As employers adjust to operating within the limitations posed by the COVID-19 pandemic, the number of businesses that choose to conduct temperature checks of its visitors and employees, has increased significantly. Many overlook how technology has allowed a person’s body temperature to be taken in an instant. The now seemingly archaic thermometer inserted into a person’s mouth has been replaced with a contactless, digital body temperature reading by way of a forehead scan often conducted by a security guard. The temperature check has become a widespread practice and is no longer solely thought of as a precursor to seeing a doctor before a full medical examination.

However, according to the EEOC, taking an employee’s body temperature is a medical examination. Further, the EEOC has made clear that, as with all medical information, the fact an employee had a fever or other COVID-19 related symptoms can be subject to confidentiality requirements under the Americans With Disabilities Act (the “ADA”). This issue raises a number of important questions as it relates to ADA compliance in the workplace. Below are answers to five common questions employers subject to the ADA should be mindful of as employees return to work. Generally, any business that employs 15 or more persons for 20 or more weeks in the current or preceding calendar year is subject to federal employment laws, including the ADA.

1. During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

Yes, at this time. Generally, measuring an employee’s body temperature is a medical examination. However, because the Centers for Disease Control and Prevention (the “CDC”) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure an employee’s body temperature to determine whether they may pose a risk of having or speeding COVID-19. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Employers should be aware that some people who do not have a fever may still have COVID-19.

2. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes. Medical exams, including taking an employee’s temperature, are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

3. May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action during the COVID-19 pandemic. Additionally, the employee’s removal would be permitted under the ADA if the illness were serious enough to pose a direct threat. Applying this principle to current CDC guidance on COVID-19, this means an employer can require an employee with COVID-19 or symptoms associated with COVID-19 to leave the workplace.

4. During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing COVID-19 symptoms, such as fever. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Employers may ask employees questions about their symptoms to determine if they have or may have COVID-19 after they report feeling ill at work or call in sick. Currently, these symptoms include fever, chills, cough, shortness of breath, or sore throat. Moreover, an employer may require an employee test negative for COVID-19 prior to returning to work.

5. During a pandemic, may an employer require its employees to wear personal protective equipment (“PPE”) such as face masks, gloves, or gowns designed to reduce the transmission of COVID-19?

Yes. An employer may require employees to wear PPE during the pandemic. However, an employer should provide a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs) if an employee with a disability needs these, absent undue hardship.

Meet Eartha Kitt – Actress, Activist and Superstar

​In our continued celebration of Women’s History Month GaffneyLewis LLC is proud to shine the light on Eartha Kitt (born Eartha Mae Keith; January 17, 1927 – December 25, 2008). Kitt was an American singer, actress, dancer, voice actress, comedienne, activist, author, and songwriter.

Hailing from North, South Carolina, Kitt played Cat Woman on the final season of Batman; and her beautiful, growly voice is the one we hear on the original Christmas favorite, “Santa Baby.”

Kitt was an activist. She spoke publicly against the Vietnam War.  For many years, she fought for LGBTQ rights. She also started the Kittsville Youth Foundation and Rebels with a Cause, which were non-profit organizations focused on helping underprivileged youths who worked together to clean up depressed parts of Los Angeles (Watts) and Washington, D.C. (Anacostia) and establish recreation areas for the youth in these areas.

Said Kitt,

 “We’re all rejected people, we know what it is to be refused, we know what it is to be oppressed, depressed, and then, accused, and I am very much cognizant of that feeling.  Nothing in the world is more painful than rejection.  I am a rejected, oppressed person, and so I understand them, as best as I can, even though I am a heterosexual.”

She accomplished much in her life and was generous in her support of others, but it is Kitt’s sense of empathy and acceptance that makes her a superstar.

March is Women’s History Month commemorating and encouraging the study, observance and celebration of the vital role of women in American history. As a South Carolina women-owned, ethnically diverse law firm, GaffneyLewis, LLC is proud to shine the light on some of the women who blazed the trail before them.

Meet Augusta Baker

Augusta Braxton Baker was a pioneer for black librarianship.

She was the first black person to earn a B.S. in library and information studies from SUNY Albany. Baker spent most of her career working in the New York Public Library system (37 years) in many roles, including Children’s librarian, storytelling specialist, assistant coordinator of children’s services, and coordinator of children’s services. 

During her career she became the first African American Coordinator of Children’s Services for all 82 libraries within the New York Public Library system. In this role, and throughout her career, Baker worked to diversify the genre of children’s literature and to make books for young readers more reflective of the young people who read them. 

Baker’s love of books extended into writing. As an author, she wrote “Books about Negro Life for Children” (later renamed “The Black Experience in Children’s Books”), the first extensive bibliography of children’s books that featured positive black role models.

