Settlement for HIV status, guidance on COVID19 / ADA interplay, community association contracts in the era of COVID19, coronavirus testing by employers, and more in Our Social Media Posts This Week – May 3-9, 2020.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 5/3/20, we learned that a sheriff’s office agreed to pay $90,000 to a deputy denied a job due to his HIV status. Here, William applied for a job as a deputy sheriff. He had experience as a police officer, paramedic and volunteer firefighter and has a first responder after Hurricane Katrina. Someone anyone would want, right? Well … The normal process (as noted in the post) was followed, and he was offered the job. He then had a post-offer medical exam. That’s where the problem started. See the post for what happened before the offer was rescinded. What the department claimed was the reason for withdrawing the offer is in the post. Needless to say, William filed a charge with the EEOC for violation of the ADA. What the EEOC did is in the post. After winding its way through the judicial system, it finally settled – the nudge is also noted in the post. The department is paying $90,000 to William and also agreed to other non-monetary relief listed in the post.  

TAKEAWAY: Here, HIV status had no effect on the job. However, it may be relevant if a doctor says the applicant/employee cannot perform the job safely for him/herself or others. Consult an employment lawyer.

The post on Monday 5/4/20 notified us that the EEOC issued updated COVID-19 / ADA guidance as we move toward reopening the economy. Yes, guidance seems to change daily … But what does not change is that the existing laws are still there and still must be considered in the employment arena now and once things start to reopen. The interaction of the provisions of the ADA with reopening during COVID-19 looms large. This guidance deals with disability-related inquiries and medical exams, including expanding the list of symptoms (with the new ones listed in the post). The latest guidance also deals with confidentiality of medical information (and to whom it may be disclosed as noted in the post), reasonable accommodation (how COVID-19 might affect those already vulnerable and what the employer can request as noted in the post), pandemic-related harassment (don’t treat people differently based on race, national origin or other legally-protected characteristic), furloughs and layoffs (the post notes what should be included in any severance or other agreement), and return to work (when medical-related inquiries are appropriate, when employees can be excluded, the accommodation process regarding PPE and exemptions, and ore as noted in the post).

TAKEAWAY: Know what’s required of employers – before you step into the deep end – consult an employment lawyer.

The post on Tuesday 5/5/20 kept with the theme and talked about pending contracts of condo and homeowner associations and COVID-19 and asked: What can be done? This is a big issue at this time of year as pools and other common amenities would normally be opening up but now cannot due to various governmental restrictions. So, what can the association do? First, have a community association lawyer review the contract. There might be language to help the association. There might also be other legal ways, including those noted in the post.

TAKEAWAY: Whether or not certain contracts can be postponed or cancelled is a legal question and one that hopefully will not require judicial intervention. Talk to your community association lawyer sooner rather than later to plan for this event.  

The post on Wednesday 5/6/20 told us that an after-the-fact find of lack of job qualification sinks an ADA discrimination claim. You may be shaking your head, so let’s look at the background here. (NOTE that this is a pre-COVID case.) Sunny was a technical writer. She had requested an accommodation to work from home which the employer denied. Sunny sued for failure to provide a reasonable accommodation under the ADA and terminating her employment due to disability. Various information changed hands as part of the suit. The employer found out something it had not known until discovery during the suit. What it was, and how it affected her job, is in the post. The employer then parlayed that into an argument that she was not qualified for the job and thus had no ADA protection. The trial court agreed. Sunny appealed. The appellate court affirmed, but its reasoning (in the post) is educational for employers and employees alike. The court used a 2-step test promulgated by the EEOC and sided with prior decisions of other federal appellate courts (including the one governing PA). All of that is in the post.

TAKEAWAY: Don’t jump the gun – make sure the employee asserting protection under the ADA is qualified for the job, and then move ahead. Get legal assistance.

In the post on Thursday 5/7/20  we saw that the EEOC says coronavirus testing does not violate the ADA. This is not surprising as COVID literally touches or impacts everything. The EEOC did this as part of its guidance (which is also discussed in our post on Monday 5/4/2020). In this time, employers need to know if they can test employees before they enter the workplace without violating the ADA. How the ADA plays in is noted in the post. So yes, an employer can test for COVID-19 – but what it then must do with test results is noted in the post and must be followed. Other advice for employers, protocols, and test limitations are also in the guidance and noted in the post.

TAKEAWAY: Employers must always know applicable law – it is getting more complicated on a daily basis in this era of COVID-19, so consultation with an employment lawyer is advisable.

The post on Friday 5/8/20 contained 5 tips for employers to safeguard against employment claims due to COVID-19. Oh, don’t act surprised; claims and suits will be filed about anything, be it layoffs and furloughs due to COVID or reopening during COVID. And many of the issues surround the safety of employees. So, what things should employers keep in mind relative to their workforce and COVID-19? First (and as noted in our post of Monday 5/4/2020), don’t take adverse action against anyone based on a legally protected characteristic include race and national origin. This is discussed in more detail in the post. Next, do not permit discrimination against an employee who tested positive or were designated presumptively positive for COVID-19. Some ways an employer can do that are detailed in the post, including having a policy to deal with all of this. Other tips, including whistleblower ad retaliation claims  and more are in the post and should be read and followed.

TAKEAWAY: COVID-19 is making a minefield of every work environment, even if the business is operating from remote locations (employee’s kitchens, dining rooms, and more) – know what mines are out there and how to avoid stepping on them. Get help from an employment lawyer.

Finally, in the post yesterday 5/9/20, we noted that Now is the Time: Last Will And Testament, Power of Attorney, and Healthcare Directive (or proxy). None of us likes to think about the what-if, but COVID-19 puts that thought into many minds. So, get some relief and get your affairs in order. If you already have these documents, review them to make sure they are up to date given any changes in the law or your life. First, you want a Will. It provides for distribution of your assets after your death, including any trusts to be established, along with guardians for minor children and the person who will carry out your last wishes (all as noted in the post). Your Will must be tailored to your specific circumstances, so you really need an attorney to prepare it. Likewise, a Power of Attorney is good to have, It is effective while you are alive. It allows someone else to act for you in every or limited circumstances, some of which are noted I the post. Again, it is tailored to your circumstances and so should be prepared by an attorney. The final document in the “triumvirate” is a Health Care Directive, or Proxy (also referred to as a Living Will). It works in tandem with the Power of Attorney and provisions in one may or may not need to be in the other. This too is effective while you are alive. Some of the provisions it may include are noted in the post. As with the others, and because of its interplay with the Power of attorney, it too should be prepared by an attorney.

TAKEAWAY: There are on-line sources for people to prepare their own Wills, Powers of Attorney and Living Wills/Healthcare Directives, but that doesn’t’ mean they will be prepared properly or be effective to carry out your wishes. Let me help you get yours in place (or review your existing documents).

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