It’s a mini COVID-19 Q and A! (Before I see y’all on Zoom today at Noon EDT.)

Before we see what’s in the mailbag, here’s your final reminder to register (here) for today’s free Zoom session at Noon EDT today with me and some of my friends from the EEOC. We’re going to be talking mediation, pro-tips, and the new pilot program.

Ok, mailbag time.

Q1. Do we have to accommodate someone with a disability who can’t wear a mask?

I got this question a few times this week, once in the Title I (employment) ADA context and another time for a reporter when dealing with Title III (public accommodations). For now, I’ll focus on the employment angle.

If an employee cannot wear a mask because of a disability (e.g., asthma), the employer should explore reasonable accommodations that enable the person to perform the essential functions of the job. What are some of those options?

  • Telework, or work in a location where no one else is present and a mask is unnecessary,
  • an unpaid leave of absence,
  • another face-covering like a face shield or a bandana, or
  • flexible breaks to receive fresh air.

Ultimately, however, the employer can insist on a face-covering to keep the workplace safe. If an employee not wearing a mask poses a direct threat to the others in the workplace, then there is no duty to accommodate under the ADA.

Q2. If a co-worker with access to your personal medical information decides to: (a) photo it, (b) share it with both parties’ supervisor, and (c) knowingly also shows it to 10M viewers around the world, would that compromise any HIPAA type of law?

Do you mean like this? I’m not a HIPAA expert. But, I’m guessing that’s a problem.

Q3. One of our employees moonlights as a bartender. The employee has now reported multiple exposures to the virus from someone who has tested positive.  The employee’s first two tests were negative, but she was off work for almost a week each time pending results.  When can an employer terminate an employee for off-duty conduct that places co-workers at risk?

That depends on the state, of course. Some like Colorado and California have off-duty-conduct laws that prohibit adverse action based on legal activities in which an employee engages on his or her own time. But, let’s assume that this is happening in another state. The optics of terminating someone for poor judgment right around the time that they take leave covered under the FFCRA could lead to a retaliation claim, even though technically the reason for the termination is the former (legal) and not the latter (illegal). The employer could also impose a no-moonlighting rule. Although, that might not go over so well with the workforce generally.

Q4. Eric, whatcha got cookin’ lately?

My wife bought me a dehydrator for Father’s Day, a very ‘quarantine’ gift. So, I’ve been going nuts making beef jerky and dried fruit (usually watermelon or pineapple).

My favorite recipe so far is for Smoky Honey Jerky:


1 lb of flank steak cut 1/4 inch thick

1/2 cup soy sauce

1/4 cup honey

1/8 cup Worcestershire Sauce

1 tablespoon liquid hickory smoke

1 teaspoon white vinegar

1 teaspoon onion powder

1/2 teaspoon garlic powder

1/2 teaspoon ground black pepper

1/8 teaspoon cayenne pepper


  1. Cut the meat and put into a gallon ziplock bag
  2. Mix the other ingredients together and dump them into the bag
  3. Refrigerate for 12-24 hours
  4. Remove the beef and dehydrate at 165 degrees for 4 1/2 hours

Note: If you are vegan, this is excellent with firm tofu instead of flank steak. Seriously. Just add an hour to the cooking time.

Q5. Yo, can you post a link to that article, “Already Out of the Office, Talent Flocks to Distributed Firms”?

(Ok, I may have emailed this question to myself.)

Seriously though, shout out to Dan Packel at American Lawyer for this fantastic write-up of distributed law firms like FisherBroyles, LLP, where I am a partner in the Employment Practice Group.

Among the highlights:

  • a partner-only law firm with zero debt,
  • no glass ceilings or billable-hour requirements,
  • freedom to set billing rates, and 100% objective compensation with full transparency, and, of course,
  • work from wherever you want!

As Mr. Packel notes in the article, we’ve added 35 attorneys since January 1, and have 30 more in the pipeline (which would bring us over 300 attorneys overall). If you are now questioning the value of paying for a traditional firm’s overhead during COVID-19, at FisherBroyles, partners retain 80% of the fees from work they originate and handle themselves. For work that’s shared, originators receive 32%, and the partners doing the work receive 48%.

So run the numbers for yourself. And, if you have AmLaw200 experience, solid portables, and FisherBroyles piques your interest, give me a holler.

For the rest of you, see you at Noon EDT on Zoom!

“Doing What’s Right – Not Just What’s Legal”
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