The NBA Coaches Association fears new league standards and guidelines that could bar team staffers in high-risk categories for the coronavirus from attending the season’s restart in Orlando could “severely jeopardize” their future employment opportunities.
NBCA executive director Dave Fogel and president Rick Carlisle have concerns that several assistants and three head coaches — Houston’s Mike D’Antoni (69 years old), New Orleans’ Alvin Gentry (65) and San Antonio’s Gregg Popovich (71) — could be restricted from leading their teams and some could face considerable challenges in resuming their careers.
“The health and safety of all NBA coaches is our main concern,” the NBCA told ESPN in a statement. “However, we are also concerned with a coach’s opportunity to work and to not have their ability to secure future jobs be severely jeopardized. The league assured us that a coach will not be excluded solely because of age.
“We feel the medical review process is designed to flag only those individuals who pose significant threats of substantial harm to themselves that cannot be reduced or eliminated by the NBA’s considerable steps to create a healthy and safe atmosphere in Orlando.
“Adam (Silver) and the NBA have created a situation in Orlando that is likely far safer than in our coaches’ home markets. Absent a significant threat, we believe a coach should be able to understand and assume their individual risks, waive liability, and coach in Orlando.”
Warren LeGarie, the agent for D’Antoni and Gentry, told ESPN on Wednesday: “I hope there is a basketball solution to this issue rather than a legal one.”
The 113-page health and safety protocols sent to teams late Tuesday outlined a multi-layered process for the identification and potential “protection” of team employees designated as higher-risk. All team staffers will fill out a questionnaire probing for individual risk factors, including: asthma; heart problems; ongoing cancer treatments; smoking habits; a body mass index above 40 as a measure of obesity; kidney or liver diseases; and other indications of a compromised immune system.
A doctor selected by the team must review each questionnaire. The staffer must then provide a letter from a doctor — which could be the team doctor, or the staffer’s personal doctor — clearing that person to attend in Orlando, the protocols state. If the team designates any staffer as “higher-risk,” that staffer must also obtain letters from relevant specialist physicians.
Even if a “higher-risk” staffer satisfies those requirements — and receives approval from his team to go to Orlando — the league, per the protocols, can flag that person and have him or her undergo a second review with “one or more physicians appointed by the NBA.” If that doctor or panel determines the staffer “would present a direct threat to his or her health” in Orlando, the league can prohibit that person from going, according to the protocols.
The doctor’s decision “will be final, binding, and unappealable,” the protocols state.
D’Antoni recently shared the same medical information that league doctors would evaluate with an independent doctor in Houston and was given clearance to coach the Rockets in the Orlando restart, sources said.
The “direct threat” language is at the heart of the league’s apparent belief that it can bar higher-risk individuals without running afoul of the law. In a memo released last month in conjunction with the coronavirus pandemic, the U.S. Equal Employment Opportunity Commission concluded employers may exclude employees if their attendance at work “poses a direct threat to [the employee’s] health that cannot be eliminated or reduced by reasonable accommodation.”
The EEOC and other legal experts consulted by ESPN have said “reasonable accommodations” related to the coronavirus could include several of the measures the NBA has taken to make Orlando safer: social distancing; mandatory wearing of masks in many circumstances; strict quarantine rules; frequent testing; and cleaning and disposal of items. Some legal experts cautioned that the presence of such safety measures could cloud the NBA’s ability to meet the “direct threat” standard — which is generally considered a high threshold. The coaches association cited those measures directly in its statement.
“Adam [Silver] and the NBA have created a situation in Orlando that is likely far safer than in our coaches’ home markets,” the coaches association told ESPN in its statement.
Employers must also consider the severity of the staffer’s health issues, and the level of the pandemic in the area in which the work will take place, per the EEOC. Coronavirus cases are rising in the Orlando area.
Legal experts said the NBA could enter another legal gray area by arguing any higher-risk staffer might post a “direct threat” to others in Orlando based on the possibility that anyone likely to get more sick is also more likely to become more contagious. The league does not appear to have mentioned any potential threat to others in its health protocols.