COVID-19 FAQs for Healthcare Employers from Breakthrough Coaching

Thank you to the experienced attorneys of Jackson LLP serving independent practices of all types in Illinois, Wisconsin, Michigan, New York, Connecticut, Florida, and California for this update.

We address common questions about how to handle the crisis in your independent practice without creating new legal headaches that will haunt you later.

For independent healthcare practice owners, the COVID-19 outbreak brings challenges on multiple fronts. As you take steps to manage your caseload and protect the health of patients and staff, you’ll need to be mindful of your legal rights and constraints. Here are some of the questions on everyone’s mind.

Can I cancel employees’ planned vacations in case we need them for staffing?

You have the right to do this should you require those employees’ presence in the event of a public health emergency. However, we encourage you to remember a few things:

• To minimize discontent, encourage volunteers to cancel first (consider how airlines handle overbooked flights by handing out vouchers for future travel).
• Ensure that cancellations are commensurate with the potential risk. Is your practice of the kind that your operations will be necessary during a widespread COVID-19 outbreak? For a pediatric physician practice, the answer may be a resounding “yes.” For an aesthetic surgery practice, it may be “no.”
• If you cancel an already-approved employee’s vacation, consider whether you’ll be on the hook for cancellation fees, given your state’s laws, whether this falls within the confines of your locality’s definition for a “public health emergency,” and pursuant to your employee handbook
• Consult with your local health officials about their recommendations, including calling the state department of public health for guidance.

Am I allowed to tell employees where they can and cannot travel?

Yes. As featured in recent news, Intel prohibited employees from traveling to areas most impacted by COVID-19. You can restrict your employees’ travel to these destinations. You can also require that they self-quarantine for the CDC-recommended period upon return to the United States. At the time of this writing, a student who returned early from a study-abroad trip to Italy was recently diagnosed in Chicago.

Can I take the temperature of every employee and visitor before they enter the clinic?

Inquiring about an individual’s medical status can violate the Americans with Disabilities Act (“ADA”), and the ADA generally prohibits employers from performing or requiring medical examinations of their employees. Further, the Equal Employment Opportunity Commission (“EEOC”) says that taking someone’s temperature constitutes a “medical exam” under the ADA. These laws both have “teeth” (i.e., heavy penalties for violations), so it’s crucial to tread carefully.

Before implementing such a policy, you should consider whether COVID-19 poses any direct threat to your practice. Do you have infectious disease clinicians at your office? Is there an outbreak in your community? Do you have immunocompromised, elderly, or pregnant employees or patients? You should also consider what you’ll do with that information. Remember that a fever doesn’t mean someone has COVID-19 and everyone with COVID-19 won’t have a fever.

Can I force an employee to stay home if they have symptoms?

Yes! In fact, you could create liability for yourself if you allow asymptomatic worker into the workplace. Even if the person does not ultimately test positive for COVID-19, they may have the flu or the common cold—both of which can be dangerous to your patients and staff. It’s crucial that your employee handbook outlines your policies regarding sick employees and clearly explains how to handle illnesses.

Can I require that an employee who tested positive for COVID-19 stay home for the entire 14-day quarantine period?

Yes. You should also require that all coworkers who came into sufficiently close contact with that person to remain home for the full quarantine period and to get tested for COVID-19. Work closely with your public health authorities to determine an appropriate response, which will also likely involve having your clinic disinfected.

My employee has symptoms. . .

Do I need to notify all of our patients immediately, or can I wait for test results to come back?

Contact the local public health authorities and follow their recommendations. Frequently, they will be the party to make notifications or provide you with the information you’ll need to include in these situations.

It’s important that your practice’s managers are measured in their response. An overreaction can create chaos in times of public health emergencies. We suggest that you refresh all of your employees and managers on your employee policies and provide educational materials about COVID-19 and its symptoms.

During cold season, a large chunk of the population has the sniffles but does not have COVID-19. Regardless of what’s making an employee sick, ill or contagious workers should remain at home. This is a good opportunity to reeducate and remind everyone to keep known contagions away from your practice and patients.

Can I require that the employee get tested?

Yes, you can ask an employee showing symptoms of COVID-19 (or the flu) to get tested and remain home until the test has come back negative.

A nearby school is talking about closing. If they do, all of our adult patients will bring their kids to their appointments. Can I notify patients that this isn’t allowed?

