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Brian P. Downey Quoted in Legal Newsline Article, 'Should Businesses Reopen? Stay Closed? Either Way, 'Someone Will Sue''

4/27/2020
Brian P. Downey Quoted in Legal Newsline Article, 'Should Businesses Reopen? Stay Closed? Either Way, 'Someone Will Sue''

Brian P. Downey, a partner in and chair of the Trial and Dispute Resolution Practice Group with Pepper Hamilton, was quoted in the April 27, 2020 Legal Newsline article, "Should Businesses Reopen? Stay Closed? Either Way, 'Someone Will Sue'."

"In many ways, no matter what decision a business makes there's litigation risk attached to it," said Brian P. Downey, a partner with Pepper Hamilton who represents companies embroiled in employee and business disputes. "Someone will be unhappy, someone will be aggrieved and someone will sue."

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Even if causation provides a solid defense, restaurants and other businesses open to the public still face difficult decisions, Downey said. How much do they restructure the physical operations to minimize the risk of spreading disease? How much PPE should employees wear? Should they test customers coming in the door? With what? Infrared thermometers? Operated by who, and with what training? Hello, privacy lawsuits without a plan to deal with the digital information being stored. In Illinois, with its strict biometric privacy law, the whole idea of testing anybody might be a non-starter.

The novel coronavirus raises novel questions under the Americans with Disabilities Act, which requires employers to make reasonable accommodations for employees who suffer a disability. Will COVID-19 apply, and if so, how much of an accommodation must an employer make for an employee whose mere presence could kill another worker? The most Downey will say is companies should follow CDC and OSHA guidelines, be transparent about the presence of the coronavirus in the workplace without sharing names, and make reasonable accommodations for infected workers but discipline others if they refuse to show up out of fear of the disease.

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"There's an argument that if we're shut down by government order, we can't perform" under the contract terms, Downey said. "Once that's gone, is the continued existence of the virus sufficient?"

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