In 1980, after a remarkable career, Augusta Baker moved to Columbia, South Carolina. She became the University of South Carolina’s storyteller-in-residence. She served in this role for 14 years, continuing to influence the youth of South Carolina and beyond.

Augusta Baker died on February 23, 1998. Truly an innovator, her life’s work lives on through the Augusta Baker Collection of Children’s Literature and Folklore and the “Baker’s Dozen: A Celebration of Stories,” which is an annual storytelling festival sponsored by the School of Library and Information Science, College of Information and Communications, and the Richland Library. The University of South Carolina School of Information Science also established the Augusta Baker Endowed Chair in her honor.

Well done, Augusta Braxton Baker, well done.

The coronavirus pandemic has forced many industries to conduct much of their business remotely. The legal profession, and particularly mediation, is no exception. Nonetheless, some attorneys and their clients remain wary of remote mediation. Is the technology reliable? Is it secure? Will all parties be fully engaged in the mediation? Here we address some of these concerns and provide tips for making the process a success.

As mediators, we’ve seen a number of technology concerns with respect to remote mediations. Here are the most common ones, along with our recommendations:

• Do I (or my client) already have to be familiar with Zoom or other programs? Virtual programs like Zoom are not difficult to use, so you don’t need prior experience with them to mediate. But there are some tips to keep in mind to make the experience effective. For instance, with Zoom, only the person speaking will have the ability to use the microphone so others cannot interrupt. In our experience, once parties begin using virtual programs like Zoom, they almost forget they are mediating remotely.

• What happens if I don’t have a reliable internet connection? You will need access to secure encrypted WIFI, which excludes using the internet in a public place like a coffee shop. But attempting to mediate in a public place isn’t recommended anyway due to confidentiality concerns and distractions. Poor internet connection can affect the mediation, so check with your internet service provider before mediation to ensure there won’t be any scheduled outages, maintenance, or other issues. In the event of an outage, parties have been able to rejoin the conference with only a brief interruption in most cases.

• What sort of camera do I need, and is the one on my phone good enough? It’s recommended that mediation participants use a desktop or laptop computer with a working camera and microphone. An alternative is a tablet (e.g. iPad) or smartphone, which participants should have anyway as a backup. In case the internet or other technology becomes an issue, a smartphone will allow the mediation to continue.

• Are Zoom and other programs secure and confidential? Virtual programs like Zoom are safe when used with password protection and waiting rooms to monitor access. The more pressing security and confidentiality issues come from reliability of the internet connection more than the programs themselves. Remember, however, that mediation is highly confidential and recording it is strictly prohibited. Rules like these are more of a firewall to protect the security and confidentiality of all participants.

In our experience conducting remote mediations, we’ve observed that attorneys and clients become more comfortable once they begin the process and realize it’s not as daunting as it may seem. But still the question remains: is remote mediation truly effective? Can the parties really be engaged when they’re not all in the same place?

The answer is yes, provided that all participants observe some basic ground rules:

• Everyone should take reasonable steps to minimize distractions. Find a quiet room in your home or business that will serve as a distraction-free zone. It needs to be a place where you can close the door to ensure privacy. Don’t attempt to do other work, use social media or other technology, or allow interruptions during the mediation.

• Body language is a key variable in mediation. Other participants need to see you so they can trust the process. In real life this is a given, but it shouldn’t be sacrificed in the remote setting. Thus, all participants should join by video and not rely on audio only and while actively participating, should remain seated in front of the camera, not standing, walking around the room, or off camera. Of course, there are many breaks during the mediation process that will allow for movement away from the camera as long as the volume is on so that the parties can hear when they are needed.

• Pick a room with a wall behind you, not a window. A window can create distracting backlight and make it difficult for other participants to see you. Everyone must be able to see everyone else for remote mediation to succeed.

• All mediation participants must be disclosed ahead of time, which means having any unauthorized third parties in the room is strictly prohibited. The parties will have agreed to this basic rule in advance, and it will be rigorously enforced.

• All participants must be available at all times throughout the mediation. In other words, the experience needs to be as close to real life as possible. Participants should not be taking phone calls, stepping out of the room, or otherwise unavailable. Even though you are in a private room, behave as if your boss could walk in unannounced at any moment.

Here at GaffneyLewis, LLC, our approach to mediation has adapted to meet the needs of the attorney and parties we serve as we continue to navigate the coronavirus pandemic. We are proud members of the National Academy of Distinguished Neutrals and our objective is to ensure that the attorneys and their clients get the most possible out of remote mediation. But we recognize that not everyone is familiar with the process and may still have questions about it. We encourage you, if mediation is in your near future, to give us a call to learn more or schedule with our certified mediators online at https://nadn.org/regina-lewis and https://www.scmediators.org/amy-gaffney.

