employees know there is flexibility on their return to work, particularly if teleworking is an option. Let employees then tell you if they do not want to or cannot return to work. Evaluate each situation and react appropriately. Employees with relevant health conditions may be better off with a flexible shift, working from home or on unpaid leave. Age alone is not a sufficient reason for staying home, but advanced age combined with a health risk (like cancer) may be. Work with employees to make the accommodation, versus making the decision for them and risking a disability claim. The Americans with Disabilities Act has not been amended for COVID-19, and "classic FMLA" still applies as it did before the apocalypse.

Some employees will be concerned about returning to work, so be understanding. Before reopening, take all safety measures recommended by the CDC. As you announce your reopening, explain the measures you've undertaken for their safety and invite employees who feel they may be covered by the ADA, Emergency Paid Sick Leave or Family and Medical Leave Act to come to you to discuss potential solutions and accommodations. Also consider empowering employees to offer suggestions for improving the process and safety protocols. Make sure to communicate that you, as the employer and likely someone who will also be returning to work, have every interest in making sure things are safe, clean and ready.

To test or not to test? 

The Equal Employment Opportunity Commission is allowing employers to test employees for COVID-19, and having a testing process in place at your facility can help minimize the chance of future employee claims. If your company does test for COVID-19, you'll want to pay for the test and keep the results confidential. Some employers have discussed testing before employees return to work, but that adds complexity and removes some of the control.

At the very least, employers should implement a scripted, consistent screening process to make sure symptomatic employees are prevented from sparking an outbreak just as things are getting going again. The particulars of your screening process will depend upon your industry and workforce but should be consistent with federal and local guidance, and should be vetted by qualified employment counsel.

If your screening process is inadequate and an employee returns to work with coronavirus, your company could be liable for failing to provide a safe workplace. Assuming an employee could prove that the virus was caught at work, common wisdom suggests her remedy would lie in workers' compensation, similar to an ankle sprain or hurt back (and an insured risk). If an employer, though, fails to take reasonable steps to prevent the infection (or any other workplace harm), the employer opens themselves up to other potential and more consequential liability (which may or may not be insured).

Maintain workplace safety.

We all have to adapt to the "new normal." The Occupational Safety and Health Administration recently issued guidance for reopening businesses. In addition to hand-washing and use of personal protection equipment, employers should review and implement industry specific guidelines and consider work-from-home options.

Be smart and minimize the risk of infection by providing your employees with adequate space and appropriate PPE. If you're requiring PPE, pay for it. Requiring employees to reimburse the company for their PPE may raise Fair Labor Standard Act concerns.

Consider offering shift rotation or work-from-home options to increase space between employees. If your office has had an open floor plan, look into partitions, or map out "traffic plans" on the floor to keep employees from bumping into on another as they move around during their shift.

Open communication is more important than ever. You don't want to get sick and don't want your employees to get sick either.

Stay positive.

Presumably, we all want to be good employers, and doing so means that we must be mindful of the applicable employment laws and regulations. Focus on the majority of your employees who are ready to get back to work and do a good job, and we'll deal with inevitable exceptions as they arise. Maintain open lines of communication and approach this with candor and good will. More information flowing two-ways leads to better ideas and better decisions. We're all in this together!

Amanda Farahany of Barrett & Farahany represents individuals in employment cases and other employment hardships. 

Todd Stanton of Stanton Law advises small and medium-sized employers on employment law issues.