ILMA Compoundings - March 2020 - 37

Continued from page 34
condition, remembering that the ADA
has an iterative process for determining
whether an accommodation needs to be
made for a physical or mental impairment that substantially limits a major
life activity. The Equal Employment
Opportunity Commission has guidance
on its website on pandemic preparedness
in the workplace and the ADA. Employers also should keep in mind that certain
state and local laws may have a broader
definition of "disability" than the ADA.
Because the number of coronavirus
cases in the U.S. is small at this time,
many employers, including ILMA
members, likely will continue to operate

as normal, perhaps restricting employee
travel and activities in Asia. If you
ignore some of the steps outlined above,
keep in mind that the coronavirus cuts
across all ethnicities, so do not single
out employees because of their ethnicity
for testing, leave or other virus-related
actions. Any and all responses to the
coronavirus should be applied in a
uniform and consistent manner.
That being said, given that it
remains flu season, employers can and
should reinforce sick-leave policies
and encourage employees, if feasible,
to stay home if they are feeling ill.
Lastly, employers should not offer
medical opinions and should provide

Continued from page 35
the explodee should have claimed both
reasons; otherwise, they are effectively
encouraged to serially sue until the
widget-maker pays them to go away.
While this characterization is probably objectionable to civil procedure
aficionados, it illustrates why no one
should want to apply the same principle
to defenses. Requiring every single
potential defense to be not only claimed
from the outset, but also maintained
through trial and possible appeals on the
off chance that you will be embroiled in

litigation on the same issue again would
seriously increase the cost of litigation.
Especially for cases that by their nature
can already take a long time, such as
Superfund sites that may go through
multiple rounds in court, the expense is
more than high enough.
A LUCKY OUTCOME?
The Supreme Court heard the case on
Jan. 13, with the notable achievement
of having no amicus briefs filed on
the side of either party. The purpose
of claim preclusion is to save time,
money and limited judicial resources.

information about the coronavirus
only from reliable government sources.
I hope that by the time this column
is published, the number of coronavirus cases worldwide will be on the
decline. However, as the situation
continues to evolve, employers are
well-served to keep perspective about
the situation, avoiding unnecessary
alarm or disruption where possible,
while monitoring developments.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

If Marcel has its way, I can't imagine
that it will achieve any of those goals.
Luckily, a number of precedential
decisions and other circuit courts provide a solid argument against defense
preclusion, so it seems probable that
Lucky Brands will win - but maybe
Marcel will get lucky.
Levetown serves as associate
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be reached
at 202-466-6502 or mlevetown@bmalaw.net.

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