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FAQS: Key Employment-Related Questions For Reopening Medical Offices

6.22.20

As medical offices, clinics, and surgical centers re-open, employers will not only face questions about clinical protocols and recommended steps for disinfecting and safeguarding the workplace from COVID-19, but must also respond to questions from employees about your expectations and their related fears and concerns. Members of our Healthcare Practice Group have assembled the most common questions medical offices are asking and provided best practices and key recommendations below. Keep in mind that the following guidance is general and may not apply to your factual situation.

Please note that circumstances and rules related to the COVID-19 crisis are continually evolving. When making decisions, practices should confer with counsel to ensure that they are aware of the most current guidance.

1. Can one of our employees refuse to return to work?

2. Can a practice employee refuse to return to work if they are above 65 years old and feel unsafe?

3. If an employee who is under 65 states that they have an underlying condition such as congestive heart failure, asthma or another condition that makes them particularly vulnerable to COVID-19, but their duties cannot be performed remotely, what should the practice do?

4. What actions can our practice take if an employee is exhibiting flu-like or COVID-19-like symptoms but refuses to leave the workplace?

5. Can practices require an employee to notify management if they have been exposed, have symptoms, and/or have tested positive for the COVID-19 coronavirus?

6. Has the CDC relaxed essential worker return-to-work standards after confirmed or suspected COVID-19 exposure?

Yes. To ensure continuity of operations, the CDC has advised that certain critical infrastructure workers may be permitted to continue to work following potential COVID-19 exposure, provided they remain asymptomatic and additional precautions are implemented.

If an employee becomes sick, they must be sent home immediately, surfaces in their workspace must be cleaned and disinfected, and information on persons with whom the employee had contact during the previous 48 hours must be compiled for follow up.

7. The CDC has issued more particularized return to work criteria for healthcare workers with confirmed or suspected COVID-19. What is that guidance?

Taking local circumstances into account, either a test-based or symptom-based strategy may be used to determine when a practice’s employees may return to the workplace. Specifically, for symptomatic employees:

8. For employees of healthcare providers with laboratory-confirmed COVID-19 test but who have not had any symptoms, employers can deploy either strategy depending on local circumstances:

Upon return to work, healthcare workers should wear a facemask while in the facility until all symptoms are completely resolved or at baseline. A facemask instead of a cloth face covering should be used by these providers for source control during this time period while in the facility. After this time period, these individuals should revert to the facility policy regarding universal source control regarding during the pandemic. A facemask for source control does not replace the need to wear an N95 or higher-level respirator (or other recommended PPE) when indicated, including when caring for patients with suspected or confirmed COVID-19. Of note, N95 or other respirators with an exhaust valve might not provide source control. Healthcare workers should also self-monitor for symptoms and seek re-evaluation from a healthcare provider if respiratory symptoms recur or worsen.

9. Can a practice take an employee’s temperature at work to determine whether they might be infected?

Yes, preferably before the employee enters the facility. In fact, some state and local authorities have mandated daily temperature checks of employees. 

Your practice should monitor circumstances as they evolve, but under the current pandemic circumstances, you can (and as noted, may be required to) take employee temperatures daily as a screening tool. You should also consider asking employees, at least once a week, whether they are experiencing cough; shortness of breath or difficulty breathing; or at least two of the following symptoms: fever; chills; repeated shaking with chills; muscle pain; headache; sore throat; or new loss of taste or smell. 

As stated above, some state and local authorities are mandating these regular symptom screenings for employees. There is no specified format for documenting this screening information, but it must be treated as confidential and should never be placed in an employee’s personnel file. It may be retained in a separate, confidential medical file or in a central COVID-19 screening file. Explain to employees that this information is being obtained privately in order to maintain a safe workplace. 

10. Should the practice collect additional medical information from employees when taking their temperatures or screening for COVID-19 symptoms?

No, unless otherwise required by authorities, no additional medical information should be obtained.

11. What precautions are needed for individuals who are taking the temperatures of employees, applicants, or other patients/visitors?

The safest approach would be to assume the testers are going to be exposed potentially to someone who is infected who may cough or sneeze during their interaction. You must therefore determine what mitigation efforts can be taken to protect the employee by eliminating or minimizing the hazard, including PPE.

Different types of devices can take temperature without exposure to bodily fluids. Further, the tester could have a face shield in case someone sneezes or coughs. Consult OSHA, the CDC, or other authoritative sources for information regarding recommended PPE.

12. Do any OSHA requirements apply when practice employees wear face coverings?

In a practice setting, these standards are not new. If you require employees to wear the face coverings or other PPEs, then OSHA’s PPE standard will apply. OSHA’s standard applies to “all protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers.” Before you can require an employee to use PPE, your practice must, among other things,

Prepare a plan that is periodically reviewed, among other steps, including employee specific requirements. 

13. Should practices have staff sign or attest to anything in order to protect the staff and office?

To educate patients and improve compliance, your office should prominently post summaries of new COVID-19 protocols that you have adopted, such as screening and limiting visitors, handwashing or sanitizing practices that visitors may be required to follow, in addition to your distancing practices. Such postings will also serve as reminders for office staff. 

Additionally, in support of documented training that the practice provides to its staff, your office should consider posting reminders about the availability and proper use of personal protective equipment (PPE) and any other new protocols adopted as a result of the COVID-19 crisis. Your practice should focus on training staff to comply consistently with all of your OSHA and CDC-compliant policies and to notify the practice administrator promptly of all questions or concerns.

Conclusion

Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our Healthcare Practice Group, or any member of our Post-Pandemic Strategy Group Roster. You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.


This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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