It’s time for businesses to begin to get back to some normalcy, relying upon the abundance of published guidance and recommendations for creating a safe workplace following the start of the COVID-19 pandemic earlier this year.

During the early days of the pandemic, employers scrambled to find any workable solution, including offering employees remote working. This temporary solution worked exceptionally well for some employers, but after five months of a remote workplace, many employers are finding they are simply treading water, and not fully functioning as an employer.

As a result, employers have spent thousands of dollars and countless hours preparing to reopen, and return employees back to the workplace.

Some employers seeking to return employees to the workplace are getting resistance from returning employees and are looking for ways to reassure employees that it is safe to return to the workplace.

The first and most important way to demonstrate that employees can return to a safe workplace is to communicate with employees that your organization (if located in Virginia) is in strict and total compliance with the regulations provided by the Virginia Department of Labor and Industry (VA DOLI) issued July 15, 2020, titled “Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19.”

These regulations provide a roadmap for ensuring a safe and healthy workplace, including guidance on mask wearing, distancing, engineering controls, training and other important protocols depending on the employer’s industry.

In communicating the return-to-work plan, and promising full compliance with the Virginia regulations, employers should also universally ask employees if they have any concerns about returning to the workplace and, if so, communicate those concerns with human resources or the organization’s designated person to respond.

If an employee responds with an objection to returning to work, employers should carefully consider each request.

Of course, anyone who has symptoms of COVID-19 and who has been ordered by a doctor to quarantine should not return to work, but employers are entitled to medical documentation regarding the quarantine order.

Below are some suggested solutions to the concerns employers have heard from returning employees:

• “I have co-morbidities making me more susceptible to complications from COVID-19.”

For any employee who has a co-morbidity and feels unsafe returning to work, that employee may be entitled to reasonable accommodations under the Americans with Disabilities Act. This is where employers will need to demonstrate that the job requires on-site performance as an essential function. The ADA is a complicated law that requires an interactive discussion. Employers with questions about potential accommodations can contact the free resource, Job Accommodation Network, at JAN.org.

• “I live with, or care for, someone who is elderly or has similar co-morbidities so I cannot contract the illness for fear of spreading it in the household.”

Employees who cannot return to work due to a family member with co-morbidity is a more difficult situation because those employees are technically not legally entitled to any rights unless they fall under the temporary absence for the new paid family leave. Employers should be sensitive to the fears of these employees and find ways to take extra precautions for them so that they feel comfortable coming to work. This might include more robust masks, removing them from customer interaction or setting up special barriers in their work area.

• “I cannot return because my child’s school is closed due to COVID-19.”

Employees who cannot return to work due to the need for child care because the child’s school or child care center is closed due to COVID-19 may be entitled to up to 12 workweeks of leave under the federal FMLA expansion, which has been discussed in earlier articles. Some employees may have already used some or all of that available leave earlier in the year.

• “I adopted a pet and need to stay home” or “My house is under construction and I need to stay home.”

If an employee has adopted a pet or taken other steps during the pandemic that makes leaving the home for extended periods difficult (i.e.: under construction), employers should be creative in helping employees, including extending the workday (i.e.: allow employees to start earlier and end later giving a larger time period during the day for the employee to return home and tend to the animal or construction, for example). Avoid flat out refusing to assist an employee simply because the employee doesn’t have legal rights.

• “I’ve been doing this job from home successfully for five months so why do I have to come back to the office?”

Many people have now gotten a taste for the good things that come from working from home, including in some cases higher productivity, no commute, spending time with kids and pets, cost savings due to lunch and gas savings, and spending the day in yoga pants. In addition, some enjoy being away from the oversight of management.

Employers may need to demonstrate why the job needs to be performed onsite, and ideally the job description states that regular, predictable and reliable onsite attendance is an essential function of the job.

If it is true that the job can largely be performed remotely, employers should consider providing a couple of telework days per week to compromise with employees and determine if that is a workable solution.

While employers are also struggling to make sense of all this, they should try to get to a workable solution with employees regardless of the expressed reason, but certainly make sure to comply with the legal rights of employees under the expanded FMLA and the ADA.