Sher Garner COVID Legal Resource Group Alert

Sher Garner Cahill Richter Klein & Hilbert, L.L.C., COVID-19 Legal Resource Group – Alert 2

Our thoughts are with those impacted by the Coronavirus (COVID-19) pandemic. The health and protection of our clients, their interests, our own Sher Garner Cahill Richter Klein & Hilbert, L.L.C., family and the community we serve remain our priority as we navigate this difficult time together.

We want you to know that Sher Garner Cahill Richter Klein & Hilbert, L.L.C., has formed and mobilized a Legal Resource Group to assist clients with challenges and legal issues associated with the COVID-19 outbreak. Each of the lawyers on our COVID-19 Legal Resource Group has experience in specific areas of law affected by those issues, combining that experience to create a multidisciplinary and effective mechanism to assist you in navigating this rapidly evolving crisis.

The Legal Resource Group anticipates that COVID-19 will present clients with the following issues:

• Labor and Employment/Human Resources – sick leave, family medical leave, loss of employment, workplace safety, restricting access, remote operation, testing, quarantine, daycare;
• Contracts – cancellations, performance, delivery, termination clauses, force majeure clauses;
• Insurance – policy reviews for coverages, exclusions, limitations, business interruption;
• Tax – employment benefits, deductibility of losses, employment tax credits;
• Leases – commercial and residential leases, force majeure clauses, continuous operation clauses, rental payments;
• Families First Coronavirus Response Act and other new laws – effect of new laws and regulations adopted in response to COVID-19 on you or your business, including those likely to pass soon as part of the Families First Coronavirus Response Act.

To address anticipated COVID-19 legal challenges, our Legal Resource Group offers the following guidance concerning the intersection of workplace testing, privacy, and regulations governing “medical examinations” under the Americans with Disabilities Act (“ADA”):

Considering the recent declaration of a national emergency by the federal government, as well as widespread declarations of emergency by state and local governments, employers may request their employees to submit to having their temperatures taken before being allowed to work at an employer facility.

As a general matter, the act of taking an individual’s temperature is considered a “medical examination” under applicable regulations and guidelines by the Equal Employment Opportunity Commission (“EEOC”). Notably, the ADA prohibits employers from requiring “medical examinations” or making disability-related inquiries unless it is (1) job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the individual’s health or safety or of other people that cannot otherwise be eliminated or reduced by reasonable accommodations.

The EEOC has not, to date, definitively addressed the issue of whether employers can require their employees to allow the taking of their temperatures in the context of COVID-19. But guidelines previously issued by the EEOC suggest that such actions would more likely than not be deemed permissible in light of recent events, and in particular, based on the “direct threat” analysis. The EEOC declared in guidelines issued prior to the COVID-19 pandemic that “if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe [than seasonal influenza or the 2009 H1N1 influenza], it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.”

The recent presidential declaration of a national emergency, coupled with the declarations of emergency by the governors of nearly 40 states (including Louisiana) as of March 15th suggest that the “direct threat” rationale would be satisfied to allow for a “medical examination” of employees, such as requiring the taking of temperatures of employees. By extension, this rationale should also extend to nonemployee visitors to a company’s office or facilities.

Please contact us with your questions or concerns. Our Legal Resource Group is available to address your needs.