Employers are beginning to open offices as coronavirus restrictions ease, yet medical experts still warn of flare-ups, and no vaccine or cure has been found. This sets the stage for potential conflicts between employers who want employees back to work, and employees who are tentative about returning. Remaining reasonable, assessing the rationale behind the employee's hesitancy, and finding creative solutions will help set the stage for successful reopening.

Can an employer insist an employee come back to work?

Well, it depends on the reason the employee doesn't want to (or can't) come in. If the employee's reason is protected by law, then no. If it's not protected, then perhaps. But does the employer want to pick this fight now?

Protected reasons include a disability as defined by the Americans with Disabilities Act or a serious health condition as defined by the Family & Medical Leave Act, each of which may entitle the employee to additional time away from work or other accommodation, such as the opportunity to continue to work from home. Employers also should be mindful of the employee's paid sick leave entitlement under the Families First Coronavirus Response Act and, if the employee has a minor child at home, whether FFCRA affords the employee paid time off for childcare purposes.

An employee's unspecified and generalized fear of the coronavirus is likely not a valid reason, standing alone, for the employee to stay home. Likewise, the mere fact that an employee simply cohabits with someone who may be more at-risk for infection may not be sufficient to justify a refusal to come in. An employee's advanced age, without more, is also not a protected reason and does not entitle the employee to refuse to return to work.

That said, a few additional facts can quickly change the legal landscape. If, for instance, an employee's apprehension is based on his history of asthma, the ADA may compel an accommodation. The ADA also may require an accommodation if the employee's anxiety about returning to work is rooted in a diagnosed condition or if an older worker also has a heart condition or compromised immune response. If an employee cohabits with someone who is not just at-risk but has been ordered to self-isolate and the employee is a caregiver, the FFCRA/EPSL may mandate relief. Likewise, FMLA may protect an employee cohabiting with and caring for someone who has tested positive for COVID-19 or is having symptoms that rise to the level of a serious health condition.

Because each situation is fact-dependent, we are encouraging employers and employees to communicate clearly about returning to the office. That includes the employee's articulating exactly why they would prefer or need not to come back at that time, as well as the employer's explanation of why the company may need them at their workstation. Employers should also be prepared to discuss and demonstrate the measures they have undertaken to make the workplace safe for everyone, not just for those who may need additional attention.

Here is a flow chart with a way to approach employee accommodations, followed by a second flow chart depending on what happens during the first one.

Be careful not to make decisions, even benevolent ones, that could be based on protected characteristics. As an example, keeping an older employee working from home while allowing younger workers to come back could be grounds for a discrimination suit, even if you are acting in what you believe is the employee's "best interest." Most employment laws confer the benefits on employees and don't offer employers much discretion.

What if your community is still under a government quarantine?

Employers cannot defy a governor's orders. In some areas, elderly and at-risk individuals are being asked to stay home until later in the summer. Don't pick this fight unless the person is absolutely critical to your operation! If the employee is critical and won't return to work, consider a solution like an agreed upon "administrative termination" allowing the employee to collect enhanced unemployment benefits. Better yet, consider whether there are any solutions that might allow you to retain a valuable employee and allow the employee to avoid sacrificing their job altogether.

External factors could impact your workforce.

Remember that the Families First Coronavirus Response Act allows for emergency paid sick and family leave. You may have an employee who returns to the workplace, and then decides to file for two weeks of Emergency Paid Sick Leave (at full pay) followed by another 10 weeks of leave (at up to 2/3 pay) under the Extended Family and Medical Leave Act. Summer camps have been canceled, day care facilities have not reopened, and school districts haven't made final fall decisions. This puts employees with families in a tough spot, and many simply don't have a choice.

Remain reasonable and understanding.

Even during this time of pandemic, interference and retaliation claims still apply. If an employee refuses to return to work for family reasons, such as taking care of children, and you terminate their employment, you could face a retaliation charge, even if the employee is not ultimately entitled to any benefits. Offering unpaid leave or administrative termination that allows the employee to collect unemployment benefits may be a viable compromise.

Employees should expect employers to follow Centers for Disease Control and Prevention guidelines, but they also need to understand that additional demands beyond those guidelines (like N95 masks) may not be met. Teleworking or other accommodations may only be granted in protected situations where the law requires it. Communicate with your employer and be honest. Understand that, if you opt for unemployment, these benefits are time-limited and will ultimately run out. If your request for unemployment is unfairly denied or you believe you were retaliated against, contact an employment attorney.

Employers should work individually with employees on return-to-work issues and keep an open mind about teleworking. If the employee is critical and has no protected reason for wanting to stay home, you may need to draw the line. Remain flexible, understanding and transparent as you work toward reasonable solutions–happy employees don't call attorneys. If you have an unreasonable employee or situation, call your employment attorney.

This pandemic will end, as will emergency relief funding options. You want to come through this situation as a surviving employer or employee, rather than an employee scrambling for work or an employer embroiled in litigation.

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.