Today’s blog entry is a bit something different. What I thought I would do is discuss several Covid-19 scenarios happening in the real world and see how they apply to the ADA.

 

I

State of Connecticut’s Crackdown on Mask Exemptions

 

On August 12, 2020, the Hartford Courant reported that the governor of Connecticut would soon require non-mask wearers to present a Doctor’s note showing that they have a legitimate exemption from the state’s mask mandate. On August 14, the governor of Connecticut issued that order. That order, which can be found here, requires a person claiming they cannot wear a mask to have medical documentation on them proving that they cannot wear masks. The governor issued the order because he felt the requirement was necessary to crackdown on people using the medical exemption as an excuse not to wear masks and that people were beginning to abuse the privilege. The interim Executive Director of Disability Rights Connecticut, the Connecticut Protection and Advocacy organization, said that requiring people to carry physician approved evidence of their disabilities is an unequal burden not imposed on people without disabilities. He also said that a person with a disability should not have additional expense or demands on their time just to be able to use the same store as everybody else.  Melissa Marshall, coordinator of the Connecticut Cross Disability Lifespan Alliance, had a different view. She said that the ADA allows businesses in public places to refuse entrance to anyone posing a public health threat. That includes people not wearing mask even if they have a disability preventing them from wearing a mask. She said that businesses can prohibit someone from coming in if they are not wearing a mask and that even requiring a Doctor’s note does not require someone to be let in.

 

Answer: I agree with Melissa though I would use the term “direct threat,” rather than the term, “public health threat.” Regardless of the title of the ADA, the ADA does not protect those who are a direct threat to others. Here, the medical science is quite clear that a person not wearing a mask where social distancing is not possible is a direct threat to others. Accordingly, regardless of whether that person has a Doctor’s note attesting as to why they could not wear a mask, a business would be perfectly justified in not allowing such an individual into a place where social distancing is not possible unless they are wearing a mask. As others noted in the article, the business would have to figure out a way to accommodate that customer short of letting them into the store. So if a restaurant was involved, the restaurant could bring the food out to the person’s car. If it is a matter of shopping in the store, the store could ask for a list from the customer and then shop it for them, not much different than Instacart.

 

II

 

The Sheriff Who Demands Everybody Show up to Work without a Mask

 

Jon Hyman of the Ohio Employer’s Law blog has been running a contest for at least the last couple of years where he nominates an employer for the worse employer of the year. At the end of the year, his readers vote on who they think is the worse employer of the year. He picks out the absolute craziest things that are happening. In Jon’s August 13, 2020, blog entry, here, Jon picked out as a nominee for the worse employer of the year Sheriff Billy Woods of Marion County, Florida. He prohibited his approximately 900 employees from wearing masks or facial coverings while on duty. His directive included anyone entering any of his buildings as well. On the same day his email was sent, Marion County hit the highest number of Covid-19 in a single day. His response was to say that he could find an equal amount of professional saying masks should not be worn v. those who say that masks should be worn.

 

Answer: First, the medical science is overwhelming that masks need to be worn in areas where social distancing is not possible. Second, OSHA requires a safe workplace even though it has not issued specific masks guidances. OSHA doesn’t have anything specifically on point, but they do refer to the general duty clause and to CDC. So, the sheriff’s actions run a real risk of OSHA violations. For those employees of his with underlying conditions and arguably for those employees of his associating with persons with underlying conditions, OSHA would seem to be in play. Second, the directive arguably violates the ADA in two respects. First, it creates a situation where people are forced to be a direct threat to others if not to themselves. Second, it also discriminates against those who associate with people with disabilities by preventing them from taking action to minimize the risk to those they associate with. So, possible ADA violations as well as OSHA violations here.

