Q&A: Practice Liability During COVID-19

This is part 2 of a 2-part series.

PART 1: Q&A: Legality on Safety & Testing

Q: The CDC guidelines that no one over the age of 60 for nonessential services. I’m an internist and this is difficult in primary care. What can be defined as nonessential? Are physicals nonessential?

Dr. Segal: This is just a recommendation and not set in stone. There are many physicians over the age of 60 currently working in intensive care units with active COVID-19 patients. Use good judgment. Your individual risk will depend upon your general health. Are you biologically 60? 70? 50?

Q: Can you request employee to show you the results of her COVID test?

Thiersch: Presently, COVID-19 is considered a “direct threat” by the EEOC. As long as COVID-19 is considered a “direct threat,” as deemed by the EEOC, the employer can require employee testing as long as it is job-related and consistent with business necessity. Any information obtained from the tests should be kept private and confidential as protected health information.

Q: Are we liable for the employee if they convert to a positive covid test?

Thiersch: It will depend on where and how they likely got it and what sort of procedures and practices you had implemented in the office to protect them. Under OSHA, employers have a general duty to provide a workplace free from recognized hazards. Generally speaking, if protocols are followed (distancing, masks, screening, hand washing), it will be very difficult, if not impossible, to show that the virus was obtained at work. Further, some states are implementing immunity provisions in statutes to protect employers.

Q: I am a small medical practice. Am I responsible if my staff get COVID? How do we know where they got it in the first place?

Thiersch: Under OSHA all employers have a general duty to provide a workplace free from recognized hazards. You therefore have a responsibility to implement safety practices and procedures to protect your workers from COVID-19. With that said, if protocols are followed (distancing, masks, screening, hand washing), it will be very difficult, if not impossible, to show that the virus was obtained at work. Additionally, you may be required to provide a period of paid sick leave under the Families First Coronavirus Act regardless of where the contracted the illness. Please note there are several exemptions for healthcare businesses and small businesses which may apply in your situation.

Q: Can a patient refuse to wear a mask citing the ADA?

Thiersch: Not necessarily. While presently, COVID-19 is considered a “direct threat” by the EEOC so businesses may require that customers wear masks when entering. However, the ability to deny services is not absolute; if the person is unable to wear a mask due to a disability then the business may need to engage them in an interactive process to see if an accommodation can be made that still protects the employees and other patients.

Q: Are verbal consents OK since we are trying to do without signatures/pen use?

Thiersch: Generally, yes, but this is not advisable. Consents should discuss risks and complications and answer questions so the patient can make an informed medical decision, which is the core of obtaining “informed consent.” It does not need to be reduced to writing for the patient to give consent. However, the written record of the consent is significantly stronger evidence that the discussion took place when compared to your memory or note in the medical record. It may be better to continue to get the signatures and just sterilize the pen between uses. Written consents are strongly advised.

Q: Do we need to tell patients we are reporting to county authorities their results?

Thiersch: A patient’s authorization is not required when disclosing COVID-19 health information to public health authority or as required by law this information should be present in your HIPAA compliant Privacy Policy that the patient signs.

Q: Is it legal to require all new employees to be COVID-19 tested before starting them? And is it legal to require those who said they have had the disease to be tested before returning to work?

Thiersch: Yes, as long a COVID-19 is considered a “direct threat” by the EEOC employers may screen job applicants who have received a conditional employment offer provided all entering employees of the same type are similarly screened. And employers may test employees for COVID-19 infection in order to prevent the spread of the virus. The employer may not require an antibody test to confirm the employee had COVID-19 in the past, however.

A note from Alex Thiersch, JD: This is not legal advice and shouldn’t be construed as such. Every situation is different, and it is very difficult, if not impossible, to provide general advice without knowing more about the factual circumstances of the individual case. Folks should always talk to their own healthcare counsel about their individual situation.