Ten months ago, no one thought we would still be in the midst of a pandemic and trying to persuade our employees to wear masks and wash their hands until they resemble crocodile skin. Yet, here we are, and we must lead our employees out of the COVID funk that has settled on the world. “How,” you ask?

Connect with them. Start with empathy instead of impatience. Let them hear from you – that you are also weary of everything that comes along with COVID, you are also frustrated, you also want life to go back to “normal,” you would also like to have skin on your hands, you also want to see their entire faces and warm smiles. Then explain why you are committed to wearing a mask, to appropriately physically distancing from others, to cleaning the workspace, to washing your hands. You are committed because it protects them and their families. You know that they also want to protect their co-workers and their families.

Speaking of connection, if your employees are working remotely and feel disconnected, brainstorm fun ways to connect. Bonus points if the fun helps you get to know more about each other. Keep it work appropriate though. For example, I do not recommend “Pajama Mondays.” To the contrary, this is an opportunity for people to put on their outside clothes for once. You can also let employees know when you are hosting a Zoom meeting where it is okay for kids and pets to pop up. You could challenge employees to come up with their own connection ideas and choose a winning idea monthly. Here are some fun connection ideas our creative Firm Administrator, Michelle Holmes, implemented:

🤡 Each employee submitted a photograph of their pet, Michelle created and distributed a pdf of the pets, and each employee had to match the pet with the appropriate owner/servant of that pet. The winner won a gift card to a pet store.

🤡 Before a scheduled firm Zoom meeting, Michelle mailed out colored glasses. The reason for the glasses was a mystery to us, but we were instructed to wear them for the meeting. At the meeting we learned we were wearing them in support of a client’s charitable cause. After learning about that cause, we took a screenshot of the Zoom video and forwarded it to our client to show our support.

Next, highlight any positive changes you have made because of COVID. The most obvious example is if you realized employees could work remotely and still effectively perform their jobs. If you plan to continue allowing some level of remote work post-COVID, you might let your employees know of that decision. If you are one of the businesses though that needs your employees at the physical work site, finding positives might be more difficult. Maybe you improved your technology this year, which makes employees’ work easier, or you might have improved the office ventilation. Everyone loves breathing cleaner air. Perhaps your employees were pushed into being more patient or thoughtful, and now have a stronger team. Perhaps you have more flexible work hours that employees enjoy and can become a permanent option. Whatever are the successes, celebrate them.

What if your employees argue their freedom comes first and, anyway, COVID is not real, or at least not serious? First, do not argue with them. In fact, maybe you personally agree with them, but you have regulations and protocols to enforce. It is best to refrain from engaging in conversation about these beliefs at work. Whether the opinions are born from political or religious beliefs, you are about to get into a conversation that makes lawyers squirm. If you want to save your money, do not have these conversations. Just acknowledge that your employee has the freedom to his own opinions about COVID (mind your tone here if you do not agree with him) and ask him if he is willing to put those aside to help you create a harmonious workplace. Do not use the word safe because he thinks it is already safe. If you have a good working relationship, he will want to help you. If he refuses to comply with the protocols, then you need to call the GaffneyLewis employment law team to assist you.

Be on the lookout for our next blog post on COVID vaccinations coming out soon.

GaffneyLewis is proud to be the Production Sponsor of PURE Theatre’s virtual production of, “Satchmo at the Waldorf,” streaming on demand from December 17 through January 2.

It’s 1971, and the greatest trumpet player in the world has just finished a set at the Waldorf Astoria in New York. Now at the end of his career, Louis Armstrong reflects back on his life and the ever-evolving struggle to live with dignity as a Black musician in a White world. Based on the 2009 biography written by playwright Terry Teachout, Satchmo at the Waldorf is an intimate exploration of Armstrong’s life, legacy, and—above all—jazz.

Since 2003, the ensemble actors of Charleston’s acclaimed PURE Theatre have built a solid reputation for artistic excellence in provocative contemporary theatre. The 20 professional actors comprising the Core Ensemble are the soul of PURE’s work. Serving a sophisticated and diverse audience with a taste for new work, PURE presents a compelling six-play season between August and June. Endeavoring annually to outdo what was accomplished in years past, PURE continually makes three promises to its audience:

• To always tell a story worth listening to
• To only pursue excellence
• To always gift the audience something to talk about

The company has been lauded for coupling artistic risk-taking with a passionate commitment to addressing the important and often hilarious challenges of being human in the world today, yesterday, and tomorrow.

See the PURE website: www.puretheatre.org for details about the production and tickets.