 

III

Attorney Associated with the Person with Covid-19

 

Eric Meyer of the employer handbook blog, has a blog entry from August 12, 2020, discussing the situation of an attorney who appeared in court in person even though she knew that her young son was at home with Covid-19. The judge got so angry that he immediately closed the courtroom and had the sheriff’s deputy removed the lawyer from the courthouse. He then banned the lawyer from the courthouse until she could produce negative Covid-19 tests result for herself, her child, and anyone else with whom she lives. Eric noted that the CDC no longer recommends a test-based strategy to determine when to discontinue home isolation except in very limited circumstances. He also notes that a test-based strategy might make sense for the anyone severely immunocompromised.

 

Answer: Several things to consider. First, was the attorney wearing a mask when she went to court. Second, did the attorney ask for a reasonable modification of a remote hearing in advance and was it refused? Third, a negative test is only a snapshot in time. So, for a different moment in time, you could have a different result. Fourth, regarded as applies across all of the titles of the ADA. Finally, if the child has Covid-19, I am not sure I understand why the attorney was not quarantining herself.

 

IV

 

Cleveland Indians

 

Jon Hyman, the author of the Ohio Employer’s Law blog, is  a huge sports fan. Originally from Philadelphia, he now lives and works in the Cleveland area. On August 10, 2020 his blog entry talks about how a pitcher of the Cleveland Indians, Zach Plesac, was irresponsible in his off field behavior and the action that the Indians took in response. It turns out that MLB security personnel caught Plesac returning to the team’s hotel after he had gone out with friends. The Indians have their own Covid-19 code of conduct that required him to obtain permission before leaving the hotel. The Indians hired a car service to return him to Cleveland so that he would not share an airplane with his teammates and potentially place them at risk. The team said that he would remain quarantined until he received two negative tests. Jon goes on to say that while a business may not be able to dictate how employees spend their free time, a business can hold them to the consequences if they act irresponsibly when off the clock. Every employee has a responsibility to their employer, coworkers, and the business to make sure to do what they can to avoid bringing Covid-19 into the workplace. Also, every employer has the same responsibility to take reasonable steps to prevent an at risk employee from entering the workplace when it is discovered. Postscript: it wasn’t just Zach Plesac involved, also involved was Mike Clevinger. The actions of the two caused quite a rift. Last Friday, Cleveland Indian players scolded both of them for breaking protocol and at least one player said he would opt out of the season if the two remained on the active roster. Cleveland optioned both of the players to Cleveland’s alternate site to spend at least 10 days away from the major-league team. In fact, Cleveland went even further than that. They optioned both to the minors where they have to stay for at least 10 days beginning last Friday. It’s a significant decision by Cleveland because the players represented 2/5 of the Cleveland Indians starting rotation that currently has a major-league best 2.43 ERA. Due to the collective bargaining agreement, being sent down to the minors could have sizable repercussions on the two pitchers as well. Not helping matters at all, was a video Plesac released blaming the media for all the problems. He took down the video, but it can still be found on YouTube and other places.

 

Answer: For baseball to be played at all, it depends on the players doing the right thing. Also, very importantly, Cleveland has a code of conduct and enforced it. To my mind, this really isn’t anything different than when employers go after an employee for making derogatory comments about ethnic or religious groups while off-site and face termination as a result.

 

V

Detroit Lions Quarterback Family and the False Positive.

 

Within the last week, I read an article in the Atlanta Journal-Constitution in their today’s talker column, which we ran a piece from the Detroit Free Press, about what happened to Matthew Stafford’s family when the Detroit Lions announced that he has Covid-19 but the test was a false positive. Matthew Stafford is a former University of Georgia quarterback and so what happened to him is a matter of interest down here in Atlanta. The article talks about how Kelly Stafford, Matthew Stafford’s wife, who gave birth to the couple’s fourth child last month, described the week as somewhat of a nightmare. Even after they knew it was a false positive: their kids school told them they were not allowed back; she was approached in a grocery store and told that she was endangering others; her kids were harassed and kicked off the playground; she was told she needed to wait in her car when trying to pick up food; and people closest to them had to get tested just so they could go back to work. She blamed the NFL for not holding themselves accountable because people’s lives and livelihoods are at stake in those results. She said that, “maybe we should be absolutely positive a person has Covid-19 before releasing that information to the world.” They have four girls under the age of four and she has had her own major health battle after having brain surgery last year to have a tumor removed. She wrote that she shared her family’s experiences with the hope that it doesn’t happen the other families.

