Panelists answer the questions physicians asked related to practice liability during our webinar, “Medico-legal Concerns for the Private Practice During COVID-19.”
This is part 2 of a 2-part series.
PART 1: Q&A: Legality on Safety & Testing
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?
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.
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.
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.
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.
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.
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.