Important considerations in reopening for services and returning employees
to the workplace
by John J. Balitis
As orthodontic practices across the country emerge from closures and furloughs to reopen for patients, critical questions inevitably will arise relating to safety and risk avoidance. What steps need to be taken if a reinstated worker reports that he or she has tested positive for COVID-19? How should a practice manage a third party who enters the office and claims to be exempt from a mask requirement because of a medical condition? What can a practice do to reduce its potential liability if an employee or a patient claims that he or she contracted the virus at a practice site?
Answering these questions involves, among other things, an intersection of OSHA and CDC guidelines, an interpretation of those guidelines, and some subjective analysis.
Managing a positive test scenario
Prepare a plan
The first step for an orthodontic practice in regulating an infected worker must be taken well before the worker tests positive. The Occupational Safety and Health Administration (OSHA) has made clear in current guidance that all employers are expected to prepare a written exposure prevention, preparedness and response plan that addresses, among other items, how the business will manage the situation if an employee in the workplace contracts the virus. Legal counsel can assist in creating a plan that is tailored to a particular practice. The plan should cover the following points:
Maintain employee privacy. Employers generally must keep the identity of a worker who tests positive confidential. This may be challenging, but the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and general privacy expectations dictate this requirement. Even though circumstances may make obvious who tested positive, a practice nonetheless must take this approach.
Address the physical workspace. The Centers for Disease Control and Prevention (CDC) has published detailed guidance, available online, that informs employers about the process of sanitizing and restricting access to work areas occupied or visited by an infected worker. Orthodontic practices should adopt these protocols in the written plan and follow them.
Require a quarantine. Send any infected workers home for a quarantine period that is defined by their particular situation. Consider the timing of their positive test, when their symptoms started to emerge, and the need for a confirmed negative test before they reenter the workplace.
Notify co-workers and third parties. Without disclosing the infected worker’s identity, advise co-workers as well as third parties such as vendors or patients who came into contact with the infected worker about the potential for exposure. Encourage these individuals to self-monitor for symptoms, take necessary precautions, and seek treatment and testing if necessary.
Assess and execute on possible collateral exposure. Perhaps the most complex aspect of addressing an infected-employee scenario is how to manage co-workers who may have been exposed. A thorough consideration of CDC guidance and OSHA recommendations suggests that individuals who have sustained contact of 15 minutes or more and within 6 feet of an infected person are at high risk for contracting the virus. Co-workers who meet these criteria should be excluded from the workplace to quarantine, while other employees who had only occasional contact should be encouraged to self-monitor for symptoms but may continue working on-site.
Collaborating for everyone’s benefit
All employees should become familiar with the practice’s written plan so that everyone will know what to expect when faced with a positive diagnosis at work. Having clear and thoughtful processes in place should reduce anxiety and improve morale.
Assessing claimed medical exemptions to mask requirements
Scores of viral videos have emerged online depicting confrontations among individuals over wearing masks. Mask requirements have become political flashpoints, but also have been targeted by individuals who claim that they are precluded by a medical condition from wearing a mask. How should a practice manage an individual who claims to be exempt from a mask requirement because of a disability or other medical condition?
Title I of the ADA precludes employers with 15 or more workers from discriminating against employees with disabilities. If an employee presents a covered practice with a claimed exemption from a mask requirement, the practice must assess whether the employee’s claimed condition constitutes a bona fide disability under the ADA and, if it does, then engage in an interactive dialogue with the employee to determine whether a reasonable accommodation is possible without posing undue risk to the employee or others. This should be a familiar and straightforward process for covered practices.
When it comes to Title III of the ADA, however, the process of managing a mask exemption claim by a third party—a vendor or a patient, for example—may not be as familiar. Title III requires places of public accommodation to remove barriers that adversely affect persons with disabilities from utilizing the public accommodation. Individuals with conditions that they know or perceive to preclude them from wearing a face covering routinely are taking the position that they are exempt under Title III from having to wear a mask on-site, regardless of whether a particular business has implemented a mask requirement that applies to everyone.
The Department of Justice recently issued guidance which makes clear that the ADA does not provide a blanket exemption from mask requirements for individuals with conditions that may prevent them from wearing face coverings. If a practice encounters a third party claiming to exercise such an exemption, and the practice for safety reasons does not want to allow the third party on-site for treatment or other purposes without a mask, the practice likely is within its rights to stand firm on its mask policy in light of the current federal guidance.
Although there is no way to guarantee that such position is risk-free, the guidance should support a strong defense to a third-party claim.
Liability for infections allegedly sustained at a practice site
The congressional stalemate over further stimulus relief includes a political disagreement about whether any such package should provide for business immunity from liability for infections allegedly sustained at business premises. This liability potentially can involve both employees and third parties. Lawsuits already have been filed in multiple jurisdictions by infected individuals in both of these groups, and some federal legislators are predicting an explosion of litigation in this area if protections for businesses are not enacted.
The most fundamental measure for an orthodontic practice to take in reducing this risk is to develop and implement a comprehensive written exposure prevention, preparedness and response plan, discussed in this article. Because most infection claims will be based on a negligence theory, the critical line of defense will be for the practice to prove that it acted reasonably in preparing for and preventing the spread of the virus at a practice site. Further, because an infected claimant will have to prove, in addition to negligence, that he or she contracted the virus at the targeted site, having a strong plan in place will allow a practice to defend itself by arguing that it is less likely that the infection originated at the site, as opposed to some other location that the claimant visited.
Finally, for infected employees in particular, practices should keep in mind that a claimed workplace infection may constitute an industrial injury that could be covered exclusively by a workers’ compensation scheme. A practice should consult with its industrial carrier if such a claim is made by a staff member or provider.