 

Answer: First, antigen testing is very unreliable and the EEOC does not recommend it as a means of taking action against an employee. The better testing is the laboratory testing but getting that turned around takes more time. Second, there are all kinds of ADA actions here for the taking against those taking action against the family and their friends based upon the false positive test. The ADA protects against those who are regarded as having a disability. For a person to be regarded as having a disability, all you have to show is that the person was regarded as having a physical or mental impairment. You do not have to show that a major life activity was substantially limited. That said if a condition is both transitory AND minor and lasting less than six months, then the regarded as prong of the definition of a disability does not apply. With respect to Covid-19, the condition may or may not be transitory and it may or may not be minor. So it is entirely possible that with respect to Covid-19, Covid-19 would land outside the exception existing under the regarded as prong. Given all that, the harassment that Kelly Stafford suffered in the grocery store may be grounds for a regarded as claim against the grocery store. Their child being kicked off the playground would also be grounds for a regarded as claim. However, question there would be who kicked the kids off the playground. Other parents? A school? Was the playground a place of public accommodation per 42 U.S.C. §12181(7)? So, the question here is over who to sue and not whether a cause of action exists. With respect to the restaurant that told her she had to wait in her car to pick up her food, I can see a regarded as claim there. While the car pickup approach may actually be a better way to do it, the person with a disability, which includes regarded as, should have the right to decide how they want to pick up their food (remember under titles II and III final regulations, direct threat only applies to direct threat to others). With respect to the friends of the family that had to get tested just so they could return to work, potential regarded as claims exist there as well, though an employer does have a right to ensure a safe working environment for its personnel. Finally, I am not sure why their child’s school is not virtual, preventing them from returning to school also creates possible ADA regarded as claims.

 

VI

Assumption of the Risk Forms

 

The August 15, 2020, Chicago Tribune, here, has an article on how many colleges are having their employees and students sign assumption of the risk forms. Colleges and universities that are doing so include: Illinois Institute of technology; Northwestern University; St. Xavier University; Illinois State University; University of Alabama; University New Hampshire; Penn State University and assuredly others. Language that is seen in such forms include: 1) “this notice is not a waiver and release by which you are agreeing not to sue the University; the notice is simply asking you to acknowledge that you received and understood the information contained in it.” “Acknowledgment of the notice allows one to access our network;” 2) “anyone returning to XYZ campus makes the decision voluntarily to assume the risk related to exposure to Covid-19 and to assume responsibility for following the rules;” and 3) language like, “the University cannot guarantee a risk-free environment and those returning the campus are doing so voluntarily.”

 

Answer: 1) While the language might encourage good public health behavior, the assumption of the risk language is certainly bad for morale and certainly does not promote camaraderie among students or among employees; 2) is there really that much of a difference between an assumption of the risk form and a waiver of liability form?; 3) depending upon your state, the assumption of the risk form even assuming it is not a waiver of liability form, may not fly. For example, in Illinois, an Illinois Supreme Court decision strongly suggests that universities insisting on the assumption of the risk form for its employees and students would not be valid. See Varilek v. Mitchell Engineering Company, 200 Ill. App. 3d 649, 558 N.E.2d 365 (Ill. App. Ct. 1990); 4) one wonders if the language would not interfere with a person with a disability rights under the ADA per 42 U.S.C. §12203(b). See also this blog entry; 5) one also wonders whether such a document would mandate a discussion of remote learning or remote working for faculty and students that are at risk or those who associate with someone at risk. If the school refused to negotiate with such an individual, that would be a strong indicator that the assumption of the risk is not voluntary; and 6) check whether your state has a Covid-19 business protection legislation. For example, Georgia does.

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