You can. This just happened in Chicago, where a teacher-tested positive for COVID-19, resulting in school closure. If medically appropriate for your patients and practice, you might consider offering telemedicine options for patients home with their children. Other options include extending clinic hours into evenings and weekends while waiving cancellation fees to allow parents to reschedule appointments for times when they will not be responsible for childcare.

Remember that these patients’ children may have been exposed to the novel coronavirus, which means your patients may have been exposed. Contact your public health authorities to determine how to handle the situation. Find out whether your protection of your other patients and your workforce necessitates that you conduct all of these patient visits remotely, in a separate facility, or after a 14-day self-quarantine period has passed.

What’s my liability if COVID-19 spreads among my patients or employees?

Liability is often based upon a consideration of what someone knows or should have known, and whether their response to that knowledge is reasonable, negligent, reckless, or intentionally tortious. These are complex and nuanced topics.

One way to reduce your liability is to maintain a safe workplace. Indeed, OSHA requires that employers offer a workplace that is “free from recognized hazards likely to cause death or serious physical harm.” OSHA recommends that employers proactively work to identify whether employees are exposed to infectious diseases. The government recognizes that this can be difficult for small businesses and requires specialized knowledge, and they offer a program for small businesses to request a free on-site OSHA consultation.

Just remember that as an employer, learning about additional workplace risks can impose a requirement upon you to remedy them, while intentionally failing to detect them can also impose liability. You can read the Government’s OSHA Guidelines for Safety and Health Guidelines pamphlet here.

Another important aspect of proactive liability protection is to ensure that you’re working to identify dangers and implementing effective and reasonable preventive measures. There’s a concept in law that considers “reasonable” or “non-negligent” efforts to reflect those that are proportional to the likely harm. For example, if one child at a daycare wakes up with a 100* fever, it would be unreasonable to close all daycare facilities in the city. That response far exceeds the likely harm, and it “goes too far.”

Good ways to keep your liability down are likely to reflect ways to remain compliant with the other obligations imposed upon you — especially those outlined by OSHA:

• Address health hazards that pose the greatest risk first (i.e., Contact staff who encountered patients confirmed cases before suspected cases.)
• Use interim control measures until permanent ones become available (i.e., Allow pregnant or immunocompromised employees to stay at home until a vaccine is available.)
• Modify your response based upon the likelihood of exposure to a health hazard and the number of employees who might be exposed. Monitor local health authority and CDC alerts, learn about how the disease spreads, and educate yourself on symptoms. Share all of this information frequently with your staff in a variety of ways, including signage around your practice and emails to employees and patients
• Create a hazard control plan. Actually write down your plan for minimizing and responding to this risk, including outlining how you will respond to potential or confirmed coronavirus exposure.
• Defer to the experts and implement their recommended procedures regarding infection control, prevention, and detection.
• Offer personal protective equipment to employees as deemed appropriate.

Do not retaliate against employees who report potential hazards to you or to health authorities. Retaliation can create an entirely new—and very serious— source of liability for you!

Does this public health emergency mean I can “break” HIPAA?

No. All efforts should be made, pursuant to your practice’s HIPAA policies and procedures, to ensure that patients’ health information is protected. HIPAA’s privacy rule contains specific language relating to public health emergencies, so covered entities (those to whom HIPAA applies) may find that these circumstances dictate that they:

• Notify a patient that the exam room in which they were treated was previously used by a patient who has tested positive for COVID-19.
• Seek the advice and assistance of another healthcare provider in reviewing the medical condition of a patient who has tested positive for COVID-19 and providing treatment to that patient.
• Notify a patient’s other healthcare practitioners with whom they know the patient has recently interacted that the patient has tested positive for COVID-19.
• Notify public health authorities of the positive test of COVID-19.
• Notify healthcare workers who may have come into close contact with the positive or suspected-positive the patient so that they can take preventive measures.

Final thoughts

Information about the spread of COVID-19 is changing rapidly. Above all, we recommend that practices follow current CDC guidelines and stay abreast of developments in your state and locality.

While a public health crisis like COVID-19 does give you some leeway in your efforts to legitimately and reasonably protect your patients and staff from infection, you still need to understand their legal rights.

For guidance about specific circumstances, consult a healthcare attorney in your state.